Information Note on the Court’s case-law 40

March 2002

Milošević v. the Netherlands (dec.) - 77631/01

Decision 19.3.2002 [Section II]

Article 35

Article 35-1

Exhaustion of domestic remedies

Detention in the Netherlands of former President of the Federal Republic of Yugoslavia, indicted by the ICTY, and proceedings before that court: inadmissible

The applicant is the former president of the Federal Republic of Y ugoslavia. He was indicted by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY). He was arrested in the Federal Republic of Yugoslavia and transferred to the ICTY. He brought summary civil proceedings against the Nether lands State before the President of the Regional Court of The Hague requesting his release, arguing notably that his transfer to the ICTY was illegal, that the ICTY had no legal basis in international law, that it was not impartial and independent, that it was discriminatory and, finally, that he was entitled to immunity as a former head of State. He concluded that, in view of these elements, the Netherlands State had acted unlawfully by allowing him to be detained and remain in detention on its territory. In a judgment of 31 August 2001, the President of the Regional Court held, first, that the ICTY had sufficient legal basis, secondly, that it offered sufficient procedural guarantees and, finally, that the courts of the Netherlands were not competent to co nsider the applicant’s request for release as the Netherlands had lawfully transferred its jurisdiction over the ICTY’s indictees to the ICTY. The applicant lodged an appeal against this judgment but later withdrew it. He made several complaints before the Court concerning his detention in the Netherlands, the proceedings before the ICTY, his restricted contacts with the press and media, the absence of an available and effective remedy other than that of the ICTY, and, finally, of discrimination.

Inadmissib le under Article 5 § 1,  § 2 and  § 4, Article 6 § 1,  § 2 and  § 3 (c), as well as Articles 10, 13 and 14: It was not clear whether all complaints were made at the domestic level. To the extent that they were not, there was a failure to exhaust the availa ble domestic remedies. To the extent that they were, the applicant had withdrawn his appeal against the judgment of the Regional Court. The applicant alleged that it was clear from this judgment that no adequate and effective domestic remedies were availab le, the President of the Regional Court having held that the domestic courts had no jurisdiction to entertain his claims. However, the applicant did not make use of the opportunities offered by domestic law to challenge this finding, as he withdrew his app eal to the Court of Appeal, thus depriving himself of the possibility of lodging a subsequent appeal on points of law with the Supreme Court. The existence of mere doubts as to the prospects of success of a particular remedy which does not clearly appear t o be futile is not a valid reason for failing to exhaust domestic remedies: non-exhaustion.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes