Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 10447/83

by S.D.

against the Netherlands

The European Commission of Human Rights sitting in private

on 14 July 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 24 June 1983

by S.D. against the Netherlands and registered

on 27 June 1983 under file N° 10447/83 ;

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

Rules of Procedure of the Commission ;

Having regard to the Commission's decision of 9 July 1983 to

request information from the Netherlands Government in accordance with

Rule 42 para. 2 (a) of its Rules of Procedure ;

Having regard to the information supplied by the Dutch

Government on 22 July 1983 ;

Having regard to the applicant's reply received on 25 August

1983 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Belgian citizen, was born in 1938. In the

proceedings before the Commission he is represented by Mr. A.R.W.

Schaink, a lawyer practising in Amsterdam.

On 28 March 1961, the Indictment Chamber of the Ghent Court of

Appeal, having established that the applicant had committed two

homicides, one murder and one attempt of murder and a series of

qualified thefts, directed that he be confined to a special

institution on the basis of the Act of Social Protection in respect of

Mental Defectives and Habitual Offenders.

The applicant's confinement on the basis of the above decision

has lasted until 7 July 1982, date of his escape, the Mental Health

Review Board, competent under the above Act to decide on the release

of persons confined under the Act, not having found that the applicant

fulfilled the conditions set by the law for release. The above

matter was subject to an application directed against Belgium

(No. 10448/83), declared admissible by the Commission on 12 July 1984,

and in respect of which the Commission adopted its Report under

Article 31 of the Convention on 14 May 1987.

The applicant was arrested at the request of the Belgium

authorities on 9 July 1982 in Oostburg, Netherlands and placed in

detention.

On 14 July 1982 the Belgian Government requested the

applicant's extradition on the basis of the Benelux Treaty on

Extradition and Mutual Assistance.

The Regional Court of Middelburg authorised the extradition on

8 October 1982. A plea of nullity introduced against this decision

was rejected by the Supreme Court of the Netherlands on 12 April 1983.

In forwarding its decision to the Minister of Justice in

accordance with Article 30 para. 2 of the Extradition Act, the

Regional Court of Middelburg drew the Minister's attention to the

particular harsh aspects of this extradition.

The President of the Supreme Court, by letter of 12 April

1983, also drew the attention of the Minister to letters which the

applicant, his counsel and third persons had addressed to him in which

they had invoked Article 10 para. 2 of the Extradition Act which

enabled the Minister of Justice to refuse an extradition if the

consequences of the extradition would be particularly harsh in view,

inter alia, of the bad health conditions of the person concerned.

The Minister of Justice then ordered a psychiatric examination

of the applicant. A psychiatrist drew up a report on 3 December

1982. He concluded that the applicant was not mentally ill and that

he did not constitute a danger for society. He considered that the

applicant's extradition to Belgium would mean "the end of his

existence". If the applicant were to remain in the Netherlands, he

would require expert assistance for his rehabilitation, adapted to his

long period of detention.

The Minister of Justice forwarded by letter of 25 April 1983

the applicant's pleas and the above psychiatric report to the Belgian

Minister of Justice with the request to inform the Netherlands

authorities as regards prospects for the applicant's future following

his extradition.

By letter of 26 May 1983, the Belgian Minister of Justice

answered that he could not provide this information, since the review

of the confinement ordered in respect of the applicant fell

exclusively within the competence of the Mental Health Review Board

and that the possibility of any change could only be examined if the

requested person were surrendered to the Belgian authorities.

In the light of the above answer, the Dutch Minister of

Justice decided to forward his letter as well as the psychiatric

report to the competent Mental Health Review Board, so that their

contents could be taken into account in future decisions as regards

the applicant's continued detention.

On this basis the Dutch Minister of Justice granted the

extradition of the applicant on 22 June 1983.

On 24 June 1983 the Regional Court of Middelburg, called upon

to decide every 30 days on the prolongation of the applicant's

detention with a view to his extradition, decided to suspend,

conditionally, the applicant's detention and to order his immediate

release. The Court considered in particular that the applicant's

intention to introduce an application with the European Commission of

Human Rights against Belgium and the Netherlands implied that the

Netherlands must abstain from taking measures which could jeopardise

this right of petition. Although the outcome of these proceedings

could not be anticipated, the applicant's continued detention in the

course of these proceedings, according to the Court, required

substantial justification. As regards the danger of absconding, the

Court held that even if this risk was real, the applicant could be

released on condition that he declared himself to the local

authorities.

