Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33715/96

by Hendrik Cornelis DRAYER

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

Mrs G.H. THUNE, President

MM J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 24 May 1996 by

Hendrik Cornelis DRAYER against the Netherlands and registered on

8 November 1996 under file No. 33715/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1942, and resides in

Zwolle, the Netherlands. In the proceedings before the Commission, he

is represented by Mr S.C. de Lange, a lawyer practising in Amsterdam.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 6 October 1983, the public prosecutor of Amsterdam issued an

international arrest warrant in respect of the applicant, who was

suspected of fraudulent bankruptcy. The applicant was arrested in

Belgium on 23 March 1985. He remained in detention throughout the

subsequent extradition proceedings.

On 29 March 1985, the public prosecutor of Amsterdam transmitted

the official documents relating to the criminal proceedings against the

applicant to the Netherlands Ministry of Justice. On 2 April 1985, the

Netherlands authorities addressed a formal request for the applicant's

extradition to the Belgian authorities.

By letter of 24 May 1985, the Belgian Minister of Justice

(Minister van Justitie) informed the Dutch Deputy Minister of Justice

(Staatssecretaris van Justitie) that the applicant's extradition in

order to stand trial for fraudulent bankruptcy was permissible. It was

further stated that the Belgian Minister would inform the Dutch Deputy

Minister at some later point in time of the date and place of the

actual extradition.

On 28 May 1985, the Deputy Minister of Justice transmitted a copy

of the letter of 24 May 1985 to the public prosecutor of Amsterdam. On

7 August 1985, the public prosecutor requested the Dutch Ministry of

Justice to give information about the state of affairs as regards the

execution of the applicant's extradition.

The applicant was extradited on 22 August 1985 and released the

same day. By judgment of 7 May 1987, the Regional Court

(Arrondissementsrechtbank) of Amsterdam acquitted the applicant of the

charges against him.

On 4 May 1986, the applicant complained to the Dutch National

Ombudsman of the delay between his arrest on 23 March 1985 and his

actual extradition on 22 August 1985. He submitted that, although he

had agreed to a so-called abbreviated extradition procedure provided

for in Article 19 of the Benelux Extradition Treaty (Benelux

Uitleveringsverdrag), he was only extradited after about five months.

According to the applicant, this delay was to be attributed to the

failure of the Dutch Minister of Justice to act promptly.

After an investigation, the National Ombudsman concluded on

23 June 1987, that the Minister of Justice had acted in an improper

manner towards the applicant by not clearly responding to the request

by the Belgian authorities for approval of the abbreviated extradition

proceedings and the failure to directly take action on the decision

allowing the applicant's extradition to the Netherlands.

On 29 July 1987, the applicant filed a request under Article 89

of the Netherlands Code of Criminal Procedure (Wetboek van

Strafvordering) with the Regional Court of Amsterdam for damages

relating to his pre-trial detention.

In its decision of 8 August 1988, the Regional Court awarded the

applicant compensation in a total amount of 199,700 Dutch guilders for

pecuniary and non-pecuniary damage in respect of his detention in

Belgium pending extradition to the Netherlands. In this decision the

Regional Court held, inter alia:

"Damages resulting from the detention for extradition

The Court has noted the report issued by the National Ombudsman

on this subject. Also on grounds of this report, the court

considers that an amount of 150,000 Dutch guilders can be awarded

for non-pecuniary damage suffered."

The Regional Court awarded an additional amount of 49,700 Dutch

guilders for pecuniary costs relating to loss of income and to lawyers'

fees and other costs.

On 16 June 1989, the applicant started civil proceedings against

the Netherlands State before the Regional Court of The Hague, seeking

a declaratory judgment that the Dutch authorities had acted unlawfully

towards him by failing to co-operate in an expeditious extradition of

the applicant and seeking financial compensation for this unlawful act.

On 12 June 1991, the Regional Court found against the applicant

and, consequently, rejected his request for compensation. It held,

inter alia, that the Netherlands authorities had not deviated from the

normal procedures between the Netherlands and Belgium as regards

extradition requests and that there were no facts or circumstances on

grounds of which it should be held that the Netherlands State had acted

unlawfully towards the applicant.

The applicant's appeal against the judgment of 12 June 1991 was

rejected on 21 July 1994 by the Court of Appeal (Gerechtshof) of The

Hague. His subsequent appeal in cassation was rejected by the Supreme

Court (Hoge Raad) on 1 December 1995. As to the applicant's complaint

of the duration of the extradition proceedings, the Supreme Court

upheld the finding of the Court of Appeal that there is no legal

obligation to apply the abbreviated procedure as opposed to the regular

procedure as regards extradition requests between the Netherlands and

Belgium and that in this connection no special circumstance arises

where a person whose extradition has been requested has agreed to an

abbreviated procedure.

COMPLAINTS

Referring to the case of Kolompar v. Belgium (Eur. Court HR,

Kolompar v. Belgium judgment of 24 September 1992, Series A no. 235-C),

the applicant complains under Article 5 para. 1 (f) of the Convention

of the length of his detention pending his extradition to the

Netherlands. He submits that, if the Netherlands had applied the proper

procedures and had executed the extradition order immediately, he would

have been released months earlier.

THE LAW

The applicant complains under Article 5 para. 1 (f)

(Art. 5-1-f) of the Convention of the length of his detention pending

his extradition to the Netherlands.

Article 5 para. 1 (f) (Art. 5-1-f) of the Convention reads as

follows:

" Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

f. the lawful arrest or detention of a person to prevent

his effecting an unauthorised entry into the country or of a

person against whom action is being taken with a view to

deportation or extradition."

The Commission notes that the applicant's complaint about the

duration of his detention pending extradition as a consequence of the

failure of the Dutch authorities to act with due diligence was

considered by the Netherlands National Ombudsman to be well-founded.

The Commission further notes that on 8 August 1988, also in view of the

National Ombudsman's findings, the Regional Court awarded the applicant

compensation for non-pecuniary damage under Article 89 of the Code of

Criminal Procedure in an amount of 150,000 Dutch guilders in respect

of the time the applicant had spent in detention pending extradition.

It is true that an issue could arise under Article 5 para. 1 (f)

(Art. 5-1-f) of the Convention in respect of the duration of the

applicant's detention pending extradition as a consequence of the Dutch

authorities' failure to act with due diligence (cf. Eur. Court HR,

Chahal v. United Kingdom judgment of 15 November 1996, Reports 1996-V,

No. 22, para. 113).

However, in the present case the Commission considers that, in

view of the reasons given in the Regional Court's decision of

8 August 1988 for awarding the applicant compensation for non-pecuniary

damage in respect of his detention pending his extradition, the

applicant can no longer claim to be a victim within the meaning of

Article 25 (Art. 25) of the Convention of the duration of his detention

pending in that he can be considered as having obtained adequate

reparation at the domestic level.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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DRAYER v. THE NETHERLANDS

DRAYER v. THE NETHERLANDS

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