FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37328/97 by A.D.D.B. against the Netherlands

The European Court of Human Rights (First Section) , sitting on 5 September 2000 as a Chamber composed of

Mr L. Ferrari Bravo, President , Mrs W. Thomassen,

Mr Gaukur Jörundsson Mr C. Bîrsan, Mr J. Casadevall, Mr B. Zupančič, Mr T. Panţîru, judges , and Mr M. O'Boyle, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 18 March 1997 and registered on 8 August 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 31 August 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1945 and currently living in Plainview (United States of America). The applicant was initially represented by Mr D. Gebhardt of the Law Firm Baumann in Munich (Germany), who himself at some unspecified point in time had been detained in the Netherlands Antilles. On 10 January 1999, the applicant withdrew his authority for representation by Mr Gebhardt.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

a. The criminal proceedings against the applicant

On 8 May 1996 the applicant was arrested in New York (USA) and placed in detention on the basis of a extradition request from the authorities of the Netherlands Antilles where he had been charged with embezzlement and forgery. He was extradited to the Netherlands Antilles on 30 May 1996 and detained in the Pointe Blanche penitentiary on the isle of St. Maarten.

In a document dated 18 June 1996 and bearing the applicant's signature, it is stated that the applicant appoints Mr D. Gebhardt as “true and lawful Attorney in my name, place and stead and for my use and benefit: To exercise any or all of the following powers as to my criminal case in the Netherlands Antilles, any interest therein and thereon; To appoint or terminate lawyers, receive and take possession of documents, to ask demand, sue for, recover, collect and receive all necessary documents in my criminal case, and appeal any decision, file complaints and whatsoever. Giving and granting to my said Attorney full powers and authority ... until this power is revoked.”.

By judgment of 11 December 1996, following adversarial proceedings in the course of which the applicant was assisted by Mr R. - a local legal aid lawyer to whom the case had been assigned -, the First Instance Court ( Gerecht in Eerste Aanleg ) of the Netherlands Antilles convicted the applicant of embezzlement and fraud and sentenced him to three years and nine months' imprisonment. Both the applicant and the public prosecutor filed an appeal with the Joint Court of Appeal ( Gemeenschappelijk Hof van Justitie ) of the Netherlands Antilles and Aruba.

By judgment of 7 October 1997, following adversarial proceedings in the course of which the applicant was represented by Mr J. - a local lawyer -, the Joint Court of Appeal quashed the judgment of 11 December 1996, convicted the applicant of embezzlement and forgery and sentenced him to three years' imprisonment. Although on 13 October 1997 the applicant filed an appeal in cassation with the Netherlands Supreme Court ( Hoge Raad ), he subsequently withdrew this appeal. Consequently, the Joint Court of Appeal's judgment of 7 October 1997 became full and final. On 27 February 1998, after having served his sentence, the applicant was released from prison.

b. The applicant's conditions of detention

On 21 September 1996 the applicant sent a letter concerning the conditions of detention in the Point Blanche penitentiary to one of the judges of the First Instance Court of St. Maarten, in the latter's capacity as a member of the prisons and Remand Centres Supervisory Board ( Commissie van Toezicht Gevangeniswezen en Huizen van Bewaring ).

In this letter, in which the applicant referred to a conversation he had had with this judge on 20 September 1996, the applicant explained, among other things, that inmates are locked in cells for 21 hours per day with nothing to do, that after ten days' detention in Point Blanche an inmate is permitted on the following Saturday a maximum of four sheets of paper and four envelopes, that there are no telephone facilities apart from previously announced incoming telephone calls not exceeding fifteen minutes, that inmates have to provide for their own clothing and bed linen which they have to wash themselves under showers or in primitive sinks during recreation, that toilets do not flush and that shower taps and pipes are leaking. In his letter the applicant suggested practical solutions for the matters raised and explained why such solutions would be beneficial for all concerned.

On 13 January 1998, the applicant informed the European Commission of Human Rights (hereinafter “the Commission”) that he had been transferred to the Koraal Specht prison on the isle of Curaçao on medical grounds and that he had been admitted to the infirmary there. The applicant stated that, apart from the bathroom, this infirmary had no lights after sunset and that the inmates remained locked in for 23 hours.