The applicant was released on condition that he would not

jeopardise the execution of the order to detain him with a view to his

extradition, should the suspension be revoked, that he reported once a

week to the local police and that he did not indulge in criminal

activities.

As the above decision concerned only the applicant's detention

but did not affect the power of the State to extradite the applicant,

he brought on 20 June 1983 injunction proceedings against the State to

prohibit the extradition (a) pending the proceedings before the

Commission under Article 25 of the Convention and (b) pending efforts

by the Minister of Justice through diplomatic channels to make the

Belgian authorities withdraw the extradition request and to reach a

settlement.

On 14 July 1983, the President of the Regional Court in the

Hague rejected both requests.

The applicant appealed from this decision to the Court of

Appeal in the Hague. Since the appeal had no suspensive effect the

applicant went immediately into hiding.

As the applicant no longer complied with his duty to report

weekly to the local authorities, the public prosecutor of Middelburg

introduced a request with the Regional Court of Middelburg to quash the

decision to suspend the applicant's detention. This request was

acceded to on 18 August 1983.

On 20 October 1983, the Court of Appeal in the Hague confirmed

the decision of the Regional Court of the Hague of 14 July 1983.

The Court of Appeal distinguished between the formal aspect and

material aspect of an application to the Commission. On the first

point, the Court of Appeal observed, inter alia, that Belgium had also

accepted the right of individual petition and that the applicant's

extradition to Belgium would therefore not constitute an impediment to

the exercise of the right of individual petition. The suspension of

the extradition was not required by the Convention itself but could

follow from an application of Rule 36 of the Commission's Rules of

Procedure, which in the present case had however not been applied by

the Commission.

As regards the material aspect of the application to the

Commission, the Court of Appeal considered that the applicant had

failed to substantiate his claim that he would be subject to treatment

contrary to Article 3 of the Convention in Belgium if extradited, and

that, therefore, no joint responsibility of the Netherlands for this

alleged breach could be established. The fact that certain privileges

granted to him in Belgium would probably be withdrawn on the ground

that he had misused them, did not warrant the conclusion that he would

be subject to treatment contrary to Article 3 of the Convention.

The applicant, whose whereabouts were unknown since he went

into hiding in July 1983, was arrested in the Netherlands on 23 July

1986 on charges of robbery. On 23 September 1986 he was convicted and

sentenced by the Regional Court of Almelo to 9 years' imprisonment.

The appeal against the sentence is still pending.

COMPLAINTS

The applicant is of the opinion that the Dutch authorities

will act in breach of Article 3 of the Convention by extraditing him

to Belgium, where he will be subjected to treatment contrary to the

Convention. Alternatively, the applicant submits that the Netherlands

share with Belgium the responsability for the breaches committed in

Belgium.

He is of the opinion that the Dutch authorities should

have refused the request for extradition for humanitarian reasons.

Reference is made in this respect to the psychiatric report where the

psychiatrist points to the possible effects on the applicant of an

extradition to Belgium. It is not sufficient for the Dutch

authorities to rely on the absence of a humanitarian clause in the

Benelux Extradition Treaty, because it is implicit. It has moreover

become common practice for the two States concerned to come to an

agreement in cases of this kind. Reference is made in this respect to

the facts at issue in Applications Nos. 9058/80 and No. 9144/80

(Leenart v. the Netherlands and Leenart v. Belgium).

It is therefore not acceptable that the Dutch authorities in

the present case chose not to seek a negotiated solution. This, in

his view, emphasises the inhuman character of the treatment of the

applicant by the Dutch authorities.

Alternatively, the applicant is of the opinion that the Dutch

authorities act in breach of Article 3 of the Convention, by not

suspending the extradition to Belgium until the proceedings regarding

Application No. 10448/83 (Dhoest v. Belgium) are terminated. The

acceptance of the right of individual petition implies in his view

that the authorities have a duty not to prevent an effective exercise

of that right, which means in the present case that the Dutch

authorities must suspend the extradition or, at least, not execute the

decision in an irrevocable manner.

