AS TO THE ADMISSIBILITY OF

Application No. 15268/89

by Brian Peter DORAN

against the Netherlands

The European Commission of Human Rights sitting in private on 30 November 1992, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, 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 26 May 1989 by B.P. DORAN against the Netherlands and registered on 20 July 1989 under file No. 15268/89;

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 citizen of the United Kingdom, born in 1945 and residing in Glasgow.  Before the Commission the applicant is represented by Mr. G.H. van Asperen , a lawyer practising in Amsterdam.

The facts of the case, as submitted by the parties, may be summarised as follows:

At the request of the United Kingdom authorities, pending a formal request for extradition, the applicant was provisionally arrested ( voorlopige aanhouding ) on 13 February 1989.  On 14 February 1989 at 14.30 hours the public prosecutor ordered the applicant's provisional detention in police custody ( inverzekeringstelling ) pursuant to Article 14 of the Extradition Act ( Uitleveringswet ).

On 15 February 1989 the investigating judge ( rechter-commissaris ) at about 13.00 hours ordered the applicant's detention on remand ( inbewaringstelling ) on the basis of Article 15 of the Extradition Act for a maximum period of 20 days.

On 2 March 1989 the Ministry for Foreign Affairs received a formal extradition request from the United Kingdom.  This request was forwarded to the Ministry of Justice, where it arrived on 6 March 1989.

After having received the formal extradition request the public prosecutor, basing himself on Article 22 of the Extradition Act, on 7 March 1989, ordered the continuation of the applicant's detention on remand.

On the same day the applicant requested the Regional Court ( Arrondissementsrechtbank ) of Amsterdam to discontinue his extradition detention, claiming that a continuation of his detention was unlawful as, in his opinion, the maximum period of 20 days, provided for in Article 16 para. 1(c) of the Extradition Act, had expired on 6 March 1989 at 24.00 hours.

In addition the applicant started summary proceedings ( kort geding ) before the President of the Regional Court of The Hague, claiming his immediate release as the continuation of his detention was ordered after the expiry of the provisional detention order of 15 February 1989. The President of the Regional Court of The Hague rejected the applicant's claim on 8 March 1989, considering that the order of 7 March 1989 had been issued in time, as in his opinion, the period of 20 days expired only on 7 March at 13:00 hours.

The applicant's request to discontinue his extradition detention was examined by the Amsterdam Regional Court on 14 March 1989.  The Regional Court considered that the decision of 7 March 1989 by the public prosecutor to continue the detention (under Article 22 of the Extradition Act) lacked a legal basis, as the order for the applicant's detention on remand had, in its opinion, expired on 6 March 1989 at 24.00 hours. The Regional Court, therefore, declared the applicant's detention unlawful and ordered his release.

On the same day at about 15.30 hours the applicant's lawyer presented the release order to the authorities of the remand centre where the applicant was detained. The authorities of the remand centre informed the lawyer that the public prosecutor intended to issue a new detention order and that therefore the applicant was not to be released.

At about 16.40 hours, the applicant was transferred to the Amsterdam Central Police Station on the basis of a new detention order, which, in view of the formal extradition request of 2 March 1989, had been issued by the public prosecutor pursuant to Article 21 para. 1 of the Extradition Act.

A further request by the applicant of 17 March 1989 to discontinue his extradition detention was rejected on 4 April 1989 by the Regional Court of Amsterdam.  It held, inter alia , that the applicant's second detention on the basis of the formal extradition request was not contrary to Dutch law.  It added that the question whether or not the applicant was unlawfully detained at the time of the public prosecutor's second detention order did not affect the lawfulness of this new detention.

On 2 May 1989 the Regional Court of Amsterdam ordered the applicant's further detention and by judicial order of 16 May 1989 authorised the applicant's extradition in respect of all but one of the charges and advised the Minister of Justice accordingly.

By decision of 5 June 1989 the Deputy Minister of Justice ordered the applicant's extradition and the applicant was extradited on 28 June 1989.

COMPLAINTS

1. The applicant complains under Article 5 para. 1 (f) of the Convention that he was unlawfully detained as from 7 March 1986 and that he should have been immediately released by the remand centre authorities following the presentation by his lawyer of the Amsterdam Regional Court's release order of 14 March 1989 to the authorities of the remand centre .

2. The applicant also complains under Article 5 para. 4 of the Convention that both the authorities of the remand centre and the public prosecutor failed to execute the release order of 14 March 1989 immediately.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1989 and registered on 20 July 1989.

On 10 February 1992 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.

