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HAGEMANN v. THE NETHERLANDS

Doc ref: 19084/91 • ECHR ID: 001-1786

Document date: April 1, 1992

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HAGEMANN v. THE NETHERLANDS

Doc ref: 19084/91 • ECHR ID: 001-1786

Document date: April 1, 1992

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 19084/91

by Louis HAGEMANN

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 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

A.V. ALMEIDA RIBEIRO

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 11 October 1991

by Louis HAGEMANN against the Netherlands and registered on 18 November

1991 under file No. 19084/91;

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 1955. When introducing

his application, he was detained in a prison at Maastricht, the

Netherlands. He is represented before the Commission by Mr. H.E.G.

Peters, a lawyer practising at Sittard, the Netherlands.

The facts as presented by the applicant may be summarised as

follows.

On 12 December 1990, while the applicant was serving a prison

sentence at Sittard, the Prison Director decided that he should be

separated from the other prisoners for a period of 30 days. On 15

December 1990, the applicant appealed against this decision to the

Complaints Board (beklagcommissie) at the prison at Sittard. A hearing

of the appeal was held at the prison at Sittard on 26 March 1991. The

applicant was then transferred to another prison, but he had been heard

on his appeal in that prison. On 26 March 1991, the Complaints Board

declared the appeal well-founded as regards that part of the measure

of separation which exceeded 14 days but unfounded as to the rest.

The Prison Director as well as the applicant appealed against the

decision of the Complaints Board. The appeal was examined by the

Appeals Board of the Penitentiary Section of the Central Board for

Criminal Law Application (beroepscommissie uit de sectie

gevangeniswezen van de Centrale Raad voor Strafrechtstoepassing) on 28

May and 25 June 1991. The applicant appeared before the Board on the

former and his lawyer on the latter date. In its decision of 3

September 1991, the Board rejected the applicant's appeal but declared

the Prison Director's appeal well-founded, annulled part of the

decision of the Complaints Board and declared the applicant's appeal

against the Prison Director's decision in its entirety unfounded. The

Appeals Board considered that the Prison Director's decision was

justified under Section 24 para. 3 (b) of the Prison Ordinance

(Gevangenismaatregel), which provides that separation can be ordered

when a prisoner, pending his transferral, cannot, according to the

reasonable judgment of the Director, be kept under control, if he lives

together with other prisoners.

In a separate appeal of 18 December 1990, the applicant had

appealed against a ministerial decision to transfer him from Sittard

to a prison at Veenhuizen. That appeal was rejected by the Appeals

Board in a separate decision of 4 September 1991.

COMPLAINTS

1. The applicant complains of a violation of Article 6 para. 1 of

the Convention in that his appeal against the Prison Director's

decision of 12 December 1990 was not heard within a reasonable time.

He points out that the Complaints Board took its decision on 26 March

1991, i.e. about three and a half months after he had lodged his

appeal. In the meantime, he had been transferred to another prison in

a different part of the country where his family, who lived near

Sittard, had great difficulties in visiting him. As his tranferral to

another part of the country was a serious interference with his private

life, the appeal should have been heard much earlier than was actually

done.

2. The applicant complains of a further violation of Article 6 para.

1 of the Convention in that he did not get a fair hearing of his

appeal. In fact, it appears from the decision of the Complaints Board

and the Appeals Board that the Prison Director had based his decision

to separate the applicant from other prisoners on rumours, according

to which the applicant might be involved in the preparation of

subversive acts or of an attempt to escape from prison by means of

hostage-taking. However, he was never informed of these rumours and

therefore had no possibility to defend himself against them.

THE LAW

The applicant complains of violations of Article 6 para. 1

(Art. 6-1) of the Convention in that his appeal was not heard within

a reasonable time and in that he did not have a fair hearing, since he

could not defend himself against the rumours upon which the decision

to separate him from other prisoners was based.

Article 6 para. 1 (Art. 6-1) of the Convention provides that, 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 a court.

The question arises whether this provision is applicable in the

circumstances of the present case.

The Commission notes, in this respect, that the decision to

separate the applicant from other prisoners was not a sanction for any

offence which the applicant had committed during his imprisonment. It

follows that in the proceedings concerned the applicant was not charged

with a criminal offence within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.

It is true that a person's placement during imprisonment and the

regime under which he serves his sentence may have certain

repercussions on his private life and on the opportunities he will have

of maintaining contact with his family. Nevertheless, the Commission

considers that the decisions which the prison administration takes on

such matters should be regarded as administrative decisions which do

not determine the prisoner's civil rights and obligations within the

meaning of Article 6 para. 1 (Art. 6-1) of the Convention.

Consequently, Article 6 para. 1 (Art. 6-1) of the Convention is

not applicable to the circumstances of the present case, and the

application is to be rejected as being incompatible ratione materiae

with the Convention 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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