PROCEEDINGS BEFORE THE COMMISSION

The application, accompanied by a request for application of

Rules 36 and 41 of the Commission's Rules of Procedure, was introduced

on 24 June 1983 and registered on 27 June 1983.

On 27 June 1983 the President of the Commission decided that

the application was not of such a nature as to warrant the application

of Rule 36. The applicant's representative was informed accordingly

on 28 June 1983. He was also informed that the Secretary of the

Commission had not thought fit to inform the High Contracting Party

concerned of the introduction of the application under Rule 41.

On 9 July 1983 the Commission proceeded to a first examination

of the application and decided in accordance with Rule 42 para. 2 (a)

of its Rules of Procedure to invite the Government of the Netherlands

to enlighten the Commission as regards their intentions in respect of

the applicant (1).

On 22 July 1983, the Dutch Government informed the Commission

that, after the decision of the President of the Regional Court of the

Hague, there was no legal obstacle to prevent the extradition. As the

applicant's whereabouts were unknown, a search order had been issued

by the public prosecutor's department. As soon as the applicant would

be localised, it was the intention of the Dutch authorities to comply

with their treaty obligations derived from the Benelux Extradition

Treaty.

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(1) At the same time it decided to invite the Government of

Belgium to submit their observations in reply on the

admissibility and merits of Application No. 10448/83.

Applicant's counsel replied on 25 August 1983. He argued that

the applicant had challenged the decision of the President of the

Regional Court of the Hague and that the Dutch authorities had the

duty to await the outcome of these proceedings. Such a course of

action would moreover be consistent with the attitude adopted by the

authorities in the injunction proceedings according to which the

Commission lacked competence to examine the complaint on the grounds

that national remedies had not yet been exhausted.

The obligation to extradite which the Government prayed in aid

was moreover not a very strict one. This followed from the facts in

the case of Leenart v. the Netherlands (No. 9058/80, cf. above), where

11 months had elapsed between the decision to extradite and the stay

in the execution of that decision ordered pending the proceedings

before the Convention organs.

The Commission reexamined the present application on 12 July

1984 and decided to adjourn its further examination pending the

outcome of the proceedings concerning Application No. 10448/83.

The Commission's proceedings concerning Application No.

10448/83 were terminated with the adoption of a report drawn up under

Article 31 of the Convention on 14 May 1987.

THE LAW

The applicant has complained of the decision of the Dutch

Government to extradite him to Belgium. He considers that the Dutch

authorities, in granting the request for extradition, act in breach of

Article 3 (Art. 3) of the Convention on the ground that they engender

a breach by Belgium of that provision of the Convention, in view of

the alleged inhuman character of the detention which is likely to

continue, or, alternatively, that they are jointly, with Belgium,

responsible for this alleged breach.

The Commission first recalls that extradition is not, as such,

among the matters covered by the Convention (cf. e.g. No. 7256/75,

Dec. 10.12.1976, D.R. 8 p. 161).

However, the Commission has recognised in its previous

case-law that a person's extradition may, exceptionally, give rise to

issues under Article 3 (Art. 3) of the Convention where extradition is

contemplated to a country in which "due to the very nature of the

regime of that country or to a particular situation in that country,

basic human rights, such as are guaranteed by the Convention, might be

either grossly violated or entirely suppressed" (No. 1802/62,

Dec. 26.3.1963, Yearbook 6 p. 462 at p. 480). The Commission is of the

opinion that these exceptional circumstances do not arise in the

present case.

In this respect, the Commission attaches importance to the

fact that the case concerns extradition to a High Contracting Party to

the European Convention on Human Rights, which has recognised the

right of individual petition as set forth in Article 25 (Art. 25) of the

Convention. The Commission further notes that the applicant has

effectively availed himself of this right, by introducing an

application against Belgium.

Under these circumstances, the Commission finds that Article 3

(Art. 3) of the Convention does not prevent the Netherlands from extraditing

the applicant to Belgium.

Consequently, the application must be rejected as being 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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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S. D. v. THE NETHERLANDS

S. D. v. THE NETHERLANDS

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