Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12732/87

by Marja ATSMA

against the Netherlands

The European Commission of Human Rights sitting in private

on 13 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 12 February

1987 by Marja ATSMA against the Netherlands and registered on 12

February 1987 under file No. 12732/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1961 and at present

residing in Amsterdam. She is represented in the proceedings before

the Commission by Mr. G. Hamer, a lawyer, practising in Amsterdam.

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

follows:

In October 1985 the applicant had been detained for some time

in a prison (Penitentiaire Inrichting). During her detention the man

with whom she had cohabited before her detention frequently visited

her.

On 22 October 1985 he visited the applicant again.

During this visit one of the warders thought he saw the applicant

receiving a parcel from the visitor. A violent struggle between the

warders and the visitor ensued. After a search of the applicant and

her visitor no parcel was found.

By letter of 23 October 1985 the Director of the prison

informed the applicant's friend of her decision not to permit further

visits to the applicant during her detention. The applicant was

punished by solitary confinement for seven days.

By letter of 5 November 1985 the Deputy Director of the prison

informed the applicant of his decision not to allow the applicant's

friend to visit her during the rest of her detention.

On 8 November 1985 the applicant lodged a complaint with the

Supervisory Commission (beklagcommissie) of the prison. On the same

day she asked the "Month Commissioner" ("maand-commissaris") of the

prison to suspend the decision not to allow the applicant's friend to

visit her. The Month Commissioner did not suspend this decision.

By decision of 28 November 1985 the Supervisory Commission

declared the applicant's complaint well-founded. It held that under

the Prison Measure (Gevangenismaatregel) a detained person should be

informed of a decision not to allow certain persons to visit him

within 24 hours, in writing and with a statement of the reasons.

Since these requirements had not been met, the decision of the Prison

Board was null and void.

The Supervisory Commission announced that its President would

consider whether any compensation should be awarded, in consultation

with the Director of the Prison, in accordance with Section 57 para.

3 of the Principles of the Prison System Act (Beginselenwet

Gevangeniswezen).

By letter of 9 December 1985 the Director of the Prison

informed the applicant that her friend could again apply for visits.

By letter of 23 January 1986 the Secretary of the Supervisory

Commission informed the applicant that a decision on compensation had

not yet been taken as the Director of the Prison was on holiday.

On 27 January 1986 the applicant was released.

On 25 March 1986 the President of the Supervisory Commission

decided that no compensation would be granted to the applicant as the

applicant's complaint against the decision not to allow her friend to

visit her had been declared well-founded on merely formal grounds and

that he found the decision a reasonable one in the circumstances.

On 2 April 1986 the applicant appealed to the Prison System

Section of the Central Advisory Council for the Prison System, the

Care of Psychopaths and the Rehabilitation of Convicts (Centrale Raad

van Advies voor het Gevangeniswezen, de Psychopathenzorg en de

Reclassering). She submitted, inter alia, that the President of the

Supervisory Commission had taken his decision contrary to Article 6 of

the Convention because he had taken his decision in consultation with

the Director of the Prison without even hearing the applicant.

By letter of 15 April 1986 the applicant requested the Central

Advisory Council to hold a public hearing in her case, invoking

Article 6 of the Convention.

By letter of 13 May 1986 the Secretary of the Appeal

Commission of the Prison System Section of the Central Advisory

Council informed the applicant that her case would be dealt with in

writing. He submitted that Article 6 was not applicable in her case

since the determination of compensation in connection with a complaint

that had been found well-founded did not amount to a determination of

"civil rights and obligations" or "any criminal charge".

By letter of 16 May 1986 the applicant asked the Secretary of

the Appeal Commission of the Prison System Section of the Central

Advisory Council for a report on, or the records of, proceedings of

the consultation between the President of the Supervisory Commission

and the Director of the Prison and the documents sent between them

concerning the compensation decision. By letter of 22 May 1986 the

Secretary of the Appeal Commission of the Prison System Section of the

Central Advisory Council informed the applicant that the only existing

written document was the decision on compensation itself.

By letter of 21 May 1986 to the Secretary of the Appeal

Commission of the Prison System Section of the Central Advisory

Council the applicant explained her appeal further. She invoked

Article 8 of the Convention.

By decision of 14 August 1986 the Appeal Commission of the

Prison System Section of the Central Advisory Council rejected the

applicant's appeal. It held that the Director of the Prison could

reasonably have taken the decision. It also held that Article 6 of

the Convention was not applicable to procedures concerning the

establishment of compensation conducted after a complaint procedure in

which the parties could be heard.

