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The Government submitted that a measure taken for deportation implies
deprivation or restriction of liberty of the person concerned; that
such deprivation or restriction of liberty is recognised by Article 5,
paragraph (1) (f), of the Convention; that any inherent interference
with a person's private life cannot be contrary to Article 8 of the
Convention; that there is no evidence to show that the Applicant's
liberty, though naturally restricted in view of the means of transport,
was actually taken away from him during the flight; that two plain
clothes police officers travelled with him in order to avoid
disturbances on board the aircraft but did not have to take any action.
The Government further stated

(a) that the Applicant was not wanted in the Netherlands, because
he had twice violated Netherlands hospitality by entering the country
with a false passport and by committing an offence in regard to
narcotics; that he was given the possibility of indicating a country
willing to receive him but that he was unable to obtain a permit to
enter any country other than the USA; that the Netherlands authorities
could therefore only deport the Applicant by sending him to the USA;
that, as the measure proposed was not extradition, the Netherlands
authorities avoided making contact with the US authorities but found
it necessary to obtain an entry document before deporting the Applicant
to the USA; that the travel tickets were ordered and paid for by
the Netherlands Ministry of Justice and that payment from the US
authorities has neither been asked for nor received; that the
Applicant himself and not the police officers accompanying him revealed
his identity to the US police; that, consequently, the Applicant was
deported and not extradited to the USA; that, moreover, the question
as to whether or not he was extradited is irrelevant under the
Convention, since the right not to be extradited is not guaranteed by
the Convention;

(b) that it was decided not to give the Applicant and his counsel
any opportunity to contact each other during the period between the
Supreme Court's final decisions and the Applicant's departure, as
such contact would have no useful purpose and could result in action
which would delay the procedure, prolong the Applicant's detention
and draw the attention of the US authorities to the Applicant's
departure; and that it is not true that a false message was passed on
to the Applicant; that the lawyer would have been allowed to take
leave of his client if he had asked permission but that he did not do
so; that the attitude of the authorities constitutes no violation of
the Convention, as Article 6, paragraph (3)(c) does not apply in the
present case and, if the situation should fall under Article 8, it
would be permissible under paragraph (2) of that Article.

The Government also submitted, as subsidiary arguments in regard
to the complaints as to the Applicant's deportation, that the question
of non-exhaustion of domestic remedies may arise, in so far as such
actions or motives are imputed to the State as were not alleged in
the court proceedings regarding alleged "wrongful acts"; and that,
moreover, if the Applicant alleges that the State's intentions were
other than those found by the Courts, the Commission could not accept
the Applicant's position without acting as an organ of appeal which
would be contrary to its jurisprudence.

2. Inhuman or degrading treatment

The Applicant's lawyer alleged that the transfer of the Applicant
constituted an inhuman or degrading treatment and indicated, in
particular, that in the USA the Applicant could be sentenced for
narcotics offenses to a much heavier sentence than could be imposed for
such offenses in Europe.

The Government submitted that deportation could only in very
exceptional cases be a violation of Article 3 of the Convention; that
this Article might be involved if an alien was deported to a country
where one of his hands might be cut off for an offence which he had
committed or if he was deported to a place totally unfit for human
habitation, such as the high seas or an uninhabited island; that,
however, the expected length of a prison sentence could not involve
this Article, particularly in view of the fact that the Convention
contains no provision regarding the length of sentences to be imposed.

THE LAW

Whereas the Commission finds it appropriate to deal first with certain
procedural questions raised by the Applicant; whereas the Applicant
has pointed out that the observations of 2nd August, 1965 have been
signed by Mr. B., a barrister at the Supreme Court and Deputy State
Legal Adviser; whereas the Applicant has further submitted that it
has not been established that Mr. B had been authorised to represent
the Netherlands Government in the present proceedings; whereas,
therefore, the Applicant has requested that the Commission should not
accept the document concerned as being the observations of the
Government;

Whereas the Commission takes into account the fact that the
observations concerned were submitted to the Commission by the
Netherlands Permanent Representative at the Council of Europe and were
stated by him to be the observations of the Netherlands Government;
whereas the Commission finds it evident that the document concerned
constitutes an authentic statement of the views of the respondent
Government and, consequently, accepts it as being the observations of
that Government;

Whereas the Applicant, without making any specific request, has also
stated that the observations of 2nd August, 1965 were submitted after
the expiry of the time-limit fixed by the Commission and that they
were first submitted only in the Dutch language although the Government
had not obtained the Commission's permission to use a language other
than one of the official languages; whereas the Commission observes
that the points raised by the Applicant relate to matters which fall
exclusively within the Commission's discretion; and whereas the
Commission finds no reason to disregard, on a formal ground, the
Government's observations or to take any other action as a result of
the Applicant's submissions in this regard;

