Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20314/92

by Franklin VELTHUIS

against Portugal

The European Commission of Human Rights sitting in private

on 5 April 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 April 1991

by Franklin VELTHUIS against Portugal and registered on

17 July 1992 under file No. 20314/92;

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

Rules of Procedure of the Commission;

Having regard to :

- reports provided for in Rule 47 of the Rules of Procedure

of the Commission;

- the observations submitted by the respondent Government on

2 June 1993 and the observations in reply submitted by the

applicant on 10 December 1993;

Having deliberated;

Decides as follows:

THE FACTS

Particular circumstances of the case

The applicant is a Dutch citizen, born in 1950, and at

present detained in Portugal.

The facts of the present case as submitted by the parties

may be summarised as follows.

On 31 May 1989 in Amsterdam the applicant received a

telephone call from a Portuguese acquaintance, J.M., who asked

him to come to Portugal as soon as possible. On 1 June 1989 the

applicant travelled to Portugal where he was arrested and

detained on arrival at Lisbon airport on suspicion of drug

trafficking. He was remanded in custody. A judicial decision of

2 June 1989 confirmed his detention on remand.

It then appeared that J.M. had already been arrested on 26

May 1989 and that he had collaborated with the police in

persuading the applicant to travel to Portugal where the police

intended to arrest him.

In accordance with Article 213 of the Code of Criminal

Procedure the conditions of the applicant's detention on remand

and its maintenance were regularly submitted to judicial control:

on 19 August 1989, 20 November 1989, 6 February 1990 and 3 May

1990. The applicant did not appeal against the decisions by which

his detention on remand was maintained.

On 5 February 1990 the applicant lodged a 'habeas corpus'

appeal to the Supreme Court (Supremo Tribunal de Justiça). He

alleged that his detention on remand had become illegal since it

had exceeded a certain period.

On 14 February 1990 the Supreme Court declared the detention

on remand to be lawful and rejected the appeal.

After spending nearly 20 months (1 June 1989 - 28 January

1991) in detention on remand, the applicant was sentenced for

drug trafficking on 28 January 1991 by the District Court

(Tribunal de Circulo) of Portimao to eleven and a half years'

imprisonment and a fine of 3 million escudos. The court also

decided to expel him from the country for a period of 10 years.

In contrast, J.M. received a lenient sentence as a reward for

having collaborated with the police.

The applicant appealed to the Supreme Court which, on

14 November 1991, confirmed the judgment against him.

The applicant unsuccessfully complained to various

Portuguese authorities about the deceitful manner in which he had

been persuaded to travel to Portugal.

On 20 September 1991 the Netherlands Embassy in Lisbon

addressed a 'note verbale' to the Portuguese Ministry of Foreign

Affairs, in which the Embassy stated, inter alia:

"S'il devait s'avérer qu'en effet un

ressortissant néerlandais fut attiré comme

présenté ci-dessus afin de pouvoir l'arrêter au

Portugal, les autorités néerlandaises ne peuvent

y voir que manque de respect pour la souveraineté

des Pays-Bas.

Lesdites autorités sont de l'avis que dans ce cas

la situation d'avant juin 1989 devrait être

rétablie et que la coopération luso-néerlandaise

en ce qui concerne la lutte contre le trafic

international de drogues trouverait son compte Ã

ce que le procès contre le ressortissant

néerlandais mentionné fût transféré aux Pays-Bas,

si besoin en est après une demande

d'extradition."

The Portuguese Ministry of Foreign Affairs, in its reply,

denied that there had been any lack of respect for the

sovereignty of the Netherlands and further stated that a transfer

of the applicant to the Netherlands for the purpose of serving

his sentence could be considered after Portugal had ratified the

Council of Europe Convention on the subject.

Relevant domestic law

Provisions on detention on remand are contained in the Code

of Criminal Procedure (CCP).

A re-examination of such detention shall take place every

three months. The competent juge shall then decide whether the

detention shall be maintained or the detained person shall be

released (Article 213 para.1 CCP).

Article 215 of the CCP provides for a maximum length of

detention on remand.

The implementation and maintenance of detention measures may

be contested by means of an appeal lodged with the court of

appeal. Specific rules of procedure apply to this appeal: the

appeal is immediately and separately transmitted to the competent

court of appeal (Articles 406 para. 2 and 407 para. 1 c) CCP),

which is bound to rule on the case within a time-limit of 30 days

from the day it receives the relevant files (Articles 219 and 427

CCP).

Moreover, a person who considers himself to be a victim of

an unlawful arrest or detention on remand may lodge a 'habeas

corpus' appeal, provided that the conditions for this

extraordinary appeal, laid down in Article 220 a) and d)

CCP(arrest) or Article 222 para. 2 a) and c) CCP (detention), are

met.

Article 417 of the Criminal Code provides for sanctions

against officials who act contrary to the law when enforcing

measures of detention. Complaints of this kind must be lodged

with the public procecutor's office.

COMPLAINTS

The applicant claims that his arrest and detention were

illegal, because he was brought to Portugal by deceitful means

on the initiative of the Portuguese police. He invokes Article

5 para. 1 (a) and (c) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 April 1991 and

registered on 17 July 1992.

On 29 March 1993 the Commission decided to bring the

application to the notice of the respondent Government and to

invite them to submit written observations on its admissibility

and merits.

