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AS TO THE ADMISSIBILITY OF

Application No. 16679/90

by R.C.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 22 May 1990 by

R.C. against the Netherlands and registered on 7 June 1990 under file

No. 16679/90;

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 Colombian national, who at the time of the

introduction of the application was detained in Veenhuizen, the

Netherlands. Before the Commission he is represented by

Mr. T.A. de Roos, a lawyer practising in Amsterdam.

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

summarised as follows:

On 6 May 1989 the applicant was arrested on suspicion of having

committed an offence within the meaning of the Netherlands Opium Act

(Opiumwet).

On the same day, at about 23.00 hours, the assistant public

prosecutor (Hulp-Officier van Justitie) in accordance with Article 57

of the Code of Criminal Procedure (Wetboek van Strafvordering) ordered

the applicant's detention in police custody (inverzekeringstelling) for

two days. On 8 May 1989 the public prosecutor (Officier van Justitie)

ordered the assistant public prosecutor by telephone to prolong the

applicant's detention in police custody by two days under Article 58

of the Code of Criminal Procedure and to date and sign the prolongation

order on his behalf.

Article 58 para. 2 of the Code of Criminal Procedure reads:

"The order for detention in police custody is only valid for a

maximum of two days. In case of absolute necessity the order can

once be prolonged by the public prosecutor for a maximum period

of two days."

On the same day, in the presence of the applicant's lawyer and

an interpreter, a copy of the signed prolongation order was handed over

to the applicant as required by Article 59 of the Code of Criminal

Procedure. The order, inter alia, read:

"On behalf of the public prosecutor, Mr. V., and signed upon his

order by the assistant public prosecutor, E.S."

As, according to the applicant, Articles 58 and 59 of the Code

of Criminal Procedure require that such a prolongation order must be

signed by the public prosecutor in person, he started summary

proceedings (kort geding) before the President of the Regional Court

(Arrondissementsrechtbank) of Haarlem demanding his immediate release,

alleging that the prolongation order contained a substantial flaw

entailing nullity.

In his judgment of 9 May 1989 the Acting President of the

Regional Court rejected the petition, considering, inter alia, that

neither Article 59 of the Code of Criminal Procedure nor any other

statutory provision provides that a prolongation order, such as the one

at issue, must be dated and signed by the public prosecutor in person.

The Acting President added that it cannot be deduced from the statutory

system that there is a substantial flaw, when such an order is dated

and signed on behalf of the public prosecutor by someone resorting

under his authority and equally competent by law to order a person's

detention in police custody.

On 23 November 1989 the Court of Appeal (Gerechtshof) of

Amsterdam rejected the applicant's appeal against this decision. The

Court agreed with the Acting President of the Regional Court of Haarlem

that the law does not explicitly prescribe that a public prosecutor

must sign a prolongation order for detention in police custody in

person. The Court of Appeal further held that it could not be

considered that the procedure followed had harmed a reasonable interest

(redelijk belang) of the applicant, as the reason for the requirement

that such an order be signed was to enable a detainee to verify whether

the order had been issued by the competent authority.

In view of the decision of 10 November 1989 by the Supreme Court

(Hoge Raad) in another case, in which it rejected a similar complaint

(Rechtspraak van de Week 1989, Nr. 252), the applicant chose not to

avail himself of the possibility to file an appeal in cassation against

the judgment of 23 November 1989.

COMPLAINT

The applicant complains under Article 5 para. 1 (c) of the

Convention that the prolongation of his detention in police custody was

not "lawful" and that it was not ordered "in accordance with a

procedure prescribed by law".

THE LAW

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

(Art. 5-1-c) of the Convention that the prolongation of his detention

in police custody was not "lawful" and that it was not ordered "in

accordance with a procedure prescribed by law".

Article 5 para. 1 (Art. 5-1), in so far as relevant, provides 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:

...

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 (...)."

The Commission first notes that the applicant, in view of the

Supreme Court's decision of 10 November 1989, in which it rejected a

similar complaint, chose not to avail himself of the possibility to

file an appeal in cassation against the Court of Appeal's judgment of

23 November 1989.

The question therefore arises whether the applicant has exhausted

domestic remedies within the meaning of Article 26 (Art. 26) of the

Convention.

The Commission, however, does not find it necessary to resolve

this issue as the application is in any event inadmissible for the

following reasons.

The Commission recalls that the words "lawful" and "in accordance

with a procedure prescribed by law" in Article 5 para. 1 (Art. 5-1) of

the Convention essentially refer to domestic law. It is in the first

place for national authorities, notably the courts, to establish,

interpret and apply domestic law, but in so far as reference is made

to it in the Convention, the Convention organs have a certain limited

jurisdiction to control the manner in which domestic law is applied on

the national level. In particular, the Convention organs may verify

that there is no arbitrariness in the domestic decisions (cf. Eur.

Court H.R., Bozano judgment of 18 December 1986, Series A, No. 111,

paras. 54, 58 and 59).

The Commission first notes that the applicant does not argue that

the decision to prolong his detention in police custody was not taken

by a competent authority, but only that this order was not signed by

the public prosecutor himself.

The Commission notes that the national courts considered that the

order prolonging the applicant's detention in police custody was issued

in accordance with the procedural requirements under Dutch law, as

there is no statutory requirement that such a prolongation order be

signed by the public prosecutor in person.

Having regard to the fact that the prolongation of the

applicant's detention in police custody was ordered by the public

prosecutor in person, the finding by the Court of Appeal in respect of

the lawfulness of the prolongation order concerning the applicant's

detention in police custody cannot be regarded as arbitrary or

unreasonable.

The Commission therefore finds that the applicant's detention was

in conformity with the requirements of Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention.

It follows that 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 Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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R.C. v. THE NETHERLANDS

R.C. v. THE NETHERLANDS

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