Whereas, in regard to the substance of the Applicant's claim, it
has been alleged on his behalf that his detention in the Netherlands
was not permissible under Article 5, paragraph (1) (Art. 5-1) of the
Convention (see page 9 "Submissions of the Parties" II/A/1); whereas,
in this regard, the Applicant states, inter alia, that his detention
was not lawful under Dutch law;

Whereas, furthermore, the Applicant alleges that there was not at
his disposal a remedy satisfying the requirements of Article 5,
paragraph (4) (Art. 5-4) of the Convention (see page 14 "Submissions
of the Parties" II/A/6);

whereas in regard to these particular allegations, the Commission
has had regard to the provisions of Article 5, paragraph (1)
(Art. 5-1-f) in particular paragraph (1)(f), and of Article 5,
paragraph (4) (Art. 5-4); whereas it finds that an examination of the
Parties' submissions and the documents contained in the file does not
give it the information required for deciding on the admissibility of
these complaints; whereas the Commission has decided to request certain
further information from the Parties in regard to the admissibility of
this part of the Application, including the question as to whether the
domestic remedies have been exhausted within the meaning of Article 26
(Art. 26) of the Convention (see page 14 "Submissions of the Parties"
II/A/6);

Whereas, in the meanwhile, the Commission adjourns its examination
of this part of the Application;

Whereas the Applicant also alleges that he was extradited de facto
to the USA although extradition could not legally take place or that,
in any case, his transfer to that country was not a lawful measure
of deportation within the meaning of the provisions of the Dutch Aliens
Act (see page 16 "Submissions of the Parties" II/B/1/a);

Whereas it is to be observed that the Convention, under the terms of
Article 1, (Art. 1) guarantees only the rights and freedoms set forth
in Section I of the Convention; and whereas, under Article 25,
paragraph (1) (Art. 25-1) only the alleged violations of one of those
rights and freedoms by a Contracting Party can be the subject of an
application presented by a person, non-governmental organisation or
group of individuals;

Whereas otherwise its examination is outside the competence of the
Commission ratione materiae; whereas the right not to be extradited
or deported is not as such included among the rights and freedoms
guaranteed by the Convention; whereas in this respect the Commission
refers to its previous decisions Nos. 1465/62, X.v. Federal Republic
of Germany; Yearbook V, page 256, and 2143/64, X. v. Austria;
Collection of Decisions, Volume 14, page 15; whereas it follows that
this part of the Application is incompatible with the provisions of the
Convention within the meaning of Article 27, paragraph (2) (Art. 27-2)
of the Convention;

Whereas the Applicant also alleges that the authorities subjected
him to an inhuman or degrading treatment by taking him against his
will to the USA (see page 18 "Submissions of the Parties" II/B/2);

Whereas it is true that the Commission has held in a number of previous
cases (see, for instance, Applications Nos. 1465/62, X. v. Federal
Republic of Germany, Yearbook V, page 256, and 1802/62, X. v. Federal
Republic of Germany, Yearbook VI, page 462) that the deportation or
extradition of a foreigner to a particular country might in exceptional
circumstances give rise to the question whether there had been inhuman
treatment within the meaning of Article 3 (Art. 3) of the Convention;

Whereas,however, the Commission has no hesitation in stating that there
are no such exceptional circumstances in the present case;

Whereas it follows that this complaint is manifestly ill-founded within
the meaning of Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, in regard to the remaining complaints, an examination of the
case as it has been submitted, including an examination made ex
officio, does not disclose any appearance of a violation of the rights
and freedoms set forth in the Convention; whereas it follows that
these complaints are also manifestly ill-founded within the meaning
of Article 27, paragraph (2) (Art. 27-2) of the Convention;

Whereas, however, the Commission finds it appropriate to indicate here
below in further detail the grounds on which the Commission considers
these complaints to be manifestly ill-founded;

Whereas the Applicant alleges that, during his detention, he was not
brought before a judge or a court for a decision on the lawfulness of
his detention (see page 11 "Submissions of the Parties" II/A/2);
Whereas Article 5, paragraph (3) (Art. 5-3) of the Convention provides
that everyone arrested or detained in accordance with the provisions
of paragraph (1)(c) of the same Article (Art. 5-1-c) shall be brought
promptly before a judge or other officer authorised by law to exercise
judicial power;

Whereas the Applicant was not arrested or detained in accordance
with Article 5, paragraph (1)(c) (Art. 5-1-c); whereas, consequently,
Article 5, paragraph (3) (Art. 5-3) was not applicable to the
Applicant's case;