The Government's observations written in Portuguese were

submitted within the indicated time-limit on 2 June 1993.

Following an extension of the time-limit, the Government

submitted the French translation of their observations on 30

August 1993. The applicant's observations in reply were submitted

on 10 December 1993.

On 10 December 1993 the applicant was granted legal aid.

THE LAW

1. The applicant claims that his arrest and detention were

illegal because he was persuaded to travel to Portugal by

deceitful means on the initiative of the Portuguese police. He

invokes Article 5 para. 1 (a) and (c) (Art. 5-1-a, 5-1-c) of the

Convention, which read 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:

a) the lawful detention of a person after conviction

by a competent court ; ...

c) the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent

legal authority on reasonable suspicion of having

committed an offence or when it is reasonably

considered necessary to prevent his committing an

offence or fleeing after having done so ; ..."

The Commission finds that the applicant's complaint concerns

the alleged unlawfulness of his arrest and detention on remand

and, implicitly, the alleged unlawfulness of his detention after

his conviction. It will therefore examine each of these aspects

separately.

2. As to the applicant's arrest and detention on remand

The Government do not deny that the Portuguese police

collaborated with the applicant's acquaintance, J.M., in order

to persuade the applicant to go to Portugal so that they could

arrest him for suspected drug offences. They submit, however,

that the application is inadmissible for non-compliance with

Article 26 (Art. 26) of the Convention, both as regards

exhaustion of domestic remedies and the six months' rule.

The Government contend that the applicant did not challenge

his detention on remand before the Court of Appeal. Thus he

appealed neither against the judicial decision of 2 June 1989

confirming his detention on remand after his arrest, nor against

the subsequent decisions maintaining his detention on remand. The

Government also point out that if the applicant had considered

that his arrest was illegal he should have lodged a complaint

with the competent public procecutor's office in order to have

the officials concerned sanctioned.

The Government note that the applicant initially failed to

lodge a 'habeas corpus' appeal with the Supreme Court. This

extraordinary appeal enables the lawfulness of detention to be

verified. The Government acknowledge that later, on 5 February

1990, the applicant lodged such an appeal. However, in these

proceedings the applicant only alleged that his detention on

remand had become illegal since it had exceeded a certain period.

He did not claim that his arrest and detention on remand had been

unlawful. Therefore, the Government consider that the complaint

has not been raised in substance.

Additionally, the Government submit that, even assuming that

domestic remedies have been exhausted, the applicant did not

observe the six months' time-limit laid down in Article 26 (Art.

26) of the Convention, since the application was introduced on

10 April 1991 and the last domestic judicial decision concerning

this issue was taken on 3 May 1990 (the decision controlling and

maintaining the applicant's detention on remand).

The applicant submits that he experienced some practical

difficulties in having the alleged illegality of his arrest and

detention on remand examined by the Portuguese courts. He

unsuccessfully complained to various Portuguese authorities about

the deceitful manner in which he had been persuaded to travel to

Portugal.

The Commission recalls its constant case-law that exhaustion

of domestic remedies pursuant to Article 26 (Art. 26) of the

Convention requires an applicant "to make normal use of those

domestic remedies which are likely to be effective and adequate

to remedy the matters of which he complains" (No. 11471/85,

Crémieux v. France, Dec. 19.01.89, D.R. 59 p. 67, at p. 80). The

Commission also recalls that in order to exhaust domestic

remedies an applicant "must have raised before the national

authorities, at least in substance, the complaint he puts to the

Commission" (No. 11798/85, Castells v. Spain, Dec. 7.11.89, D.R.

63 p. 89).

As regards the facts of the present case, the Commission

accepts that the applicant may have experienced some practical

difficulties in having the alleged illegality of his arrest and

detention on remand examined by the Portuguese courts. However,

the Commission notes that the applicant did not lodge any

ordinary appeal against the decision to remand him in custody or

against the subsequent decisions maintaining his detention on

remand. Nor did he lodge an immediate 'habeas corpus' application

with the Supreme Court or a complaint with the public

prosecutor's office concerning the alleged unlawfulness of his

arrest and detention. The Commission further notes that, although

the applicant later lodged a 'habeas corpus' appeal with the

Supreme Court, he did not raise, at least in substance, before

that Court the issue which he puts before the Commission.

In these circumstances, the Commission concludes that the

applicant did not exhaust domestic remedies in respect of his

complaint

that his arrest and detention were allegedly unlawful because of

the deceit used in bringing him to Portugal. It follows that this

part of the application must be rejected pursuant to Articles 26

and 27 para. 3 (Art. 26, 27-3) of the Convention.

3. As to the lawfulness of the applicant's detention after his

conviction

The Commission considers that implicit in the applicant's

complaint about the deceit employed in his case is an allegation

that his detention after conviction was also unlawful. However,

apparently the applicant did not base his appeal to the Supreme

Court against conviction and sentence on the allegedly illegal

manner in which he was persuaded to travel to Portugal in order

to be arrested. Nevertheless, even assuming that the applicant

raised this matter, at least in substance, in his appeal, the

Commission cannot find that the circumstances in which the

applicant went to Portugal could make his subsequent detention

after conviction and sentence unlawful.

The Commission therefore finds that this part of the

application is manifestly ill-founded within the meaning of

Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the

Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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VELTHUIS v. PORTUGAL

VELTHUIS v. PORTUGAL

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