Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19083/91

by R.G.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 October 1993, 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

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 21 October 1991

by R.G. against the Netherlands and registered on 15 November 1991

under file No. 19083/91;

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 citizen, born in 1954 and resident at

Amsterdam. He is represented before the Commission by Ms. Ties

Prakken, a lawyer at Amsterdam.

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

summarised as follows.

Since 12 October 1990 the applicant was detained in Spain pending

his extradition to the Netherlands.

In May 1991 the applicant's then lawyer asked the public

prosecutor (officier van justitie) and the investigating judge

(rechter-commissaris) in the Netherlands for access to the case-file

regarding the criminal case against the applicant. This request was

granted by the investigating judge on 5 June 1991, but the documents

that were made available were in fact not the whole case-file.

On 30 August 1991 the applicant was extradited to the Netherlands

and provisionally detained by the Dutch police on the suspicion of

murder, alternatively manslaughter. On 2 September 1991 the applicant

was detained on remand by the investigating judge for a period of six

days, which was prolonged on the same day by another six days.

On 4 September 1991 the investigating judge decided that the

applicant and his lawyer would not be given access to certain documents

regarding the criminal investigation as long as this was justified by

the requirements of the investigation. The reason which was given was

that certain investigatory measures could be impeded or disturbed if

the applicant had access to the documents concerned.

On 9 September 1991 the applicant appealed against this decision.

In his appeal he stated that the refusal to grant him access to certain

parts of the case-file prejudiced his defence and that he was entitled

to verify, on the basis of the evidence in the case, whether his

detention was justified and, if need be, to request a judge to examine

the justification for his detention. He referred in this regard to

Article 5 para. 4 of the Convention and to the judgment of the European

Court of Human Rights in the Lamy case (Eur. Court H.R., judgment of

30 March 1989, Series A no. 151).

On 10 September 1991 the Regional Court

(Arrondissementsrechtbank) of Amsterdam ordered the applicant's

detention on remand for 30 days. The applicant appealed against this

decision on 13 September 1991.

On 17 September 1991 the Regional Court decided on the

applicant's appeal against the decision of 4 September 1991. The Court

considered the appeal well-founded. It stated that the applicant's

defence was seriously prejudiced by the refusal to give him access to

the documents concerned and that he was entitled to examine, on the

basis of the evidence against him, whether his detention was justified.

Consequently, the applicant should urgently be given access to the

documents concerned.

On 23 September 1991 the applicant's lawyer was given access to

certain documents which had previously been withheld from him (minutes

of the hearing of two witnesses and certain pages from reports on

telephone tapping).

On 16 October 1991 the Court of Appeal (Gerechtshof) of Amsterdam

rejected the applicant's appeal against the decision of 10 September

1991 regarding his detention on remand.

COMPLAINTS

The applicant complains of violations of Article 5 para. 4 of the

Convention in that decisions on the applicant's detention on remand

were taken without the applicant having been given access to documents

in the case-file which were relevant to the question of detention. He

points out that these documents were available to the public

prosecutor, the investigating judge and the Regional Court and that

there was therefore no equality of arms and no truly adversarial

procedure. He refers to the judgment in the Lamy case and considers

that this case-law should also be applicable in the present case.

THE LAW

The applicant complains of violations of Article 5 para. 4

(Art. 5-4) of the Convention in that decisions on his detention on

remand were taken without him having been given access to documents in

the case-file which were relevant to the question of detention. He

refers in this respect to the judgment in the Lamy case.

Article 5 para. 4 (Art. 5-1) of the Convention provides as

follows:

"Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a court

and his release ordered if the detention is not lawful."

The applicant argues in particular that the documents initially

available to him did not show the existence of serious evidence which

could justify his detention on remand whereas the crucial documents

from which his involvement in the offence could emerge were withheld

from him. He claims that, although on appeal these documents were

available to him, he was originally unable to challenge the lawfulness

of his detention on remand on the basis of the restricted case-file.

He further observes that for a request to the Regional Court to

revoke the detention order under Article 69 of the Code of Criminal

Procedure (Wetboek van Strafvordering) to be effective, he would have

needed access to all the documents in the case-file. He therefore

considers that he still is a victim of the alleged violations of

Article 5 para. 4 (Art. 5-4) of the Convention.

The Government submit that the applicant was initially denied

access to the documents as the investigating judge feared that the

applicant or his representative might exert unlawful influence on

certain witnesses whose names appeared in those documents and who had

not yet been questioned by the investigating judge.

The Government further argue that the present case differs from

the Lamy case. The preliminary investigation in Belgium is secret and

inquisitorial and during the first thirty days of pre-trial detention,

both the suspect and his lawyer are denied access to the entire case-

file. Dutch law of criminal procedure is of a moderately accusatorial

nature and only allows temporarily for a limited restriction of access

to the case-file. Thus, on the basis of a domestic remedy which led

to the Regional Court's decision of 17 September 1991, the applicant

obtained access to the entire case-file and was able to challenge the

lawfulness of his detention. The respondent Government therefore

consider that the applicant can no longer be considered a victim within

the meaning of Article 25 (Art. 25) of the Convention of the alleged

violations of the Convention.

The Government also observe that the refusal of access to certain

documents in the case-file did not render the detention unlawful since

the courts automatically review the lawfulness of a detention whenever

an extension of such detention is requested. This is illustrated in

the instant case by the fact that the applicant's appeal against the

order of 10 September 1991 prolonging his detention on remand was

rejected on 16 October 1991 by the Court of Appeal.

Finally, the Government, whilst expressly declaring not to rely

on non-exhaustion of domestic remedies, point out that the applicant

could have filed a request to the Regional Court under Article 69 of

the Code of Criminal Procedure to have the detention order revoked.

The Commission observes that, under Article 25 para. 1

(Art. 25-1) of the Convention, it "may receive petitions ... from any

person ... claiming to be a victim of the rights set forth in (the)

Convention".

The Commission recalls its case-law according to which it falls

first to the national authorities to redress any alleged violation of

the Convention (see e.g. No. 10668/83, Dec. 13.5.87, D.R. 52 pp. 177,

181).

The Commission notes that the applicant was detained on remand

on 2 September 1991 and that the investigating judge denied the

applicant and his representative full access to the case-file on 4

September 1991. However, when deciding on the applicant's objection

against this restriction, the Regional Court granted the applicant full

access to all the documents on 17 September 1991. Moreover, after the

applicant had been granted access to the full case-file, the Court of

Appeal on 16 October 1991 confirmed the lawfulness of the prolongation

of the applicant's detention on remand.

In these circumstances, the Commission considers that the

applicant, by making use of domestic remedies available to him, has

obtained adequate redress at the domestic level for the violations

which he now alleges before the Commission. The Commission concludes

that the applicant can therefore no longer claim to be a victim of the

alleged violations within the meaning of Article 25 (Art. 25) of the

Convention.

It follows that the application is inadmissible under Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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R.G. v. THE NETHERLANDS

R.G. v. THE NETHERLANDS

LEXI