Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13147/87

by Peter William ROBERTS

against the Netherlands

The European Commission of Human Rights sitting in private

on 7 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, 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 18 June 1987

by Peter William ROBERTS against the Netherlands and registered

on 19 August 1987 under file No. 13147/87;

Having regard

- to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

- to observations submitted by the respondent Government on

19 May 1989 and the letter submitted by the applicant on

9 April 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen, born in 1935,

normally resident in Alvaston, Derby, and currently detained in Breda,

the Netherlands.

The facts, as submitted by the parties, may be summarised as

follows:

On 23 February 1987 the applicant was arrested and charged

with a drugs offence. He was detained in a police station.

On 27 February 1987, the applicant appeared with counsel

before the Examining Magistrate (rechter-commissaris) in Rotterdam in

connection with an application by the prosecution for his remand in

custody. At the conclusion of the hearing, the Examining Magistrate

remanded the applicant in custody and informed the applicant that

restrictions on his correspondence were to be imposed. In accordance

with established practice, the order imposing the restrictions was

served on the applicant.

On 4 March 1987, the applicant appeared with counsel and

interpreter before the Examining Magistrate in connection with an

application for an extension of his remand in custody. The application

was granted and the applicant was again informed that the restrictions

would remain in force.

The applicant did not oppose the imposition of restrictions by

lodging an objection against the order.

On 6 March 1987 the applicant wrote to his wife, explaining to

her what had happened.

It appears that some days later the applicant was sent to a

prison in Breda.

By letter of 19 May 1987, which reached the applicant on

20 May 1987, the Examining Magistrate with the District Court

(Arrondissementsrechtbank) of Rotterdam informed the applicant that

she had not forwarded his letter of 6 March 1987 because she was of

the opinion that sending it might obstruct the investigation. She

returned the letter of 6 March 1987 to the applicant.

On 20 July 1987, the Examining Magistrate lifted the

restrictions.

On 2 September 1987, the applicant was convicted by the

Rotterdam District Court for an offence under the Opium Act and

sentenced to 15 months' imprisonment. His appeal was dismissed by the

Hague Court of Appeal (Gerechtshof) on 29 March 1988 and by the

Supreme Court (Hoge Raad) on 7 February 1989.

RELEVANT DOMESTIC LAW AND PRACTICE

In the interests of the investigation, the Examining

Magistrate may order measures to be taken in respect of a suspect

during a preliminary judicial examination. The imposition of such

measures is based on Section 225 para. 1 of the Act promulgating the

Code of Criminal Procedure of 29 June 1925 (Wet van 29 juni 1925, Stb.

308 tot invoering van het nieuwe Wetboek van Strafvordering) in

conjunction with Article 132 of the Prison Rules, which permit the

Examining Magistrate to restrict a suspect's correspondence or the

visits he may receive. When processing an application for remand in

custody, the Examining Magistrate generally informs the suspect

whether the application is being granted, whether restrictions are

being imposed and what these comprise. If the suspect does not agree

with them, he may lodge an objection with the District Court pursuant

to Section 225 para. 3 of the Act promulgating the Code of Criminal

Procedure.

COMPLAINTS

The applicant complains of the stopping of his letter of

6 March 1987 to his wife and that it took more than ten weeks before

he was informed that it had not been forwarded. He submits that he

should have been informed immediately and asked to rewrite the letter.

He furthermore submits that his wife was very worried at not hearing

from him. The applicant invokes Article 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 June 1987 and registered

on 19 August 1987.

On 6 March 1989, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits.

The observations of the respondent Government were submitted

on 19 May 1989.

The applicant was granted legal aid by the Commission on

16 February 1990.

On 5 February 1990 the applicant's legal representative

applied for an extension in the time-limit fixed for the submission

of observations in reply to those of the Government. The time-limit

was extended until 15 February 1990.

By letter of 15 February 1990, the applicant's legal

representative stated that she was unable to submit any observations

in reply since the applicant's former lawyer in the proceedings in the

Netherlands had failed to respond to her request for information. By

telefax of 9 April 1990, the applicant's legal representative sent to

the Commission a letter from the applicant's former lawyer in the

Netherlands, which confirmed that there had been no objection lodged

in respect of the restrictions imposed on the applicant's

correspondence.

THE LAW

The applicant has complained that his letter to his wife was

stopped and that he was not informed of this for more than ten weeks.

He invokes Article 8 (Art. 8) of the Convention, which provides:

1. Everyone has the right to respect for his private

and family life, his home and his correspondence.

2. There shall be no interference by a public authority

with the exercise of this right except such as is in

accordance with the law and is necessary in a democratic

society in the interests of national security, public safety

or the economic well-being of the country, for the

prevention of disorder or crime, for the protection of

health or morals, or for the protection of the rights and

freedoms of others.

The Government submit that the applicant failed to object to

the restrictions on his correspondence and therefore failed to exhaust

his domestic remedies.

After examination of the facts as submitted by the parties,

the Commission finds that it is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of the above provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant failed to object to the

imposition of restrictions under paragraph 3 of section 225 of the Act

promulgating the Code of Criminal Procedure and has, therefore, not

exhausted the remedies available to him under Dutch law. Moreover, an

examination of the case as it has been submitted does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of

international law, from exhausting the domestic remedies at his

disposal.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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ROBERTS v. the NETHERLANDS

ROBERTS v. the NETHERLANDS

LEXI