In his letter of 5 February 1998, the applicant informed the Commission that, on 31 January 1998, he had been transferred from the infirmary to the adjacent old infirmary building, where he was detained in a cell of about 5 metres long and 3 metres wide. He shared this cell with three other persons. Two slept on temporary beds and the two others on the floor. He was provided with a foam mattress. No sheets or blankets were provided and he was not allowed to retrieve his own sheets from his personal belongings. He stated that he used a towel as a cover.

c. The applicant's correspondence with the European Commission of Human Rights and his representative in the proceedings before the Commission

By letter of 7 April 1997, Mr D. Gebhardt, who initially represented the applicant in the proceedings before the Commission and subsequently the Court, complained to the Director of the Point Blanche Penitentiary that his letters to, inter alia , the applicant had been opened and withheld by the prison authorities although these letters were marked "from lawyer to client". Mr Gebhardt drew the Director's attention to the Court's judgment of 25 February 1992 in the case of Campbell v. the United Kingdom (Series A no. 233). He requested the Director to ensure that his earlier letters, which had been withheld in the past, be delivered to the addressees and that his clients be provided with official letter paper for their correspondence with him.

By letter of 9 April 1997, enclosing a copy of his letter of 7 April 1997 to the Director of the Point Blanche penitentiary, Mr Gebhardt filed a complaint against the Director of the Point Blanche penitentiary with the Governor ( Gouverneur ) of the Netherlands Antilles. Apart from other general problems concerning this Director's functioning, Mr Gebhardt complained that the Point Blanche prison authorities had restricted the applicant's facilities for acquainting himself with the contents of his case-file, a copy of which his defence lawyer had provided him with. On the basis of these restrictions, the lawyer had taken the copy of the case-file away, as the lawyer-client privilege was not guaranteed. Mr Gebhardt requested the Governor to ensure that the principle of confidentiality between lawyers and their clients be respected by issuing such instructions as necessary to the Director of the Point Blanche penitentiary.

On 22 July 1997, the Cabinet of the Governor informed Mr Gebhardt that the Governor had received a report of the investigation in the penitentiary of St. Maarten from the Minister of Justice and that the latter had been requested on 13 June 1997 to answer Mr Gebhardt's letter. On 25 September 1997, the Cabinet of the Governor informed Mr Gebhardt that the Minister of Justice had been reminded to answer Mr Gebhardt's letter of 9 April 1997.

On 1 September 1997, Mr Gebhardt informed the Governor of the Netherlands Antilles that he had not yet received any response from the Minister of Justice of the Netherlands Antilles. Mr Gebhardt further stated the applicant had appointed him as representative in proceedings the applicant wished to institute before the Commission and in which context the applicant needed to sign an authority form sent to Mr Gebhardt by the Commission's Secretariat. With reference to his letter of 9 April 1997, Mr Gebhardt stated that, contrary to Article 8 of the Convention, the prison authorities were blocking his access to the applicant. Mr Gebhardt therefore requested the Governor to ensure that the applicant would receive and return this authority form.

On 27 September 1997, the public prosecutor of St. Maarten, to whom Mr Gebhardt's letter of 1 September 1997 had been forwarded, sent the authority form - which had been signed by the applicant - to Mr Gebhardt.

As in the meantime Mr Gebhardt had also informed the Commission's Secretariat that he had difficulties in obtaining access to the applicant, the Secretariat of the Commission sent a letter on 1 October 1997 to the applicant directly, requesting him to complete, sign and return an enclosed authority form for his representation by Mr Gebhardt in the proceedings before the Commission.

On 28 October 1997, the Commission's Secretariat received the completed and signed authority form from the applicant directly. The form was stamped by the St. Maarten prison authorities and further carried an illegible mark written by hand with a red ink ballpoint pen, which appears to be a kind of visa. In the accompanying letter, the applicant informed the Commission that the prison authorities had opened the Commission's letter of 1 October 1997.

