CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 décembre 1990

.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. 13147/87                       by Peter William ROBERTS                       against the Netherlands             The European Commission of Human Rights sitting in private on 7 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   J.-C. GEUS                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 18 June 1987 by Peter William ROBERTS against the Netherlands and registered on 19 August 1987 under file No. 13147/87;           Having regard   -        to the report provided for in Rule 47 of the Rules of         Procedure of the Commission;   -        to observations submitted by the respondent Government on         19 May 1989 and the letter submitted by the applicant on         9 April 1990;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a United Kingdom citizen, born in 1935, normally resident in Alvaston, Derby, and currently detained in Breda, the Netherlands.           The facts, as submitted by the parties, may be summarised as follows:           On 23 February 1987 the applicant was arrested and charged with a drugs offence.   He was detained in a police station.           On 27 February 1987, the applicant appeared with counsel before the Examining Magistrate (rechter-commissaris) in Rotterdam in connection with an application by the prosecution for his remand in custody.   At the conclusion of the hearing, the Examining Magistrate remanded the applicant in custody and informed the applicant that restrictions on his correspondence were to be imposed.   In accordance with established practice, the order imposing the restrictions was served on the applicant.           On 4 March 1987, the applicant appeared with counsel and interpreter before the Examining Magistrate in connection with an application for an extension of his remand in custody.   The application was granted and the applicant was again informed that the restrictions would remain in force.           The applicant did not oppose the imposition of restrictions by lodging an objection against the order.           On 6 March 1987 the applicant wrote to his wife, explaining to her what had happened.           It appears that some days later the applicant was sent to a prison in Breda.           By letter of 19 May 1987, which reached the applicant on 20 May 1987, the Examining Magistrate with the District Court (Arrondissementsrechtbank) of Rotterdam informed the applicant that she had not forwarded his letter of 6 March 1987 because she was of the opinion that sending it might obstruct the investigation.   She returned the letter of 6 March 1987 to the applicant.           On 20 July 1987, the Examining Magistrate lifted the restrictions.           On 2 September 1987, the applicant was convicted by the Rotterdam District Court for an offence under the Opium Act and sentenced to 15 months' imprisonment.   His appeal was dismissed by the Hague Court of Appeal (Gerechtshof) on 29 March 1988 and by the Supreme Court (Hoge Raad) on 7 February 1989.   RELEVANT DOMESTIC LAW AND PRACTICE           In the interests of the investigation, the Examining Magistrate may order measures to be taken in respect of a suspect during a preliminary judicial examination.   The imposition of such measures is based on Section 225 para. 1 of the Act promulgating the Code of Criminal Procedure of 29 June 1925 (Wet van 29 juni 1925, Stb. 308 tot invoering van het nieuwe Wetboek van Strafvordering) in conjunction with Article 132 of the Prison Rules, which permit the Examining Magistrate to restrict a suspect's correspondence or the visits he may receive.   When processing an application for remand in custody, the Examining Magistrate generally informs the suspect whether the application is being granted, whether restrictions are being imposed and what these comprise.   If the suspect does not agree with them, he may lodge an objection with the District Court pursuant to Section 225 para. 3 of the Act promulgating the Code of Criminal Procedure.   COMPLAINTS           The applicant complains of the stopping of his letter of 6 March 1987 to his wife and that it took more than ten weeks before he was informed that it had not been forwarded.   He submits that he should have been informed immediately and asked to rewrite the letter. He furthermore submits that his wife was very worried at not hearing from him.   The applicant invokes Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 18 June 1987 and registered on 19 August 1987.           On 6 March 1989, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on the admissibility and merits.           The observations of the respondent Government were submitted on 19 May 1989.           The applicant was granted legal aid by the Commission on 16 February 1990.           On 5 February 1990 the applicant's legal representative applied for an extension in the time-limit fixed for the submission of observations in reply to those of the Government.   The time-limit was extended until 15 February 1990.           By letter of 15 February 1990, the applicant's legal representative stated that she was unable to submit any observations in reply since the applicant's former lawyer in the proceedings in the Netherlands had failed to respond to her request for information.   By telefax of 9 April 1990, the applicant's legal representative sent to the Commission a letter from the applicant's former lawyer in the Netherlands, which confirmed that there had been no objection lodged in respect of the restrictions imposed on the applicant's correspondence.   THE LAW           The applicant has complained that his letter to his wife was stopped and that he was not informed of this for more than ten weeks. He invokes Article 8 (Art. 8) of the Convention, which provides:   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.           The Government submit that the applicant failed to object to the restrictions on his correspondence and therefore failed to exhaust his domestic remedies.           After examination of the facts as submitted by the parties, the Commission finds that it is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the above provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.           In the present case the applicant failed to object to the imposition of restrictions under paragraph 3 of section 225 of the Act promulgating the Code of Criminal Procedure and has, therefore, not exhausted the remedies available to him under Dutch law.   Moreover, an examination of the case as it has been submitted does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.           It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must be rejected under Article 27 para. 3 (Art. 27-3) 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)