[align=left](b) In his letter of 25th October, 1965, the Applicant's lawyer raised
two further formal questions which he referred to the Commission
without himself making any specific proposal:

(i) He indicated that the time-limit for the submission of the
Government's observations had expired on 1st August, 1965; that,
nevertheless, the document signed by Mr. B had been sent to the
Netherlands Permanent Representative at the Council of Europe on 2nd
August, 1965; and had probably not been submitted to the Commission
until 4th August, 1965.

(ii) He further indicated that the document signed by Mr. B was drafted
in Dutch although the Government had not obtained permission to use
a language other than the official ones; and that a translation into
English had not been submitted until much later.

II. On the admissibility

A. Complaints regarding the Applicant's detention in the Netherlands

1. The question whether or not the Applicant's detention was
permissible under Article 5, paragraph (1), of the Convention

The Applicant's lawyer stated that, according to information given to
the Applicant, he was detained at first, pending the decision to
declare him "an undesired alien" and, after such a decision had been
given, pending his deportation. The lawyer alleged:

(a) that the Applicant was not being detained "awaiting procedure and
decision of a deportation court as there is no deportation court in the
Netherlands";

(b) that his detention was not lawful, there being no provision in
Dutch law which provides for detention in such a case; in particular,
Article 9 of the Aliens Act of 1849 which was invoked by the
authorities does not provide for detention. (Article 9 states as
follows: "Aliens who have not been admitted and cannot obtain a
passport shall, if they are nevertheless found within the country, be
taken across its frontiers").

(c) that he was detained with a view to extradition de facto although
extradition could not legally be effected (the submissions on this
point are set out more fully below).

The Government stated that the Applicant was told immediately after
arriving on 12th November, 1962 at the Rotterdam Police Station that
he was being held pending his deportation. In regard to the
Applicant's allegations it was stated:

(a) that neither the first part of Article 5 ("in accordance with
a procedure prescribed by law", "selon les voies légales") nor the
wording of Article 5, paragraph (1)(f) ("action ... with a view to
deportation or extradition", une procédure d'expulsion ou
d'extradition") of the Convention, can be held to require specific
court proceedings as a condition of detention; and that, therefore, the
fact that there are not, under Dutch law, any specific court
proceedings in deportation cases does not make the Applicant's
detention contrary to the Convention;

(b) that the Convention, of which Article 5, paragraph (1)(f)
authorises detention with a view to deportation, forms part of
Netherlands law;

that deportation is permitted under Article 9 of the Aliens Act;
and that deportation of a person against his will implies that the
person concerned is deprived of his liberty (detained) since otherwise
deportation could not be effected.

that the police is competent to carry out a deportation measure as
part of its duty to maintain law and order; and that, therefore, the
police is also competent to enforce detention which forms part of
the deportation procedure;

that for such detention the police normally uses the detention quarters
available at the police stations; that, for particular reasons, the
Applicant was detained longer than usual at a police station; that,
in regard to his subsequent detention at a house of detention (Huis
van Bewaring), it is to be observed that, according to a provision
in the Act regarding the principles of the prison system (Beginselenwet
gevangeniswezen), these houses are designed to accommodate persons
lawfully deprived of their liberty by public order, in so far as no
other place of detention is appointed for them;

(c) that the Applicant was detained with a view to deportation and
not extradition (the submissions on this point are set out near
fully below).

2. The Applicant not being brought before a judge or a court

The Applicant's lawyer alleged that the Applicant, during his
detention, was at no time brought before a judge or a court for a
decision on the lawfulness of his detention.

The Government stated that the Applicant's detention was not authorised
by Article 5, paragraph (1)(c), but by Article 5, paragraph (1)(f),
of the Convention which provision does not require that the detainee
should be brought before a judge or a court.

3. Interference with the Applicant's private life

The Applicant's lawyer alleged that there had been an interference
with the Applicant's private life during his detention and that this
interference was not based on any legal provisions; in particular,
the Applicant was not allowed to receive visitors which was important
for him in view of his attempts to arrange for his departure to a
country other than the USA.

The Government submitted that the Applicant's counsel had sufficient
opportunity to find a country which would be willing to receive the
Applicant; that neither the Applicant nor his counsel asked for any
such visits to be permitted; that there would have been good reasons
to refuse such visits (if the Applicant had made a request to this
effect), there being a risk of his using personal contacts for illegal
purposes; that a refusal would have been permissible under Article 8,
paragraph (2) of the Convention; that legal provisions relating to
this matter are contained in the Internal Rules of the Rotterdam House
of Detention (Huishoudelijk Reglement Huis van Bewaring te Rotterdam)
and the Prison Regulations Decree (Gevangenismaatregel) whose preamble
refers to certain articles of the Penal Code and to the act regarding
the principles of the prison system (Beginselenwet gevangeniswezen).