By letter of 14 November 1997, the Commission's Secretariat requested the applicant to provide further details as to the opening of the Commission's letter of 1 October 1997 and the control exercised by the prison authorities of correspondence between the applicant and the Commission.

On 12 December 1997, the Commission received the applicant's reply, stating that he had also received the Commission's letter of 14 November 1997 after it had been opened by the prison authorities. When the letter was given to him, he was told that it had been opened by mistake and that, after it had been read, it had not been stamped. The applicant submitted the original of the Commission's letter of 1 October 1997 - which carries the same stamp and red ballpoint mark as the authority form - and the original letter of 14 November 1997 which carries no stamp or other mark.

In his letter, the applicant further explained that the prison stamp on his letters to the Commission had been placed on blank paper prior to his writing on it. He had addressed this letter of the President of the European Commission and had sealed the envelope himself, as only letters addressed to the President of the European Commission were exempted from control by the prison authorities and, consequently, could be sealed by inmates themselves. He further stated he was not allowed to personally seal his mail to his lawyer.

On 20 December 1997, Mr Gebhardt addressed a complaint to the Office of the Public Prosecutor of St. Maarten about encountered problems from the side of the authorities of the Point Blanche penitentiary in respect of his correspondence with different detainees in that prison. The applicant was not included in the list of names of detainees cited. Referring to Article 8 of the Convention Mr Gebhardt requested the public prosecutor to ensure that any correspondence between detainees and the Commission and between detainees and himself be treated as confidential by the authorities of the Point Blanch prison.

In his letter of 5 February 1998, the applicant informed the Commission that on 20 January 1998 he had received a letter from his lawyer, which had been opened.

d. Other actions undertaken by Mr Gebhardt on behalf of the applicant

On 10 June 1997, Mr Gebhardt addressed a letter concerning the applicant's case to the Queen of the Netherlands. On 24 July 1997, Mr Gebhardt was informed by the Minister for Netherlands-Antillean and Aruban Affairs that the letter of 10 June 1997 had been forwarded to this Ministry. Since the applicant's case was still sub iudice , the Minister stated that “the Antillean judicial authorities still have to judge about your defense-statement, in which your refer to the treatment of your client. I have full confidence in the judgement of these authorities.”. Mr Gebhardt was further informed that a copy of his letter had been sent to the Governor of the Netherlands Antilles, requesting the latter to bring the matter to the attention of the Minister of Justice of the Netherlands Antilles.

On 26 August 1997, Mr Gebhardt addressed a petition to the Queen of the Netherlands requesting the applicant's release arguing that the applicant was being unlawfully detained in inhuman conditions.

On 5 December 1997, Mr Gebhardt addressed a further letter to the Queen of the Netherlands in which he gave an account of the applicant's state of health while in detention and, among other things, complained of the lack of response to these problems from the side of the authorities. He requested the Queen to intervene in order to obtain a medical parole for the applicant.

On 23 December 1997, with reference to the letter of 24 July 1997, Mr Gebhardt informed the Minister for Netherlands-Antillean and Aruban Affairs that neither the Governor of the Netherlands Antilles nor the Minister of Justice of the Netherlands Antilles had sent him a response.

B. Relevant domestic law and practice

Under Article 50ter of the former Code of Criminal Procedure ( Wetboek van Strafvordering ) of the Netherlands Antilles [1] , in force at the relevant time, every practising lawyer registered with the Joint Court of Appeal of the Netherlands Antilles and Aruba is competent to represent accused in criminal proceedings in the Netherlands Antilles. When absolutely necessary (“ volstrekte noodzakelijkheid ”) other suitable persons, such as foreign lawyers, may be allowed to act as counsel.

Pursuant to Article 67 of the Order and Disciplinary Regulations for Prisons and Remand Centres ( Reglement van Orde en Tucht voor de Strafgevangenis en de Huizen van Bewaring - Official Bulletin of the Netherlands Antilles (PB) 1958 no. 19), which was in force at the relevant time, detainees are entitled to write letters on Sundays and to receive letters at all times. The prison governor ensures that detainees' letters, which may only be written with writing materials provided free of charge by the prison authorities, are posted without delay. The prison authorities also pay the costs of postage. Apart from detainees' letters addressed to the Governor of the Netherlands Antilles, the Minister of Justice, the prisons and Remand Centres Supervisory Board, the First Instance Court, the Joint Court of Appeal, the Public Prosecutor, the Procurator-General and the Lieutenant Governor ( gezaghebber ), all correspondence of detainees is subject to control by the prison authorities.

