Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19435/92

by Stephan ROELOFS

against the Netherlands

The European Commission of Human Rights (Second Chamber)

sitting in private on 1 July 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 20 January

1992 by Stephan ROELOFS against the Netherlands and registered

on 24 January 1992 under file No. 19435/92;

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 1968. When

introducing the application, he was detained in a prison at

Leeuwarden, the Netherlands. He is represented by Mr. G. de

Jonge, a lawyer at Maastricht.

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

summarised as follows.

On 18 May 1990, the Director of the Amsterdam House of

Detention "Havenstraat" ordered that the applicant, who was then

detained on remand at this House of Detention, should be kept in

isolation because of information that he was planning to abscond

with the help of a firearm. The firearm was to be hidden in a

football which would be kicked over the walls of the House of

Detention.

The applicant lodged a complaint against the decision to the

Complaints Board (Beklagcommissie) of the Supervisory Commission

(Commissie van Toezicht) of the House of Detention. On 26

February 1991, the Complaints Board declared the complaint

unfounded.

Against this decision the applicant lodged an appeal with

the Appeals Board (Beroepscommissie) of the Prisons Section of

the Central Board for the Application of Penal Law (Sectie

Gevangeniswezen van de Centrale Raad voor Strafrechtstoepassing)

in The Hague. On 22 July 1991, the Board declared the appeal

unfounded.

As a result of the isolation order the applicant spent 28

days in isolation at Veenhuizen and 30 days in isolation at

Maastricht. After a short period at the House of Detention at

Utrecht, he was placed, by decision of the Deputy Minister of

Justice dated 23 July 1990, in a special security prison (extra

beveiligde inrichting). He was then submitted to the so-called

merry-go-round system (carrouselsysteem), under which detainees

spend periods of six months in one special security prison after

another.

In the appeal proceedings brought by the applicant he

insisted that the person who had told the story about the escape

plans with the help of a firearm in a football should be heard.

It had in fact appeared that the source was another detainee who

had told this story to a "group leader" who in his turn had

informed the Director of the House of Detention. However,

neither the Complaints Board nor the Appeals Board agreed to

interrogating the detainee concerned.

COMPLAINTS

The applicant complains of a violation of Article 6 of the

Convention in that the isolation as well as the application of

the merry-go-round system were based on hearsay evidence by an

anonymous person who was not heard during the proceedings. The

applicant refers in this context to the Kostovski case (Eur.

Court H.R., judgment of 20 November 1989).

The applicant further complains of a violation of Article

5 of the Convention in that the merry-go-round system had no

basis in law. Consequently his detention under that system was

unlawful and there would be no effective remedy in the

Netherlands which should be exhausted in this regard.

THE LAW

1. The applicant complains of a violation of Article 6

(Art. 6) of the Convention in that his isolation as well as the

application of the merry-go-round system were based on hearsay

evidence by an anonymous detainee. Article 6 para. 1 (Art. 6-1)

of the Convention reads, insofar as relevant, as follows:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him,

everyone is entitled to a fair and public hearing

within a reasonable time by an independent and

impartial tribunal established by law."

Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the

Convention provides that everyone charged with a criminal offence

shall have the right "to examine or have examined witnesses

against him and to obtain the attendance and examination of

witnesses on his behalf under the same conditions as witnesses

against him".

The question therefore arises whether the decision to keep

the applicant in isolation and to subject him to the merry-go-

round system concerned the determination of his civil rights or

of a criminal charge against him.

In this respect the Commission first notes that the

applicant was at the relevant time detained. The decisions

complained of did not concern the question whether he should be

deprived of his liberty but merely the conditions under which his

further detention should be performed. The Commission considers

that the determination of the place and conditions of detention

are as a rule administrative matters which cannot be considered

to concern the determination of the detainee's civil rights.

There is no reason to make a different assessment in the present

case.

The Commission further notes that the detention regime

imposed by the decisions complained of was ordered as a security

measure and not as a sanction against the applicant for an

offence committed by him. The applicant was not charged with any

criminal or disciplinary offence, but the decisions were aimed

at eliminating a risk of the applicant absconding which was

considered to be serious. In these circumstances the Commission

considers that the proceedings did not concern the determination

of a criminal charge and that in these proceedings the applicant

was not charged with a criminal offence.

It follows that this part of the application is incompatible

with the Convention within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains of a violation of Article

5 (Art. 5) of the Convention in that the merry-go-round system

had no legal basis and in that his detention under that system

was therefore unlawful.

Article 5 para. 1 (Art. 5-1) of the Convention permits

deprivation of liberty in specific cases, for instance "after

conviction by a competent court" (para. 1 a) or "for the purpose

of bringing (a person) 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" (para. 1 c). In both

those cases, it is further required that the detention shall be

"lawful".

It has not been alleged that the applicant's detention at

the relevant time was in itself unlawful. The only question is

whether the detention became unlawful if, as claimed by the

applicant, the specific conditions under which he was detained

did not have a basis in law.

The Commission considers, however, that insofar as Article

5 para. 1 (Art. 5-1) of the Convention requires that detention

shall be lawful, it refers to the legal basis for the deprivation

of a person's liberty. It does not refer to the detention regime

which to a large extent may be determined by the administrative

authorities, it being understood that the regime must always

comply with the requirements of Article 3 (Art. 3) of the

Convention.

It follows that in the present case the applicant's

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

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 Chamber

(K. ROGGE) (S. TRECHSEL)

Menu

ROELOFS v. THE NETHERLANDS

ROELOFS v. THE NETHERLANDS

LEXI