CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 5 avril 1994

.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. 20314/92                     by Franklin VELTHUIS                     against Portugal          The European Commission of Human Rights sitting in private on 5 April 1994, the following members being present:        MM.   C.A. NØRGAARD, President           S. TRECHSEL           A. WEITZEL           F. ERMACORA           E. BUSUTTIL           A.S. GÖZÜBÜYÜK           J.-C. SOYER           H.G. SCHERMERS           H. DANELIUS      Mrs. G.H. THUNE      MM.   F. MARTINEZ      Mrs. J. LIDDY      MM.   L. LOUCAIDES           J.-C. GEUS           M.P. PELLONPÄÄ           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA           I. BÉKÉS           J. MUCHA           E. KONSTANTINOV           D. SVÁBY        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 10 April 1991 by Franklin VELTHUIS against Portugal and registered on 17 July 1992 under file No. 20314/92;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;          Having regard to :   -     reports provided for in Rule 47 of the Rules of Procedure of the     Commission;   -     the observations submitted by the respondent Government on      2 June 1993 and the observations in reply submitted by the      applicant on 10 December 1993;        Having deliberated;        Decides as follows: THE FACTS   Particular circumstances of the case        The applicant is a Dutch citizen, born in 1950, and at present detained in Portugal.        The facts of the present case as submitted by the parties may be summarised as follows.        On 31 May 1989 in Amsterdam the applicant received a telephone call from a Portuguese acquaintance, J.M., who asked him to come to Portugal as soon as possible. On 1 June 1989 the applicant travelled to Portugal where he was arrested and detained on arrival at Lisbon airport on suspicion of drug trafficking. He was remanded in custody. A judicial decision of 2 June 1989 confirmed his detention on remand.        It then appeared that J.M. had already been arrested on 26 May 1989 and that he had collaborated with the police in persuading the applicant to travel to Portugal where the police intended to arrest him.        In accordance with Article 213 of the Code of Criminal Procedure the conditions of the applicant's detention on remand and its maintenance were regularly submitted to judicial control: on 19 August 1989, 20 November 1989, 6 February 1990 and 3 May 1990.        The applicant did not appeal against the decisions by which his detention on remand was maintained.        On 5 February 1990 the applicant lodged a 'habeas corpus' appeal to the Supreme Court (Supremo Tribunal de Justiça). He alleged that his detention on remand had become illegal since it had exceeded a certain period.        On 14 February 1990 the Supreme Court declared the detention on remand to be lawful and rejected the appeal.        After spending nearly 20 months (1 June 1989 - 28 January 1991) in detention on remand, the applicant was sentenced for drug trafficking on 28 January 1991 by the District Court (Tribunal de Circulo) of Portimao to eleven and a half years' imprisonment and a fine of 3 million escudos.   The court also decided to expel him from the country for a period of 10 years. In contrast, J.M. received a lenient sentence as a reward for having collaborated with the police.        The applicant appealed to the Supreme Court which, on 14 November 1991, confirmed the judgment against him.        The applicant unsuccessfully complained to various Portuguese authorities about the deceitful manner in which he had been persuaded to travel to Portugal.        On 20 September 1991 the Netherlands Embassy in Lisbon addressed a 'note verbale' to the Portuguese Ministry of Foreign Affairs, in which the Embassy stated, inter alia:             "S'il devait s'avérer qu'en effet un           ressortissant néerlandais fut attiré comme           présenté ci-dessus afin de pouvoir l'arrêter au           Portugal, les autorités néerlandaises ne peuvent           y voir que manque de respect pour la souveraineté           des Pays-Bas.             Lesdites autorités sont de l'avis que dans ce cas           la situation d'avant juin 1989 devrait être           rétablie et que la coopération luso-néerlandaise           en ce qui concerne la lutte contre le trafic           international de drogues trouverait son compte à           ce que le procès contre le ressortissant           néerlandais mentionné fût transféré aux Pays-Bas,           si besoin en est après une demande           d'extradition."        The Portuguese Ministry of Foreign Affairs, in its reply, denied that there had been any lack of respect for the sovereignty of the Netherlands and further stated that a transfer of the applicant to the Netherlands for the purpose of serving his sentence could be considered after Portugal had ratified the Council of Europe Convention on the subject.   Relevant domestic law        Provisions on detention on remand are contained in the Code of Criminal Procedure (CCP).        A re-examination of such detention shall take place every three months. The competent juge shall then decide whether the detention shall be maintained or the detained person shall be released (Article 213 para.1 CCP).        Article 215 of the CCP provides for a maximum length of detention on remand.        The implementation and maintenance of detention measures may be contested by means of an appeal lodged with the court of appeal. Specific rules of procedure apply to this appeal: the appeal is immediately and separately transmitted to the competent court of appeal (Articles 406 para. 2 and 407 para. 1 c) CCP), which is bound to rule on the case within a time-limit of 30 days from the day it receives the relevant files (Articles 219 and 427 CCP).        Moreover, a person who considers himself to be a victim of an unlawful arrest or detention on remand may lodge a 'habeas corpus' appeal, provided that the conditions for this extraordinary appeal, laid down in Article 220 a) and d) CCP(arrest) or Article 222 para. 2 a) and c) CCP (detention), are met.        Article 417 of the Criminal Code provides for sanctions against officials who act contrary to the law when enforcing measures of detention. Complaints of this kind must be lodged with the public procecutor's office.     COMPLAINTS        The applicant claims that his arrest and detention were illegal, because he was brought to Portugal by deceitful means on the initiative of the Portuguese police.   He invokes Article 5 para. 1 (a) and (c) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 10 April 1991 and registered on 17 July 1992.        