In the meantime, the Order and Disciplinary Regulations for Prisons and Remand Centres has been replaced by a new National Ordinance on Prisons in the Netherlands Antilles ( Landsverordening Beginselen Gevangeniswezen ), which entered into force on 13 August 1999 [2] . New Prison Regulations ( Gevangenismaatregel ) and Internal Prison Rules ( Huishoudelijke Reglementen ) are currently being prepared [3] .

The National Decree ( Landsbesluit ) of 29 December 1962 (PB 1962 no. 160), in force at the relevant time, set up the Prisons and Remand Centres Supervisory Board. This Board is charged with the supervision of all matters relating to penal establishments, with particular reference to the treatment of detainees and compliance with regulations. However, under the system established under this National Decree, detainees have no formal right of complaint.

This situation has changed with the entry into force of the new National Ordinance on Prisons in the Netherlands Antilles, in which detainees have been given a limited right of complaint and in which the mandate of the Prisons and Remand Centres Supervisory Board includes supervising the execution of custodial sentences, examining detainees' complaints and taking notice of other grievances presented by detained persons. Under Article 44 § 6 of the new National Ordinance compensation can be granted where the Supervisory Board finds a complaint to be partially or wholly founded.

Under the system in force at the material time, problems relating to conditions of detention could further be reported to the Office of the Procurator-General. In case of unacceptable behaviour taking place in a detention facility, the Procurator-General could order an inquiry to be carried out by the National Criminal Investigation Department ( Landsrecherche ).

The first paragraph of Article 50sexies of the former Code of Criminal Procedure of the Netherlands Antilles, in so far as relevant, provided as follows:

“Counsel has free access to a lawfully detained suspect, can speak with him in private and exchange letters with him without others reading them, one and another under the required supervision, with respect for the internal rules and without obstructing the investigation.”

“De raadsman heeft vrije toegang tot de rechtens van zijn vrijheid beroofde verdachte, kan hem alleen spreken en met hem brieven wisselen zonder dat van de inhoud door anderen wordt kennisgenomen, een en ander onder het vereiste toezicht, met inachtneming van huishoudelijke reglementen en zonder dat het onderzoek daardoor mag worden opgehouden.”

Under the second paragraph of Article 250sexies of the former Code of Criminal Procedure of the Netherlands Antilles, the public prosecutor or, if involved, the investigating judge ( rechter-commissaris ) may, during the preliminary investigation ( voorbereidend onderzoek ) and in the interest of this investigation, order certain restrictions in contacts between a suspect and his lawyer, namely to deny a lawyer access to the suspect, not to allow a lawyer and the suspect to speak with each other in private or to withhold correspondence and/or other documents which a lawyer and the suspect wish to exchange. Such restrictions can only be ordered for a maximum period of six days and, pursuant to Article 250sexies § 3, are subject to a subsequent control by the Joint Court of Justice.

The wording of Article 70 of the Code of Criminal Procedure of the Netherlands Antilles, which entered into force on 1 October 1997, is almost identical to Article 250sexies of the former Code of Criminal Procedure.

C. Relevant international material

In the Report of 18 January 1997 of the European Committee for the Prevention of Torture and Inhuman Treatment (“CPT”) on its visit to the Netherlands Antilles from 26-30 June 1994 [4] , the CPT found that the conditions of detention in the Koraal Specht prison amounted to inhuman and degrading treatment. This finding led the CPT's delegation to send a letter on 10 August 1994 to the Minister of Justice setting out a certain number of urgent measures necessary to improve conditions of detention in the Koraal Specht prison.