COMPLAINTS

1. The applicant complains that the President of the Supervisory

Commission took his decision in consultation with the Director of the

Prison, who was one of the parties in the conflict concerning the

visits of the applicant's friend, whilst not consulting the applicant;

that the President of the Supervisory Commission waited to decide on

compensation until the Director of the Prison had returned from

holiday, which made compensation during her detention impossible; that

neither the President of the Supervisory Commission nor the Central

Advisory Council pronounced judgment publicly; that in their

decisions, the President of the Supervisory Commission and the Central

Advisory Council considered that the decision of the Director of the

Prison was reasonable, despite that the Supervisory Commission had

before declared that the decision was null and void and, therefore,

non-existent, and, that no public hearing took place before the

Central Advisory Council and that she, therefore, could not orally

explain her case.

The applicant invokes Article 6 of the Convention. She

submits that under Section 57 para. 3 of the Principles of the Prison

System Act, the President of the Supervisory Commission has to

consider whether compensation is possible, after the Supervisory

Commission has revised a decision upon a complaint by a detained

person where either a disciplinary punishment has been executed in

whole or in part, or the consequences of said decision can no longer

be undone. In special cases a monetary compensation may be granted.

The applicant submits that she, therefore, has a right to

compensation. This right is a "civil right" within the meaning of

Article 6 of the Convention, in her view.

2. The applicant complains that the decision of the Director of

the Prison not to allow the applicant's friend to visit her anymore

amounted to an interference with the applicant's private and family

life. This interference was not in accordance with the law since the

applicant was not informed of the decision within 24 hours in writing,

as required by the Prison Measure. Since the President of the

Supervisory Commission and the Central Advisory Council did not grant

any compensation, they let the violation pass unperceived and,

therefore, no effective remedy was available. The applicant invokes

Articles 8 and 13 of the Convention.

THE LAW

1. The applicant has complained of the proceedings before the

President of the Supervisory Commission and the Central Advisory

Council concerning compensation for a decision to impose a

disciplinary punishment that had been declared null and void. The

applicant has invoked Article 6 (Art. 6)of the Convention.

Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides:

"In the determination of his civil rights and

obligations..., everyone is entitled to a fair and public

hearing within a reasonable time by an independent and

impartial tribunal established by law".

The Commission notes that, under Section 57 para. 3 of the

Principles of the Prison System Act, the President of the Supervisory

Commission has to consider whether compensation is possible, after the

Supervisory Commission has revised a decision upon a complaint by a

detained person where, either a disciplinary punishment has been

executed in whole or in part, or the consequences of said decision can

no longer be undone. In special cases a monetary compensation may be

granted. Accordingly, the Commission observes that no right to any

particular compensation exists.

Consequently, the Commission is of the opinion that the

proceedings at issue did not concern the determination of any civil

right of the applicant and, therefore, fall outside the scope of

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

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

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

2. The applicant has complained of an interference with her

private and family life contrary to Article 8 (Art. 8) of the Convention.

In respect of Article 8 (Art. 8) the Commission notes that on 23

October 1985 the Director of the prison informed the applicant's

friend that he was no longer allowed to visit the applicant. By

letter of 5 November 1985 the applicant herself was informed of this

decision. By decision of 28 November 1985 the Supervisory Commission

declared the decision null and void. By letter of 9 December 1985 the

Director of the Prison informed the applicant that her friend could

again apply for visits to her.

The Commission concludes that the applicant obtained adequate

redress at the domestic level for the alleged violation of Article 8

of the Convention. She is therefore no longer able to claim to be a

victim within the terms of Article 25 para. 1 (Art. 25-1) 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.

3. The applicant has further complained that no effective remedy

was available to her since she did not receive any compensation for

the alleged lack of respect for her private and family life. She

invokes Article 13 (Art. 13) of the Convention.

Article 13 (Art. 13) of the Convention is worded in the following

terms:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy

before a national authority notwithstanding that the

violation has been committed by persons acting in an

official capacity."

It is established case law of the Commission that the word

"remedy" in this sense does not mean that the applicant's claim must

be vindicated and that the applicant must "win" (No. 10496/83, Dec.

14.5.84, D.R. 38 p. 189).

The Commission notes that in the present case the applicant

lodged a complaint with the Supervisory Commission against the

decision of the prison board not to allow her friend to visit her.

This complaint was successful to the extent that the decision was

declared void and that as from 9 December 1985 on the applicant's

friend could again apply for visits to her. The complaint was not

successful to the extent that no compensation, for example monetary

compensation, was granted to the applicant.

An examination by the Commission of this complaint as it has

been submitted does not therefore disclose any appearance of a

violation of Article 13 (Art. 13) 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.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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ATSMA v. NETHERLANDS

ATSMA v. NETHERLANDS