On 29 March 1993 the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits.        The Government's observations written in Portuguese were submitted within the indicated time-limit on 2 June 1993. Following an extension of the time-limit, the Government submitted the French translation of their observations on 30 August 1993. The applicant's observations in reply were submitted on 10 December 1993.        On 10 December 1993 the applicant was granted legal aid.   THE LAW   1.    The applicant claims that his arrest and detention were illegal because he was persuaded to travel to Portugal by deceitful means on the initiative of the Portuguese police. He invokes Article 5 para. 1 (a) and (c) (Art. 5-1-a, 5-1-c) of the Convention, which read as follows:        " Everyone has the right to liberty and security of person. No    one shall be deprived of his liberty save in the following cases      and in accordance with a procedure prescribed by law:             a) the lawful detention of a person after conviction      by a       competent court ; ...             c) the lawful arrest or detention of a person effected           for the purpose of bringing him 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 ; ..."        The Commission finds that the applicant's complaint concerns the alleged unlawfulness of his arrest and detention on remand and, implicitly, the alleged unlawfulness of his detention after his conviction. It will therefore examine each of these aspects separately.   2.    As to the applicant's arrest and detention on remand        The Government do not deny that the Portuguese police collaborated with the applicant's acquaintance, J.M., in order to persuade the applicant to go to Portugal so that they could arrest him for suspected drug offences. They submit, however, that the application is inadmissible for non-compliance with Article 26 (Art. 26) of the Convention, both as regards exhaustion of domestic remedies and the six months' rule.        The Government contend that the applicant did not challenge his detention on remand before the Court of Appeal. Thus he appealed neither against the judicial decision of 2 June 1989 confirming his detention on remand after his arrest, nor against the subsequent decisions maintaining his detention on remand. The Government also point out that if the applicant had considered that his arrest was illegal he should have lodged a complaint with the competent public procecutor's office in order to have the officials concerned sanctioned.        The Government note that the applicant initially failed to lodge a 'habeas corpus' appeal with the Supreme Court. This extraordinary appeal enables the lawfulness of detention to be verified. The Government acknowledge that later, on 5 February 1990, the applicant lodged such an appeal. However, in these proceedings the applicant only alleged that his detention on remand had become illegal since it had exceeded a certain period. He did not claim that his arrest and detention on remand had been unlawful. Therefore, the Government consider that the complaint has not been raised in substance.        Additionally, the Government submit that, even assuming that domestic remedies have been exhausted, the applicant did not observe the six months' time-limit laid down in Article 26 (Art. 26) of the Convention, since the application was introduced on 10 April 1991 and the last domestic judicial decision concerning this issue was taken on 3 May 1990 (the decision controlling and maintaining the applicant's detention on remand).        The applicant submits that he experienced some practical difficulties in having the alleged illegality of his arrest and detention on remand examined by the Portuguese courts. He unsuccessfully complained to various Portuguese authorities about the deceitful manner in which he had been persuaded to travel to Portugal.        The Commission recalls its constant case-law that exhaustion of domestic remedies pursuant to Article 26 (Art. 26) of the Convention requires an applicant "to make normal use of those domestic remedies which are likely to be effective and adequate to remedy the matters of which he complains" (No. 11471/85, Crémieux v. France, Dec. 19.01.89, D.R. 59 p. 67, at p. 80). The Commission also recalls that in order to exhaust domestic remedies an applicant "must have raised before the national authorities, at least in substance, the complaint he puts to the Commission" (No. 11798/85, Castells v. Spain, Dec. 7.11.89, D.R. 63 p. 89).        As regards the facts of the present case, the Commission accepts that the applicant may have experienced some practical difficulties in having the alleged illegality of his arrest and detention on remand examined by the Portuguese courts. However, the Commission notes that the applicant did not lodge any ordinary appeal against the decision to remand him in custody or against the subsequent decisions maintaining his detention on remand. Nor did he lodge an immediate 'habeas corpus' application with the Supreme Court or a complaint with the public prosecutor's office concerning the alleged unlawfulness of his arrest and detention. The Commission further notes that, although the applicant later lodged a 'habeas corpus' appeal with the Supreme Court, he did not raise, at least in substance, before that Court the issue which he puts before the Commission.        In these circumstances, the Commission concludes that the applicant did not exhaust domestic remedies in respect of his complaint that his arrest and detention were allegedly unlawful because of the deceit used in bringing him to Portugal. It follows that this part of the application must be rejected pursuant to Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.     3.    As to the lawfulness of the applicant's detention after his      conviction        The Commission considers that implicit in the applicant's complaint about the deceit employed in his case is an allegation that his detention after conviction was also unlawful. However, apparently the applicant did not base his appeal to the Supreme Court against conviction and sentence on the allegedly illegal manner in which he was persuaded to travel to Portugal in order to be arrested. Nevertheless, even assuming that the applicant raised this matter, at least in substance, in his appeal, the Commission cannot find that the circumstances in which the applicant went to Portugal could make his subsequent detention after conviction and sentence unlawful.        The Commission therefore finds that this part of the application 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 Commission              President of the Commission        (H.C. KRÜGER)                             (C.A. NØRGAARD)