Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21132/93

by Theodorus Albert Ivo PETERS

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 6 April 1994, the following members being

present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 16 December

1992 by Theodorus Albert Ivo PETERS against the Netherlands and

registered on 8 January 1993 under file No. 21132/93;

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

1. Particular circumstances of the case

The applicant is a Dutch citizen, born in 1966, and is at

present detained at 's-Hertogenbosch. Before the Commission he

is represented by Mrs. T.N.B.M. Spronken, a lawyer practising in

Maastricht.

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

be summarised as follows.

The applicant is serving a six years' prison sentence for

drugs offences. On 21 November 1991, the authorities of the

remand centre "Overmaze" in Maastricht ordered the applicant to

give a sample of his urine in order to have it examined, since

his behaviour suggested that he had been using drugs. As the

applicant refused to co-operate, a disciplinary measure of five

days' confinement in his own cell was imposed on the same day.

The applicant filed a complaint with the Supervisory

Commission (Commissie van Toezicht) on 23 November 1991. He

complained that the obligation to undergo a urine test violated

his right to physical integrity, as protected by the Constitution

and Article 8 of the Convention and argued that the legal basis

for the restriction of this right was insufficient as the rules

relating to urine tests are set out in a Circular and not in an

Act. He further stated that in his case the Circular had not been

complied with, as the test in reality was not motivated by his

own conduct but formed part of a daily routine involving the at

random testing of detainees.

Following a hearing on 16 December 1991, at which the

applicant and his lawyer were present, the Supervisory Commission

rejected the complaint in its decision of 10 February 1992.

Noting that, according to the rules on compulsory urine tests in

prisons, a prison director can order a detainee to give urine in

order to have it examined for the presence of drugs, the

Supervisory Commission found that there was a sufficient legal

basis for the restriction of the applicant's constitutional right

to physical integrity, that there was no indication that the test

was not ordered in accordance with the applicable rules and that

the disciplinary measure imposed on the applicant for his refusal

to co-operate was not unreasonable.

On 5 March 1992 the applicant appealed to the Central Board

for the Application of Criminal Law (Centrale Raad voor Straf-

rechtstoepassing). In addition to his initial submissions before

the Supervisory Commission, he submitted a statement of another

detainee, who confirmed that urine tests are carried out daily

as part of a general programme of testing detainees at random.

The applicant further complained that the urine samples obtained

are not properly sealed so that it is easy to falsify them.

By decision of 19 June 1992 the Central Board for the

Application of Criminal Law rejected the applicant's appeal and

upheld the decision of the Supervisory Commission. In respect of

the complaint about the sealing of the urine samples, it held

that it could not deal with this complaint as the applicant had

refused to co-operate with the test.

2. Relevant domestic law

Section 22 of the Criminal Code (Wetboek van Strafrecht)

provides that the rules on discipline in remand centres and

prisons will be determined by Order in Council (Algemene

Maatregel van Bestuur). To this end, the Prison Rules (Gevangenis-

maatregel) have been adopted in 1953. Section 28a was inserted

in the Prison Rules in 1988. Under para. 1 of this provision a

director of a remand centre or prison can oblige a detainee, in

the interests of order, safety or the proper conduct of affairs

in the institution, to give urine in order to have it examined

for the presence of drugs. Para. 2 provides that the Minister of

Justice will set further rules on the taking and analysing of the

urine samples. These rules are contained in a Ministerial

Circular of 1 December 1988. Both the Prison Rules and the

Circular have been published.

COMPLAINTS

The applicant complains under Article 8 of the Convention

that the obligation to give urine to the prison authorities in

order to have it examined for the presence of drugs, constitutes

an interference with his right to respect for his private life

and that this interference is not justified under para. 2 of

Article 8, in particular since it cannot be regarded as being "in

accordance with the law". He submits that, in his case, the urine

test was not carried out in accordance with the Circular as it

was not motivated by his own conduct but formed part of a daily

programme involving the at random testing of detainees and that

the Circular of 1 December 1988 is too vague to satisfy the

requirements of the Convention.

The applicant further complains that the Circular offers

inadequate safeguards against abuse by the authorities in that

the authorities can impose a urine test without prior

authorisation of a court and in the absence of legal assistance

and that it is only possible to complain once a urine test has

been ordered, that the taking of urine is carried out in a

humiliating way as the urine has to be produced in the presence

of a supervisor, that the samples of urine obtained are not

properly sealed so that it is easy to falsify them and that the

Circular does not state whether the samples should be kept and

how a countercheck could be carried out.

THE LAW

1. In respect of the applicant's complaints that urine samples

taken in prison are not properly sealed and that there are no

rules as to whether or not these samples should be kept and how

a countercheck could be carried out, the Commission recalls that

it only examines the personal situation of the applicant and not

the general scope of the laws applied to him (cf. No.10491/83,

Dec. 3.12.86, D.R. 51 p. 41).