The Applicant's lawyer stated, in reply, that the Internal Rules
and the Decree referred to are not to be considered as "law" within
the morning of the Convention (see Article 8, paragraph (2): "in
accordance with the law") and that the articles concerned in the Penal
Code and the Act regarding the principles of the prison system are only
"law" in the formal sense of the word but not within the meaning of
the Convention.

4. Interference with the Applicant's correspondence

The Applicant's lawyer alleged that there had been interference with
the Applicant's correspondence during his detention. He stated:

(a) generally, that the Applicant's correspondence was controlled
(including, during his detention in the police station, his
correspondence with his lawyer) and that this interference was not
based on any legal provisions;

(b) in particular, that the Applicant wrote a letter to his lawyer
on 12th September 1963 and asked for permission to send it as an
express letter; that the letter was accepted and it was promised that
the letter would be sent by express; that the letter was not received
by the lawyer until 14th September 1963, i.e. after the Applicant
had been deported to the USA; that the letter was stamped in Rotterdam
on 13th September at 18.00 hrs.; that the word "express" written
by the Applicant on the envelope had been deleted and a stamp had
been put on covering this part of the envelope.

The Government submitted

(a) that there were reasonable grounds for controlling the Applicant's
correspondence (the wish to prevent traffic in narcotics and obtain
information about possible contacts made by the Applicant for such
purpose); that the legal ground for such restrictions in the right
to free correspondence is to be found in the Prison Regulations Decree
(Gevangenismaatregel), the Internal Rules of the Rotterdam House of
Detention (Huishoudelijk Reglement Huis van Bewaring te Rotterdam)
and the service Regulation No. 19 of the Rotterdam Municipal Police
(Dienstvoorschrift No. 19 van de Gemeentepolitie te Rotterdam);
that these restrictions are permissible under Article 8, paragraph (2),
of the Convention; and that the Convention did not give any special
protection to the Applicant's correspondence with his lawyer,
as Article 6, paragraph (3) (c), is applicable only to cases of
criminal proceedings and no such proceedings had been instituted
against the Applicant.

(b) that the particular letter referred to by the Applicant's lawyer
was found in the house of detention on 13th September 1963, after
the Applicant's departure; that it was posted on the same day;
that it is not known, whether the letter was marked "express" and
whether, in such a case, this word was deleted; that, however, if this
was done, there were reasonable grounds for doing so.

The Applicant's lawyer stated, in reply, that the provisions referred
to by the Government are not to be considered as "law" within the
meaning of the Convention (see Article 8, paragraph (2): "in accordance
with the law").

5. Presumption of innocence

The Applicant's lawyer stated: "The Dutch Government has always
asserted that applicant should have entered Holland by an illegal way.
But there has been no trial against applicant because of illegal entry;
so the applicant can't be held guilty of such offense".

The Government replied that this allegation apparently related to
Article 6, paragraph (2), of the Convention; that, however, this
provision only applies to persons charged with a criminal offense;
that this was not the case with the Applicant (the Government also
referred to Application No. 858/60, Yearbook IV, page 225).

6. Remedies in Dutch Law

The Parties' submissions as to the remedies in Dutch law are relevant
in respect of two different questions under the Convention, namely

(a) whether the Applicant was entitled under Dutch law to take
proceedings by which the lawfulness of his detention should be decided
by a court and his release ordered where the detention was not lawful,
as required by Article 5, paragraph (4), of the Convention; and

(b) whether the Applicant exhausted domestic remedies within the
meaning of Article 26 of the Convention.

The Applicant's lawyer submitted

that there are no remedies in Dutch law, by which an alien could
obtain a decision either on the lawfulness of his detention except
if he is interned under the provisions of the Aliens Act of 1918 which
was not the case with the Applicant, or in regard to an interference
with his private life and correspondence; that, in particular, there
is not, in respect of detention, a remedy which satisfies the
requirements of Article 5, paragraph (4); that, although the
Convention forms part of Dutch law, Article 5, paragraph (4), and
Article 13 are not considered to be "self-executing";

that it is true that an alien can bring a civil action alleging
"détournement de pouvoir" by the authorities; that, however, where
such an actionis brought, the courts are only competent to proceed to
a marginal examination of the issue of detention; that, in fact, they
can only consider whether the authorities have acted from wrongful
motives but they are not competent to re-examine the administrative
decisions as such; and that this limitation of the examination makes
an action ineffective, since the motives from which the officials acted
can hardly ever be proved.

