CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 juillet 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        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.         ----------   (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)