CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1992

.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. 19435/92                     by Stephan ROELOFS                     against the Netherlands          The European Commission of Human Rights (Second Chamber) sitting in private on 1 July 1992, the following members being present:                MM.   S. TRECHSEL, President of the Second Chamber                   G. JÖRUNDSSON                   A. WEITZEL                   J.-C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs. G. H. THUNE              MM.   F. MARTINEZ                   L. LOUCAIDES                   J.-C. GEUS                  Mr.   K. ROGGE, Secretary to the Second Chamber          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 20 January 1992 by Stephan ROELOFS against the Netherlands and registered on 24 January 1992 under file No. 19435/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:     THE FACTS        The applicant is a Dutch citizen, born in 1968.   When introducing the application, he was detained in a prison at Leeuwarden, the Netherlands.   He is represented by Mr. G. de Jonge, a lawyer at Maastricht.        The facts of the case as presented by the applicant may be summarised as follows.        On 18 May 1990, the Director of the Amsterdam House of Detention "Havenstraat" ordered that the applicant, who was then detained on remand at this House of Detention, should be kept in isolation because of information that he was planning to abscond with the help of a firearm.   The firearm was to be hidden in a football which would be kicked over the walls of the House of Detention.        The applicant lodged a complaint against the decision to the Complaints Board (Beklagcommissie) of the Supervisory Commission (Commissie van Toezicht) of the House of Detention.   On 26 February 1991, the Complaints Board declared the complaint unfounded.        Against this decision the applicant lodged an appeal with the Appeals Board (Beroepscommissie) of the Prisons Section of the Central Board for the Application of Penal Law (Sectie Gevangeniswezen van de Centrale Raad voor Strafrechtstoepassing) in The Hague.   On 22 July 1991, the Board declared the appeal unfounded.        As a result of the isolation order the applicant spent 28 days in isolation at Veenhuizen and 30 days in isolation at Maastricht.   After a short period at the House of Detention at Utrecht, he was placed, by decision of the Deputy Minister of Justice dated 23 July 1990, in a special security prison (extra beveiligde inrichting).   He was then submitted to the so-called merry-go-round system (carrouselsysteem), under which detainees spend periods of six months in one special security prison after another.        In the appeal proceedings brought by the applicant he insisted that the person who had told the story about the escape plans with the help of a firearm in a football should be heard. It had in fact appeared that the source was another detainee who had told this story to a "group leader" who in his turn had informed the Director of the House of Detention.   However, neither the Complaints Board nor the Appeals Board agreed to interrogating the detainee concerned.     COMPLAINTS        The applicant complains of a violation of Article 6 of the Convention in that the isolation as well as the application of the merry-go-round system were based on hearsay evidence by an anonymous person who was not heard during the proceedings.   The applicant refers in this context to the Kostovski case (Eur. Court H.R., judgment of 20 November 1989).          The applicant further complains of a violation of Article 5 of the Convention in that the merry-go-round system had no basis in law.   Consequently his detention under that system was unlawful and there would be no effective remedy in the Netherlands which should be exhausted in this regard.     THE LAW   1.    The applicant complains of a violation of Article 6 (Art. 6) of the Convention in that his isolation as well as the application of the merry-go-round system were based on hearsay evidence by an anonymous detainee.   Article 6 para. 1 (Art. 6-1) of the Convention reads, insofar as relevant, as follows:        "1.   In the determination of his civil rights and      obligations or of any criminal charge against him,      everyone is entitled to a fair and public hearing      within a reasonable time by an independent and      impartial tribunal established by law."        Moreover, Article 6 para. 3 (d) (Art. 6-3-d) of the Convention provides that everyone charged with a criminal offence shall have the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".        The question therefore arises whether the decision to keep the applicant in isolation and to subject him to the merry-go- round system concerned the determination of his civil rights or of a criminal charge against him.        In this respect the Commission first notes that the applicant was at the relevant time detained.   The decisions complained of did not concern the question whether he should be deprived of his liberty but merely the conditions under which his further detention should be performed.   The Commission considers that the determination of the place and conditions of detention are as a rule administrative matters which cannot be considered to concern the determination of the detainee's civil rights. There is no reason to make a different assessment in the present case.        The Commission further notes that the detention regime imposed by the decisions complained of was ordered as a security measure and not as a sanction against the applicant for an offence committed by him.   The applicant was not charged with any criminal or disciplinary offence, but the decisions were aimed at eliminating a risk of the applicant absconding which was considered to be serious.   In these circumstances the Commission considers that the proceedings did not concern the determination of a criminal charge and that in these proceedings the applicant was not charged with a criminal offence.        It follows that this part of the application is incompatible with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains of a violation of Article 5 (Art. 5) of the Convention in that the merry-go-round system had no legal basis and in that his detention under that system was therefore unlawful.        Article 5 para. 1 (Art. 5-1) of the Convention permits deprivation of liberty in specific cases, for instance "after conviction by a competent court" (para. 1 a) or "for the purpose of bringing (a person) before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so" (para. 1 c).   In both those cases, it is further required that the detention shall be "lawful".        It has not been alleged that the applicant's detention at the relevant time was in itself unlawful.   The only question is whether the detention became unlawful if, as claimed by the applicant, the specific conditions under which he was detained did not have a basis in law.        The Commission considers, however, that insofar as Article 5 para. 1 (Art. 5-1) of the Convention requires that detention shall be lawful, it refers to the legal basis for the deprivation of a person's liberty.   It does not refer to the detention regime which to a large extent may be determined by the administrative authorities, it being understood that the regime must always comply with the requirements of Article 3 (Art. 3) of the Convention.        It follows that in the present case the applicant's complaint of a violation of Article 5 (Art. 5) of the Convention is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, unanimously          DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Second Chamber        President of the Second           Chamber                           Chamber            (K. ROGGE)                         (S. TRECHSEL)