Insofar as these complaints have been raised in the domestic

proceedings, the Commission finds that, as the applicant in fact

has not given a sample of his urine to the prison authorities,

he cannot be considered a victim of a violation of the Convention

within the meaning of Article 25 (Art. 25) of the Convention in

respect of these complaints.

This part of the application is therefore incompatible

ratione personae with the provisions of the Convention and must

consequently be rejected under Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant complains under Article 8 (Art. 8) of the

Convention that his obligation to give urine to the prison

authorities in order to have it examined for the presence of

drugs, constitutes a humiliating interference with his right to

respect for his private life and that this interference is not

justified under para. 2 of Article 8 (Art. 8-2), in particular

since it cannot be regarded as being "in accordance with the

law", as the urine test was not motivated by his own conduct but

formed part of a daily programme involving the at random testing

of detainees. He further complains that the Circular of 1

December 1988 is too vague to satisfy the requirements of the

Convention and that the Circular offers inadequate safeguards

against abuse by the authorities

Article 8 (Art. 8) of the Convention, insofar as relevant,

reads:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a

democratic society (...) for the prevention of

disorder or crime (...)."

The Commission observes that the applicant was ordered to

undergo a urine test and that a disciplinary sanction was imposed

on him, as he refused to comply with the order of the director

of the remand centre. To this extent he can claim to be a victim

of a violation of the Convention within the meaning of Article

25 (Art. 25) of the Convention.

As regards the way in which urine samples are allegedly

taken the Commission has also had regard to Article 3 (Art. 3)

of the Convention, which prohibits inhuman or degrading

treatment. It considers, however, that given the generally

accepted desirability to effectively control the use of drugs in

prisons, the treatment complained of, i.e. that a detainee has

to produce the urine in the presence of a supervisor, does not

attain the minimum level of severity required in order to fall

within the scope of this provision.

In respect of Article 8 (Art. 8) of the Convention the

Commission recalls that a compulsory medical intervention, even

if it is of minor importance, must be considered an interference

with the right to respect for private life (cf. No. 8239/78, Dec.

4.12.1978, D.R. 16 p. 184; No. 8278/78, Dec. 13.12.1979, D.R. 18

p. 154 and No. 10435/83, Dec. 10.12.1984, D.R. 40 p. 251). It,

therefore, considers that the obligation to undergo a urine test

constitutes an interference with the applicant's right to respect

for his private life within the meaning of Article 8 para. 1

(Art. 8-1) of the Convention.

The question thus arises whether this interference was

justified under para. 2 of Article 8 (Art. 8-2) of the

Convention.

The Commission notes that the interference complained of was

based on Section 28a of the Prison Rules and the Circular of 1

December 1988, which contain the rules on the taking of urine

from detainees in order to examine it for the presence of drugs.

The Commission notes that in the national proceedings the

applicant has not raised his complaints that the Circular of 1

December 1988 is too vague to satisfy the requirements of the

Convention and that the Circular offers inadequate safeguards

against abuse by the authorities.

Recalling that to exhaust domestic remedies within the

meaning of Article 26 (Art. 26) of the Convention the person

concerned must have raised before the national authorities, at

least in substance, the complaint he puts before the Commission

(cf. No. 12164/86, Dec. 12.10.88, D.R. 58 p. 63), the Commission

finds that it is therefore not competent to deal with this aspect

of the applicant's complaint.

The Commission notes that both the Supervisory Commission

and the Central Board for the Application of Criminal Law

considered that the director's order in the present case was in

accordance with the applicable rules.

The Commission recalls that it is primarily the task of

national authorities to apply and interpret domestic law, but

that the Convention organs have a limited jurisdiction to control

the manner in which it is done (cf. No. 10689/83, Dec. 14.5.84,

D.R. 37 p. 225). The Commission does not consider the findings

by the national authorities in the present case to be arbitrary

or unreasonable. The Commission, therefore, accepts that the

interference at issue was "in accordance with the law" within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

As to the "necessity" of the interference at issue, the

Commission finds that the "necessity" for interference with the

exercise of the right of a convicted prisoner to respect for his

private life must be appreciated having regard to the ordinary

and reasonable requirements of imprisonment. The "prevention of

disorder or crime", for example, may justify wider measures of

interference in the case of such a prisoner than in that of a

person at liberty (cf. No. 8317/78, Dec. 15.5.1980, D.R. 20 p.

44 at p. 91 and No. 9054/80, Dec. of 8.10.1982, D.R. 30, p. 113;

and, mutatis mutandis, Eur.Court H.R., Golder judgment of

21.2.1975, Series A no. 18, p. 21, para. 45).

The Commission is satisfied that the interference complained

of can reasonably be considered necessary in a democratic society

for the prevention of disorder or crime and thus as justified

under Article 8 para. 2 (Art. 8-2) of the Convention.

It follows that this complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second

Chamber

(K. ROGGE) (S. TRECHSEL)

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PETERS v. THE NETHERLANDS

PETERS v. THE NETHERLANDS