FIRST SECTION

PARTIAL 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 31 August 1999 as a Chamber composed of

Mrs E. Palm, President ,

Mr J. Casadevall ,

Mr L. Ferrari Bravo,

Mr C. Bîrsan ,

Mr B. Zupančič ,

Mrs W. Thomassen ,

Mr T. Pantiru , Judges ,

with Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 March 1997 by A.D.D.B. against the Netherlands and registered on 8 August 1997 under file no. 37328/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 14 October 1998 and the observations in reply submitted by the applicant on 24 January 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national and was born in 1945. At the time of the introduction of the application, he was detained in the Point Blanche penitentiary of St. Maarten (Netherlands Antilles). The applicant was initially represented by Mr D. Gebhardt of the Law Firm Baumann in Munich (Germany). On 10 January 1999, the applicant withdrew his authority for representation by Mr Gebhardt .

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

I. Particular circumstances of the present case

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. The applicant was suspected of having kept for himself insurance premiums in a total amount of about US$ 165,000, which premiums were received by him, in his capacity as an insurance broker, from his clients. As a result of the applicant’s failure to transmit these premiums to the insurance companies where the insurance policies concluded with him had supposedly been placed, a large number of persons who had concluded an insurance with the applicant turned out to be uninsured when they claimed payment for damages caused by the tropical storms "Luis" and "Marilyn".

The applicant was extradited to the Netherlands Antilles on 30 May 1996 and detained in the Pointe Blanche penitentiary on the isle of St. Maarten . When on the same day the applicant was brought before the investigating judge ( rechter-commissaris ), the applicant was informed that he was entitled to legal assistance. As the applicant wished to avail himself of this possibility a legal aid lawyer, Mr R. Richardson, was appointed as the applicant’s defence counsel at some unspecified date in June 1996.

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.”.

On 20 November 1996, a hearing was held before the First Instance Court of the Netherlands Antilles ( Gerecht in Eerste Aanleg van de Nederlandse Antillen ) sitting in St. Maarten in the course of which the applicant, who was assisted by his legal aid lawyer Mr Richardson and an interpreter, gave evidence. After having heard the parties’ final pleadings, the First Instance Court closed the investigation and set a date for judgment.

By judgment of 11 December 1996, the First Instance Court 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 Justice ( Gemeenschappelijk Hof van Justitie ) of the Netherlands Antilles and Aruba.

On 7 January 1997, Mr Gebhardt addressed a document with the title “lawsuit” to the Joint Court of Justice in connection with the criminal proceedings against the applicant. In this document, Mr Gebhardt raised complaints under Article 3, Article 5 §§ 1 (c) and 2, Article 6 §§ 1, 2 and 3 (d) and (e), Article 8, Article 10 and Article 13 of the Convention.

On 12 February 1997, the President of the Joint Court of Justice informed Mr Gebhardt that the latter’s submissions did not comply with the relevant procedural requirements and that, therefore, there was not much he could do with these submissions.

On 6 June 1997, Mr Gebhardt addressed further submissions to the Joint Court of Justice.

On 25 September 1997, a hearing was held before the Joint Court of Justice in the course of which the court heard the applicant, who was assisted by an interpreter and a lawyer, Mr A. Jansze , who had been appointed by the applicant himself. Upon the applicant’s request, the court also took evidence from two witnesses. After this taking of evidence and after having heard the parties’ final pleadings, the court closed its investigation and fixed a date for the pronouncement of its judgment.

By judgment of 7 October 1997, pronounced in public and in the presence of the applicant, the Joint Court of Justice quashed the judgment of 11 December 1996, convicted the applicant of embezzlement and forgery and sentenced him to three years’ imprisonment. On 13 October 1997, in accordance with the Cassation Regulation for the Netherlands Antilles ( Cassatieregeling voor de Nederlandse Antillen ), the applicant filed an appeal in cassation with the Netherlands Supreme Court ( Hoge Raad ).

On 8 January 1998, upon the advice of his lawyer, Mr Jansze , who had told the applicant that if he would not abandon his appeal in cassation he would not only have to serve his sentence in full but also would remain in pre-trial detention until the Supreme Court would have determined his appeal, the applicant decided to withdraw his appeal in cassation to the Supreme Court in order to qualify for early release.