According to this Report, the Koraal Specht prison regulations make no provision for the use of telephones by prisoners and that, in practice, it appeared that prisoners who are resident in the island of Curaçao could make calls once a week and foreign nationals once a month. Calls were apparently limited to about ten minutes and were monitored by prison staff. As to the facilities for visiting prisoners, the CPT recommended a complete review of the visiting facilities with a view to establishing more open arrangements for ordinary visits.

The CPT Report of 10 December 1998 on its second visit to the Netherlands Antilles from 7-11 December 1997 [5] concluded that the material conditions of detention in the Koraal Specht prison remained unsatisfactory and the CPT called upon the Netherlands Antilles authorities to redouble their efforts in inter alia reducing the overcrowding and improving the overall state of repair of the detention areas (including the sanitary facilities). The CPT further recommended that immediate steps be taken to ensure that every prisoner would be supplied with a mattress at night. Certain positive developments concerning prisoner's contacts with the outside world were noted by the CPT delegation, particularly as regards improved access to a telephone and the possibility offered to some prisoners of having supervised open visits. Nevertheless many complaints were heard from prisoners about lengthy delays before they were granted access to a telephone and about such access often being refused arbitrarily; complaints were also heard about the distribution and/or forwarding of correspondence being unduly delayed.

The CPT Report of 25 May 2000 on its third visit to the Netherlands Antilles from 25 to 29 January 1999 [6] mentions an incident having occurred on 14 July 1998 at the Koraal Specht prison in Curaçao. All information gathered by the CPT delegation suggested that police officers had beaten prisoners already brought under control; the prisoners were naked and handcuffed behind their backs. According to the Report, the matter had not immediately been reported by prison staff present to their own hierarchical superiors (the director of the prison) or to the National Criminal Investigation Department and, more than half a year later, investigations into the conduct of the police officers involved and the prison officers having failed to discharge their duty to protect the prisoners under their care were still at an embryonic stage. It further appeared that those very police officers continued to be deployed in the prison.

The CPT further noted that, by a Decree of 2 November 1998, an independent Commission was established (the Kleinmoedig Commission) to guarantee the physical integrity of persons deprived of their liberty and to investigate any abuse that might occur.

As regards the conditions of detention in the Koraal Specht prison, the CPT noted the efforts made to improve the material environment, but also observed that the prison continued to suffer some degree of overcrowding, that problems in providing prisoners with adequate food at regular times and ready access to drinking water continued to persist and that the situation as to the health care services for detainees had worsened in comparison with its second visit in December 1997. The CPT delegation was further told that there was a shortage of mattresses, despite the fact that the budgetary means were available.

In its response to the CPT report [7] on its third visit, the Netherlands Antilles authorities confirmed that, as to the alleged irregularities said to have taken place on 14 July 1998, a preliminary judicial investigation had commenced in the course of which a number of witnesses were being heard by the investigating judge. The CPT was further informed that the water problem (inadequate pressure) had been resolved, that the arrangements for supplying meals were satisfactory and that there was no question now of a shortage of mattresses. The response further states that the medical service had been restructured on 1 April 1999 in according with the CPT's recommendations.

COMPLAINTS

The applicant complains under Article 8 of the Convention that, during his detention in the Netherlands Antilles, the prison authorities interfered in his correspondence with his lawyers, the European Commission of Human Rights, his representative in the proceedings before the European Commission of Human Rights, the prosecution authorities of the Netherlands Antilles, the British Consul and private persons in that his correspondence was opened and read by the prison authorities and that he was restricted in establishing contacts with persons outside his place of detention as a consequence of the extremely limited facilities made available to him to write letters or to use a telephone.

The applicant further complains under Article 13 of the Convention in conjunction with Articles 3 and 8 of the Convention that he has no effective remedy in respect of the conditions in which he was detained in the Netherlands Antilles and in respect of the control by the penitentiary authorities in the Netherlands Antilles of his correspondence.

THE LAW

The applicant complains under Article 8 of the Convention that, during his detention in the Netherlands Antilles, the prison authorities interfered in his correspondence with, inter alia , the European Commission of Human Rights and his representative in the proceedings before the European Commission of Human Rights in that his correspondence was opened and read by the prison authorities and that he was restricted in establishing contacts with persons outside his place of detention as a consequence of the extremely limited facilities made available to him to write letters or to use a telephone.