The Government's observations were submitted on 24 April 1992 and the applicant's observations in reply were submitted on 3 June 1992.

THE LAW

1. The applicant complains under Article 5 para. 1 (f) of the Convention that he was unlawfully detained as from 7 March 1989.  He is of the opinion that the authorities of the remand centre should have released him immediately following the decision by the Amsterdam Regional Court of 14 March 1989 endorsing the applicant's point of view.

Article 5 para. 1 (f) of the Convention, in so far as relevant, provides:

"1. 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 against whom action is being taken with a view to deportation or extradition."

The Government consider that the applicant has exhausted all domestic remedies concerning the lawfulness of his detention, although adding that he could have instituted summary proceedings demanding execution of the Amsterdam Regional Court's release order of 14 March 1989 and that the applicant could have entered a claim for compensation for alleged tort within the meaning of Article 1401 of the Civil Code ( Burgerlijk Wetboek ).

Having regard to the Government's view that the applicant has exhausted the domestic remedies, the Commission does not find it necessary to examine the alternative remedies suggested by the Government for the purpose of Article 26 of the Convention.

2. The Government consider that the manner in which the applicant was deprived of his liberty was in accordance with the statutory procedure and was lawful.

They subscribe to the opinion of the President of the Regional Court of The Hague that the applicant's detention from 7 March 1989 was lawful.

The Government further argue that the applicant's subsequent detention, as from 14 March 1989, was lawful since it was based on a new detention order issued by the public prosecutor on a different legal basis.

The applicant points out that the Government disregard the fact that the authorities of the remand centre , in which the applicant was detained, failed to release him immediately following the release order of 14 March 1989, which, in his opinion, affected the lawfulness of his subsequent detention.

Article 5 para. 1 (f) of the Convention requires that the arrest or detention should be "in accordance with a procedure prescribed by law", and "lawful", and it must relate to a person "against whom action is being taken with a view to deportation or extradition".

The Commission recalls that as regards the question whether a detention is "lawful", including whether it complies with "a procedure prescribed by law", the Convention refers essentially to national law, which is in the first place for the national courts to interpret and apply (cf. Eur. Court H.R., Bozano judgment of 18 December 1986, Series A no. 111, paras. 54 and 58).  However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (cf. Eur. Court H.R., Wassink judgment of 27 September 1990, Series A no. 185, para. 24).

The Commission notes that the Regional Court, in its decision of 4 April 1989 on the applicant's request for release, considered that the applicant's detention as from 14 March 1989 was not contrary to Dutch law and that the possible unlawfulness of his detention at the time the public prosecutor issued a new detention order did not affect the lawfulness of this new order.

The Commission does not consider this finding of 4 April 1989 by the Regional Court of Amsterdam to be arbitrary or unreasonable and therefore concludes that the applicant's detention as from 14 March 1989 was ordered "in accordance with a procedure prescribed by law" within the meaning of Article 5 para. 1 (f) of the Convention.

The remaining question is whether the failure of the authorities of the remand centre to immediately act upon the release order of 14 March 1989 by the Amsterdam Regional Court, as presented to them by the applicant's lawyer, constituted an arbitrary deprivation of the applicant's liberty.

The Commission notes that the time between the presentation of the release order to the remand centre authorities and the applicant's second arrest was slightly over one hour.

The Commission recalls that if the continued detention is due to an abuse of authority, detention ceases to be justified under Article 5 para. 1 (f) of the Convention (cf. No. 9172/80, Dec. 17.12.81, D.R. 27 p. 222).

The Commission considers that this part of the application raises issues of fact and law which can only be resolved by an examination of the merits. This complaint cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. No other grounds for inadmissibility have been established.

3. The applicant complains under Article 5 para. 4 of the Convention that he was not immediately released by the authorities of the remand centre after the presentation of the Regional Court's order thereto of 14 March 1989.

Article 5 para. 4 of the Convention provides that:

"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 Commission notes that on 14 March 1989 the Regional Court considered the public prosecutor's order of 7 March 1989 to prolong the applicant's detention to be unlawful and ordered the applicant's release.  The Commission further notes that the applicant's present complaint only concerns the execution of the release order.

The Commission considers that Article 5 para. 4 of the Convention does not cover, as such, the delay within which a release order should be executed.  However, it follows from the purpose and object of this provision that a release order should be executed within a reasonable period of time.

The Commission considers that this part of the application also raises issues of fact and law which can only be resolved by an examination of the merits. This complaint cannot, therefore, be declared manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. No other grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission            President of the Commission

    ( H.C. KRÜGER)                           (C.A. NØRGAARD)