On 9 January 1998, in the course of proceedings before the Joint Court of Justice concerning the applicant’s release from pre-trial detention ( gevangenhouding ), the applicant’s lawyer stated to this court that the applicant had withdrawn his appeal in cassation to the Supreme Court. Consequently, the Joint Court of Justice’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 state of health pending his detention

Pending his stay in the Point Blanche penitentiary, the applicant, who complained about health problems, was examined by a doctor on 1 and 8 June, 6, 16 and 19 July, 21 August, 4 September, and on 12, 29 and 31 October 1996.

On 13 November 1996, in the course of a medical examination of the applicant, X-ray photographs and an electrocardiogram were taken. The applicant was further examined by a doctor on 4 February, 12 March, 9 and 16 April 1997.

By letter of 10 June 1997, the applicant’s lawyer, Mr Jansze , requested the doctor working in the Point Blanche penitentiary, Dr. Cova of the St. Maarten Medical Centre, to be provided with a detailed report on the applicant’s state of health or any possible deterioration thereof. On 24 June and 11 July 1997, the applicant was examined by a doctor.

By letter of 11 August 1997, Mr Jansze informed the public prosecutor at the First Instance Court that the applicant’s health had deteriorated rapidly in that he had lost more than 20 kg in the course of his detention, that he suffered constantly from light ‑ headedness and fainted regularly. The lawyer further stated that Dr. Cova had informed him that the applicant would be medically examined, but that, according to Dr. Cova , probably nothing would be found wrong with the applicant. The lawyer stated in his letter that he had the impression that the applicant’s state of health was being seriously underestimated and requested the public prosecutor to take adequate measures in order to prevent a further deterioration of the applicant’s health.

On 13 August, 10 September, 9 and 10 October and 3 November 1997 the applicant was examined by a doctor. On 7 November 1997, Dr. C.D. Wynter of the St. Maarten Medical Centre examined the applicant. In his written report on this examination to Dr. Cova , Dr. Wynter stated that laboratory and electrocardiogram were normal and that also the respiratory, cardiac and neurological examinations were normal. He had advised the applicant to stop smoking and to avoid caffeine. As the applicant’s symptoms had improved, Dr Wynter suggested that the applicant would continue to take a particular drug.

The applicant was further examined by a doctor on 19 and 25 November 1997. After having been transferred to the Koraal Specht prison on the isle of Curaçao , the applicant was examined by the prison doctor, Dr. Krishnadath , on 12 and 23 January and 2 February 1998. On 3 February 1998, another doctor, Dr. Blankevoort , examined the applicant. On 21 and 28 January 1998, the applicant was examined by a cardiologist, Dr. Steward, who - in his report of 29 January 1998 to Dr. Krishnadath - stated that he had concluded, following a hyperventilation provocation test, that the applicant was suffering from hyperventilation and that he had advised the applicant to cease the medication he was taking. Dr. Steward did consider that the applicant’s symptoms needed to be kept under control.

After having been transferred back to the Point Blanche penitentiary, the applicant was examined by a doctor on 5, 10 and 17 February 1998.

c. 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 has no lights after sunset and that the inmates remain 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.

d. 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 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 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 received also 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 are exempted from control by the prison authorities and, consequently, may 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.

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

On 5 October 1996, Mr Gebhardt sent to the Netherlands Minister of Justice a copy of a complaint in which no reference is made to any specific person, which he had filed on 1 March 1996 with the Office of the Procurator-General of Curaçao and which had remained unanswered, about “the illegal ways the Dutch court of first instance on St. Maarten is blocking legally filed lawsuits if detained persons claim their rights.” and demanded that the Minister would advise the President of the Joint Court of Justice to take steps to ensure that such illegal behaviour would not happen again.

By letter of 10 January 1997, Mr Gebhardt filed a petition with the European Parliament for an enquiry by this parliament into the applicant’s situation. On the same day. Mr Gebhardt addressed a copy of the “lawsuit” he had sent to the Joint Court of Justice to the President of the Joint Court of Justice and the Netherlands Minister of Justice.

