Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19046/91

by Y.E.

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

A. WEITZEL

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 February 1991

by Y.E. against the Netherlands and registered on 7 November 1991 under

file No. 19046/91;

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 Turkish citizen, born in 1965 and residing at

Breda, the Netherlands. He is represented before the Commission by Mr.

A. Goedkoop, a lawyer practising at Breda, the Netherlands.

The facts as presented by the parties may be summarised as

follows.

On 11 August 1990, the applicant was arrested at Breda as

suspected of attempted homicide. On the same day, he was provisionally

detained (inverzekeringstelling). On 14 August 1990, the Public

Prosecutor made a request for his continued provisional detention

(bewaring). However, on the same day the Investigating Judge rejected

this request, and the applicant was immediately released.

Against the decision of the Investigating Judge, the Public

Prosecutor appealed to the Regional Court (Arrondissementsrechtbank)

of Breda, which on 28 August 1990 annulled the decision of the

Investigating Judge and issued a detention order (bevel tot bewaring)

valid for a period of six days. In his application the applicant

states that he was arrested the same day, whereas the Government state

that the arrest took place on 29 August 1990 at 17.22 hours. In

confirmation hereof, the Government have submitted an official report

by the two police officers who effected the arrest.

On 3 September 1990, the Investigating Judge, at the request of

the Public Prosecutor, decided to prolong the applicant's detention for

another six days.

On 4 September 1990, the Regional Court ordered the applicant's

detention on remand (gevangenhouding) for a period of 30 days.

Against the Regional Court's decision of 4 September 1990, the

applicant appealed to the Court of Appeal (Gerechtshof) of

's-Hertogenbosch. He states that he lodged the appeal on 5 September

1990, whereas, according to the Government, the date was 6 September

1990. On 5 October 1990, the Court of Appeal rejected the applicant's

appeal against the Regional Court's decision of 4 September 1990. On

9 October 1990, the Regional Court decided to prolong the applicant's

detention on remand for a further period of 30 days.

On a so-called "detention card" (preventievenkaart) submitted by

the applicant, the expiry dates of the above-mentioned three periods

of detention are indicated as being 4 September, 10 September and 10

October 1990.

The applicant states that the Regional Court decides once a week

on prolongations of detention on remand, which meant that in his case

a decision would normally have been taken on 2 October 1990, since, if

the matter was examined one week later, on 9 October 1990, the period

of 30 days would already have expired on 8 October 1990. However, on

2 October 1990 the Court of Appeal had not yet decided on the

applicant's appeal against the detention order of 4 September 1990, and

this was in the applicant's opinion the reason why the Regional Court

decided to postpone its decision regarding the prolongation of the

detention on remand until 9 October 1990.

COMPLAINTS

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

Convention in that, on the one hand, the Court of Appeal did not decide

speedily on the applicant's appeal against the Regional Court's

decision of 4 September 1990 and, on the other hand, the Regional Court

postponed its decision of 2 October 1990 with the effect of depriving

the applicant of a judicial ruling before the expiry of his term of

detention.

2. Without referring to any specific provision of the Convention,

the applicant also complains that Dutch law does not indicate at what

time the execution of a provisional detention order (bevel tot

bewaring) begins. The relevant time could be the moment of the arrest

or the time when the arrested person is admitted into the House of

Detention, but in any case the relevant time should be indicated in the

documents. By not being precise on this point, Dutch law is, in the

applicant's opinion, not in conformity with the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 February 1991 and registered

on 7 November 1991.

On 1 April 1992 the Commission decided to invite the Netherlands

Government to submit their observations on the admissibility and merits

of the application.

The Government submitted their observations on 5 June 1992. The

applicant's observations in reply were submitted on 28 July 1992.

THE LAW

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

(Art. 5-4) of the Convention in that, on the one hand, the Court of

Appeal did not decide speedily on the applicant's appeal against the

Regional Court's decision of 4 September 1990 and, on the other hand,

the Regional Court postponed its decision on 2 October 1990 with the

effect of depriving the applicant of a judicial ruling before the

expiry of his term of detention.

Article 5 para. 4 (Art. 5-4) of the Convention reads 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 Commission considers that the second part of the applicant's

complaint also raises a question of the lawfulness of the applicant's

detention within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) of

the Convention, which reads as follows:

"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:

...

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 question may be asked whether, when domestic law provides for

an appeal against a court's decision to detain a person on remand,

Article 5 para. 4 (Art. 5-4) requires that a decision on such an appeal

should be taken speedily. However, the Commission does not find it

necessary in the present case to determine this issue, since in any

event it cannot find that the requirement of speediness was violated

by the Court of Appeal which ruled on the applicant's appeal about four

weeks after the appeal had been lodged.

It follows that in this regard there is no appearance of a

violation of the Convention in the present case.

As regards the complaint that the decision of 9 October 1990 to

prolong the applicant's detention was taken after the expiry of the

previous period of detention, there is disagreement between the parties

as to when this period expired. The applicant has stated that it

expired on 8 October 1990, whereas the Government have indicated that

the correct date was 10 October 1990.

The Commission notes that, according to a document provided by

the Government, the applicant's arrest took place on 29 August 1990 at

17.22 hours. His detention was ordered first for two consecutive

periods of six days each and then for a period of 30 days. It follows

that the three periods expired on 4 September, 10 September and 10

October 1990 respectively. This calculation is further supported by

a "detention card" submitted by the applicant according to which the

period of detention for 30 days expired on 10 October 1990.

Consequently, the Commission finds that the prolongation of 9

October 1990 was ordered before the previous period had expired and

that the detention cannot be regarded as unlawful or otherwise in

violation of Article 5 (Art. 5) of the Convention.

It follows that this part of the application is manifestly ill-

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

Convention.

2. The applicant also complains that Dutch law does not indicate at

what time the execution of a provisional detention order begins and

that it is unclear whether the relevant time is the moment of the

arrest or the time when the arrested person is admitted into the House

of Detention. The applicant considers that the relevant time should

in any case be indicated in the documents.

The Commission notes that it cannot examine in the abstract

questions of the conformity of domestic law with the Convention. In

the present case, there is no indication that, due to any uncertainty

in the law, the applicant was kept in detention for a longer period

than could be justified by the various detention orders.

In these circumstances, the Commission considers this complaint

also to be 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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Y.E. v. THE NETHERLANDS

Y.E. v. THE NETHERLANDS

LEXI