He further complains under Article 13 of the Convention in conjunction with Articles 3 and 8 of the Convention that he has no effective remedy in respect of the conditions in which he was detained in the Netherlands Antilles and in respect of the control by the penitentiary authorities in the Netherlands Antilles of his correspondence.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 8 of the Convention provides as follows:

“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.”

Article 13 of the Convention reads:

“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.”

Exhaustion of domestic remedies

The Government submit that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. The applicant could have instituted injunction proceedings before the domestic courts against the Netherlands Antilles, complaining of tort by the authorities of the Netherlands Antilles. According to the Government, this option is regularly and successfully used by prisoners complaining about treatment received in prisons. The Government further refer to the possibility, for complaints under Articles 3 and 8 of the Convention, for detainees to file a petition to the Procurator-General and further, for complaints under Article 3, to the possibility to address a petition to the Minister of Justice.

The applicant submits that many persons did attempt to institute proceedings before the courts but in the main these did not materialise for financial reasons. Either the lawyers were not prepared to work for legal aid fees or the inmate had no financial means to pay the fees and costs.

Recalling the general principles in relation to the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention (cf. Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996, pp. 1210-1211, §§ 65-68), the Court would not exclude, assuming that it is comparable to the interlocutory proceedings described in the case of Keus v. the Netherlands (judgment of 25 October 1990, Series A no. 185-C, p. 64, § 16), that the remedy suggested by the Government - in the law and practice of the Netherlands Antilles - constitutes an important remedy against various unlawful acts.

However, when considering the remedy suggested in the light of the findings of the CPT as set out in its three consecutive reports on visits made to the Netherlands Antilles and, as regards the applicant's correspondence, also in the light of the rules in force at the relevant time, the Court considers it doubtful that injunction proceedings would have been capable of affording redress in respect of the breaches alleged by the applicant. Furthermore, in the Government's brief remarks on such proceedings, it has in no way been demonstrated that this remedy would have constituted an effective remedy in the present case.

As regards the possibilities of filing a petition with the Procurator-General or the Minister of Justice, the Court considers that it appears that the power to order an investigation appears to be of a discretionary nature. Although the Court would not exclude that such petitions could result in an effective investigation, it notes that the applicant has filed on 21 September 1996 a written complaint with a judge of the First Instance Court of St. Maarten in this person's capacity as a member of the Prisons and Remand Centres Supervisory Board and that, on the applicant's behalf, another complaint has been lodged on 9 April 1997 with the Governor of the Netherlands Antilles which complaint was transmitted to the Minister of Justice for a reply. The Court further notes that, on behalf of other detainees in St. Maarten, on 20 December 1997 a petition complaining of disrespect of rights guaranteed by Article 8 of the Convention by the Point Blanch prison authorities was sent to the St. Maarten public prosecutor. It does not appear from the parties' submissions that the above complaints have either been transmitted to the appropriate authorities as might be expected from public officials or, in case they were transmitted, that they have in fact resulted in any steps taken by the competent authorities in order to investigate the matters complained of.

The Court is therefore of the opinion that the application should not be rejected on the ground of failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

The substance of the applicant's complaints

The Government submit that the applicant's complaint under Article 8 of the Convention of interference with his correspondence with others than the European Commission of Human Rights and his representative in the proceedings before the Commission has remained unsubstantiated. As regards the interference with the applicant's correspondence with the Commission and his representative in the proceedings before the Commission, the Government defer to the Court's findings.

The Government do, however, submit that, although the rules in force at the material time did not specifically include prisoners' lawyers or the Strasbourg institutions on the list of privileged contacts - correspondence from whom should not be opened -, in practice the confidential character of such correspondence was respected and under the new National Ordinance on prisons the category of privileged persons and organs includes “bodies that are competent under the law of the Netherlands Antilles to take cognisance of complaints or to hear cases commencing with a complaint”.