On 24 April 1997, Mr Gebhardt sent the Queen of the Netherlands copies of his letters to the Netherlands Minister of Justice in which he had complained about violations of the European Convention on Human Rights allegedly committed by State agents of the Netherlands Antilles, namely obtaining confessions of suspects by the use of savage force. Mr Gebhardt explained that all these claims were pending since years as neither the office of the local public prosecutor, the office of the Procurator-General in Curaçao nor the Netherlands Minister of Justice were willing to answer in these matters. Mr Gebhardt requested the Queen to order the Netherlands Minister of Justice to answer his claims at issue.

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.

II Relevant domestic law and practice

Under Article 50ter of the former Code of Criminal Procedure of the Netherlands Antilles [1] , in force at the relevant time, every practising lawyer registered with the Joint Court of Justice of the Netherlands Antilles and Aruba is competent to represent accused in criminal proceedings in the Netherlands Antilles. In case of absolute necessity (“ volstrekte noodzakelijkheid ”) other suitable persons, like foreign lawyers, may be allowed to act as counsel.

Where an accused has filed an appeal against a conviction and is detained pending these criminal proceedings, he or she is considered under the laws of the Netherlands Antilles as being placed in pre-trial detention until the moment his or her conviction has become full and final. An accused may, in accordance with the relevant provisions of the Code of Criminal Procedure of the Netherlands Antilles, request the Joint Court of Justice to be released pending the criminal proceedings against him.

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 Justice, the Public Prosecutor, the Procurator-General and the Lieutenant Governor ( gezaghebber ), all correspondence of detainees is subject to control by the prison authorities.

The Order and Disciplinary Regulations for Prisons and Remand Centres will be replaced at some point in time in the future by a new National Ordinance on Prisons in the Netherlands Antilles ( Landsverorderning Beginselen Gevangeniswezen ). Also a new Prison Regulation ( Gevangenismaatregel ) and Internal Prison Rules ( Huishoudelijke Reglementen ) are currently being prepared [2] .

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 will change in the future with the entry into force of the new National Ordinance on Prisons in the Netherlands Antilles, in which detainees will be given a limited right of complaint and in which the mandate of the Prisons and Remand Centres Supervisory Board will include 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 present system, problems relating to conditions of detention can further be reported to the Office of the Procutator -General. If it appears that unacceptable behaviour is taking place in a detention facility, the Procurator-General may order an inquiry to be carried out by the National Criminal Investigation Department ( Landsrecherche ).

The first paragraph of Article 50 sexies 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.

COMPLAINTS

The Court understands from the applicant’s submissions that he wishes to make the following complaints:

- under Article 6 §§ 1 and 3 (c) of the Convention that he has no access to court in relation to proceedings he wishes to institute for alleged violations of his rights under the Convention in the criminal proceedings against him and that in these criminal proceedings the judiciary authorities of the Netherlands Antilles unlawfully sought to influence his defence lawyer, by suggesting that a withdrawal of the applicant’s appeal in cassation could result in the applicant’s early release, thus rendering a proper defence impossible;

- 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;

- under Article 13 of the Convention that a complaint filed with the Procurator-General of Curaçao against the public prosecutors to the First Instance Court of St. Maarten for having violated the Criminal Code in the criminal proceedings against him has remained without any reaction and that also a complaint filed with the Netherlands Minister of Justice against the judge of the First Instance Court of St. Maarten who determined the criminal charges against him has remained without reply; and

- under Article 13 of the Convention that he has no effective remedy as regards alleged violations of his rights under Article 3, Article 5 §§ 1 (c) and 2, Article 6 §§ 1, 2 and 3 (c) and (d), 8 and Article 10 of the Convention in that complaints filed with various authorities by his representative remain unanswered and in that the judicial authorities of the Netherlands Antilles refuse to take into consideration his representative’s submissions of 7 January 1997 to the Joint Court of Justice thus blocking the proceedings he sought to institute before this Court.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 18 March 1997 and registered on 8 August 1997.

On 3 August 1998, in accordance with Rule 47 § 2 (a) of the Rules of Procedure of the European Commission of Human Rights, the member of the Commission appointed as Rapporteur requested the respondent Government to submit further documentation and information in relation to the application.