The Applicant's lawyer also referred, in this regard, to certain
passages in the report which Professor A submitted, on ... 1963, to
the Minister of Justice (see above). In this report, Professor A
also dealt with the possibility of an action in regard to the
Applicant's deportation based on alleged détournement de pouvoir and
stated inter alia:

"An action based on alleged détournement de pouvoir can only be
successful if it is evident that the competence of the authorities
concerned has been used for a purpose other than that for which it is
given. As you certainly know, Your Excellency, the Supreme Court (Hoge
Raad), in such a case, does not look at the factual consequences of the
measures taken by the authorities but examines only if the motives
which inspired the authorities in taking the measures concerned are
acceptable in view of the purpose of the legal provisions on which the
competence of the authorities concerned is based (see e.g. Supreme
Court 14-1-49, Nederlandse Jurisprudentie 557; 24-6-49, Nederlandse
Jurisprudentie 559). What these motives were is deduced from possible
statements by these authorities or from other facts.

Difficulties arise when the authorities have been inspired by different
motives some of which are in conformity with the law, while other
motives are not. It would be possible to deduce from Supreme Court
24-6-49, Nederlandse Jurisprudentie 559 ... that an action based on
alleged détournement de pouvoir would also be successful in such cases.
It is true that the question of establishing the "motifs déterminants"
is also to be considered. According to the interpretation of
Hofmann-Drion-Wiersma in Het Ned. Verbintenissenrecht, 1959, page 234,
the decision concerned implies that, in the opinion of the Supreme
Court, there can only be détournement de pouvoir when it is established
that the measures taken by the authorities are entirely inspired by a
purpose which is contrary to the purpose of the law ...".
The Government submitted that the question whether or not the
Applicant's detention was lawful could have been examined by a court
if he had brought an action based on Article 1401 of the Civil Code
(this Article states as follows: "Any wrongful act, as a result of
which damage has been inflicted on another person, makes the person by
whose fault damage has been caused liable to pay compensation") which
provision can also be applied to the conduct of the public authorities;
that, when such action is brought, it is regular practice to test the
conduct of the authorities in respect not only of possible violations
of the system of law and justice, but also of "détournement de pouvoir"
or "abus de droit"; that the courts can also investigate the question
whether or not deprivation or restriction of liberty has been lawful
(rechtmatig); that the Applicant can, in fact, still bring such an
action in regard to his detention and other alleged violations of
the Convention; and that it would be incorrect to describe this remedy
as "inadequate".

B. Complaints relating to the Applicant's deportation

1. Unlawful detention and interference with the Applicant's private
life in connection with his transportation to the USA

The Applicant's lawyer alleged that the Applicant, during his flight
to the USA was illegally deprived of his liberty and that his private
life was interfered with. In this respect, he stated, in particular,

(a) that the extradition treaty between the Netherlands and the USA
did not provide for extradition in respect of narcotics offenses or
passport frauds which were the offenses for which the Applicant was
claimed in the USA, that, despite this, the US authorities requested
the assistance of the Netherlands authorities in bringing the Applicant
back to the USA (see the letters of ... 1960 and ... 1961 referred
to on page 2 ; that the US authorities offered to pay for the
Applicant's transport and that they probably did pay for it;
that the Netherlands authorities transported the Applicant from
Amsterdam to New York where they delivered him to the US authorities;
that it is true that the Netherlands Government tried to avoid any
appearance of extradition but that, nevertheless, the Applicant was
subjected to a de facto extradition contrary to the existing
extradition treaty;

that the Netherlands authorities have repeatedly referred to the
Applicant's "deportation to the USA"; that, however, it could legally
be a question either of his deportation from the Netherlands or of
his extradition to the USA; that Article 9 of the Aliens Act only
authorises the deportation of an alien across the Dutch frontier;
and that, therefore, the transport of the Applicant to the USA could
not be justified under the Aliens Act since the Netherlands has no
frontier with the USA;

(b) that, on 12th and 13th September, 1963, the Applicant was refused
permission to contact his lawyer; that he was not allowed to telephone
the lawyer and that the letter he sent was delayed (see pages 4, 6
and 12 ; that he was even given a false message purporting to
come from his lawyer;
that, on 13th September, 1963, the lawyer tried repeatedly to obtain
information as to what was happening to the Applicant by telephoning
to various officials concerned with the case; that all such
information was refused;

that, consequently, the Applicant and his lawyer were prevented from
discussing whether legal proceedings should be instituted against
the KLM, the company which was to transport the Applicant to the USA,
or whether other legal action should be taken after the negative
decisions of the Supreme Court.[/align]