As to the applicant's correspondence with Mr Gebhardt, the Government submit that the Point Blanche prison staff was not aware that Mr Gebhardt was acting as the applicant's counsel as the applicant had been represented by two other lawyers in the criminal proceedings against him. Unlike Mr Gebhardt, these lawyers were officially registered as such in the Netherlands Antilles. Moreover, Mr Gebhardt was known to the prison staff as a former inmate of the Point Blanche prison whereas the rules in force at the relevant time did prohibit sending letters to former fellow prisoners. Relying on the Contracting States' margin of appreciation under Article 8 of the Convention, the Government argue that requirements of safety and security for prison staff and others may reasonably have led the authorities to decide that correspondence between the applicant and a former prisoner should be subject to control.

According to the Government the rules in force at the material time in relation to contacts of detainees with persons outside the penitentiary facility appear to be compatible with the Convention. The Government are further of the opinion that the new National Ordinance on prisons, which contains regulations on the facilities for detainees for having contacts with the outside world by letter, telephone and visits as well as the grounds on which a detainee's right to respect for his correspondence may be restricted, fully meets the requirements of Article 8 of the Convention.

In respect of the applicant's complaint under Article 13 of the Convention, the Government submit that prisoners in the Netherlands Antilles can file an application with the Supervisory Board, file a petition with the Minister of Justice, file a petition with the Procurator-General or, with representation by a lawyer, institute injunction proceedings against the Netherlands Antilles.

The Government concede that, at the relevant time, the lodging of a complaint with the Supervisory Board may not be considered an effective remedy as this body has no powers to enforce its decisions. The Government also admit that - given the contents of the rules at the material time - a petition to the Minister of Justice in respect of the interference with the applicant's correspondence with the Commission and his representative in the proceedings before the Commission cannot be regarded as an effective remedy. However, this does not apply to complaints of detainees that they have been subjected to treatment contrary to Article 3 of the Convention by prison officials, as this is not tolerated either by the former or the new regulations.

The Government further argue that the frequently used options of a petition to the Procurator-General - who is inter alia responsible for the execution of judgment and competent to take measures in that respect - and injunction proceedings before the domestic courts also provide effective remedies for complaints of treatment received in prisons. As to the latter option the Government submit that, when requested in such proceedings, the judiciary have the power to take direct measures concerning the execution of judgments and regularly do so. Moreover, the Convention can be directly invoked before all courts in the Kingdom of the Netherlands, as a result of which the courts may overrule existing regulations where these would be found in violation of the Convention.

The applicant submits in respect of his complaint under Article 8 of the Convention that, apart from his correspondence in relation to his application to the Commission, the prison authorities also interfered with consular mail. In addition, Mr Gebhardt had notified the authorities in Curaçao and St. Maarten of his appointment. The applicant further submits that any mail not sent out by the prison authorities was never returned to him. The applicant also refers to the complaints filed by his wife, the British Consul and himself of the treatment and abruptness of their meetings despite the fact that overseas visitors were supposed to be allowed longer visiting times as they occurred less frequently.

In respect of his complaint under Article 13 of the Convention, the applicant states that the police and lawyers had warned him on many occasions that the more fuss he made, the “worse it will go for you”. Consequently, he felt intimidated. This was confirmed when he was informed by the office of the Procurator-General in Curaçao that the Procurator-General was sick of his complaints, whereas these complaints originated in fact from the applicant's family and others.

The Court considers that, in the light of the parties' submissions, the application raises issues of fact and law under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court, therefore, concludes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O'Boyle Luigi Ferrari Bravo Registrar President

[1] On 1 October 1997 a new Code of Criminal Procedure of the Netherlands Antilles has entered into force.

[2] Article 1 of the National Decree ( Landsbesluit ) of 6 August 1999

[3] Response dated 17 June 1998 of the Government of the Netherlands Antilles to the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment on its visit to the Netherlands Antilles from 7-11 December 1997; CPT/Inf (98) 17, 10 December 1998, p. 43.

[4] CPT/Inf (96)1

[5] CPT/Inf (98)17

[6] CPT/Inf (2000)9

[7] CPT/Inf (2000)10