The Government submitted the documentation and information requested on 14 October 1998 after an extension of the time-limit fixed for that purpose. The applicant replied to the Government’s submissions on 24 January 1999, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. Relying on Article 6 §§ 1 and 3 of the Convention and on Article 13 in conjunction with Article 3, Article 5 §§ 1 (c) and 2, Article 6 §§ 1, 2 and 3 (c) and (d) and Article 10 of the Convention, the applicant raises a number of complaints relating to the criminal proceedings brought against him in the Netherlands Antilles and the general judicial and penitentiary system in the Netherlands Antilles.

a. As regards the criminal proceedings against the applicant, the Court observes that the applicant has withdrawn his appeal in cassation to the Supreme Court. The question therefore arises whether, in this respect, the applicant has exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention.

The Court reiterates that the purpose of the requirement that domestic remedies must be exhausted is to afford the Contracting States the opportunity of preventing or putting right - normally through the courts - the violations alleged against them before those allegations are submitted to the Convention institutions. This means that the complaint which it is intended to bring before the Court must first be raised, at least in substance and in compliance with the relevant requirements of domestic law, before the appropriate national courts (see, inter alia , the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1210, §§ 65-66).

Accordingly, the applicant did not provide the domestic courts, and more particularly the Netherlands Supreme Court, with the opportunity of preventing or putting right the alleged violations of his rights under the Convention in the criminal proceedings brought against him in the Netherlands Antilles. As to the applicant’s argument that the judiciary authorities of the Netherlands Antilles unlawfully sought to influence the exercise of his defence rights, by suggesting that a withdrawal of the applicant’s appeal in cassation could result in his early release, the Court finds no indication in the case-file that such a suggestion has in fact been made or that any pressure from the side of the authorities was in fact applied on the applicant to withdraw his appeal in cassation .

In these circumstances, the Court is of the opinion that, as regards the compatibility of the criminal proceedings against the applicant with his rights under the Convention, the applicant has failed to comply with the requirement of exhaustion of domestic remedies and that, consequently, this part of the application must be rejected under Article 35 § 1 of the Convention.

b. In so far as the applicant’s complaints under the Convention relate to the general judicial and penitentiary system in the Netherlands Antilles, the Court considers that whilst Article 33 of the Convention permits a High Contracting Party to refer to the Court “any alleged breach” of the Convention by another High Contracting Party, Article 34 of the Convention requires that individual applicants should be able to claim to be a “victim” in that they are actually affected by the measure of which they complain. Article 34 of the Convention may not be used to found an action in the nature of an actio popularis (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15, § 30).

The Court will, therefore, only examine those complaints in relation to facts directly linked with the applicant’s personal situation. In so far as the applicant’s complaints have no link with his own factual situation, the Court considers that these complaints must be rejected as incompatible ratione personae .

2. The applicant has also complained under Article 13 of the Convention that he has no effective remedy as regards alleged violation of his rights under Article 3, Article 5 §§ 1 (c) and 2, Article 6 §§ 1, 2 and 3 (c) and (d), Article 8 and Article 10 of the Convention in that complaints filed with various authorities by his representative remain unanswered.

Article 13 of the Convention reads as follows:

"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."

Article 3 of the Convention provides:

"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 5 of the Convention guarantees the right to liberty and security, Article 6 of the Convention guarantees the right to a fair trial and Article 10 guarantees the freedom of expression.

a. The Court considers that the applicant’s complaint under Article 13 in conjunction with Article 5 §§ 1 (c) and 2, Article 6 §§ 1, 2 and 3 (c) and (d) and Article 10 of the Convention, in so far as this complaint is linked to his personal situation, has remained fully unsubstantiated.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

b. Insofar as the applicant complains under Article 13 of the Convention in conjunction with Articles 3 and 8 of the Convention of a lack of an 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 Court considers that this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 § 3 (b) of the Court’s Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

3. The applicant finally complains under Article 8 of the Convention of interference by the penitentiary authorities in the Netherlands Antilles with his correspondence with his lawyer, 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 in 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 Court considers that also this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 § 3 (b) of the Court’s Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint that he had no effective remedy as regards the conditions in which he was detained in the Netherlands Antilles and the control by the penitentiary authorities in the Netherlands Antilles of his correspondence and the applicant’s complaint of the control by the penitentiary authorities in the Netherlands Antilles of his correspondence and the restrictions placed on him in establishing contacts, via letters or by telephone, with persons outside his place of detention; and.

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President

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

[2] . 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.