Whereas there is no other provision in the Convention which could give
the Applicant a similar right in the circumstances to be brought before
a judge or a court; whereas it is a separate question whether the
Applicant himself could institute court proceedings in accordance
with Article 5, paragraph (4) (Art. 5-4); whereas this question has
already been dealt with above;

Whereas the Commission has considered in relation to Article 8
(Art. 8) the Applicant's allegation of an interference with his right
to respect for his private life (see page 11 "Submissions of the
Parties" II/A/3); whereas, in particular, he complains that, during his
detention, he 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; whereas, having regard to the Government's
submissions on this point, it is not clear whether or to what extent
the Applicant was refused permission to receive visitors; whereas,
however, in so far as any such restrictions on his right to respect for
his private life were imposed, the reason was apparently that, in the
opinion of the authorities, there was a risk of the Applicant using
personal contacts for illegal purposes; whereas the Applicant has
failed to show that this opinion held by the authorities was unfounded
or unreasonable; whereas the Commission is also satisfied, on the basis
of the Government's submissions, that such restrictions were
permissible under Dutch law; whereas it follows that the measures
complained of were permissible under Article 8, paragraph (2)
(Art. 8-2) of the Convention which permits, inter alia, such
interference with the exercise of the right to respect for private life
"as is in accordance with the law and is necessary in a democratic
society - for the prevention of - crime -";

Whereas the Applicant further complains of interference with his
right to respect for his correspondence (see page 12 "Submissions
of the Parties" II/A/4); whereas, in particular, he complains that
his correspondence was controlled by the authorities during his
detention and that for a certain time such control was also exercised
in regard to his correspondence with his lawyer; whereas in a number
of previous cases the Commission has examined complaints by detained
persons regarding measures of control exercised by the authorities over
their correspondence;

Whereas in these cases the Commission has generally considered that
the practice of permitting prison authorities to examine the
correspondence of the detainees falls within the exceptions permitted
in Article 8, paragraph (2) (Art. 8-2) of the Convention (see, for
instance, Application No. 646/59, X.v.Federal Republic of Germany,
Yearbook III, page 272);

Whereas the Commission also notes that, in the present case, the
authorities considered it essential to control the Applicant's
correspondence in order to prevent the possible committal of narcotics
offenses;

Whereas the Commission is satisfied, on the basis of the Government's
submissions, that the said control was exercised in accordance with
Dutch law; whereas, consequently, the measures complained of were
permissible under Article 8, paragraph (2) (Art. 8-2); whereas the
Commission adds that, in regard to the particular letter posted on 13th
September 1963, it is not satisfied that there has been any undue delay
or other interference which could be attributed to the authorities;

Whereas, consequently, in respect of that letter, there is no
appearance of any interference within the meaning of Article 8,
paragraph (1) (Art. 8-1) of the Convention;

whereas the Applicant also alleges that the Dutch Government has held
him guilty of illegal entry into the Netherlands, although he had not
been convicted of such offence (see page 13 "Submissions of the
Parties" II/A/5);

whereas Article 6, paragraph 2) (Art. 6-2) of the Convention provides
that "everyone charged with a criminal offense shall be presumed
innocent until proved guilty according to law"; whereas the Applicant
was not charged, at the time concerned, with the offence of illegal
entry or any other equivalent offence but was detained pending his
deportation from the Netherlands; whereas, consequently, Article 6,
paragraph (2) (Art. 6-2) was not applicable in the circumstances of his
case;

Whereas the Applicant complains that he was detained in the aircraft
taking him to the USA and that this constituted during the flight
an interference with his private life (see page 16 "Submissions of
the Parties" II/B/1); whereas the Commission has stated above that the
right not to be extradited or deported is not as such included among
the rights and freedoms guaranteed by the Convention; whereas a
measure of extradition or deportation generally implies that the
liberty of the person to be extradited or deported is restricted during
the execution of that measure; and whereas it is also clear that
a certain interference with a person's private life may be a
consequence of such restriction of liberty; whereas the Commission is
satisfied that the restriction of the Applicant's liberty during the
flight was a lawful detention within the meaning of Article 5,
paragraph (1) (f) (Art. 5-1-f) of the Convention and that, in so far
as there was any interference with the Applicant's right to respect for
his private life as a result of that flight, such interference was
covered by Article 8, paragraph (2) (Art. 8-2) of the Convention;

Whereas the Applicant complains that on 12th and 13th September 1963,
he and his lawyer were prevented from contacting one another (see page
16 "Submissions of the Parties" II/B/1 b); whereas the Commission
considers that the attitude of the authorities in this regard could not
constitute a violation of Article 6 (Art. 6) or any other provision of
the Convention.

Now therefore the Commission

1. Rejects the Applicant's formal objection and other comments relating
to the submission of the Government's pleading on admissibility;

2. Adjourns the examination of the part of the Application relating to
the alleged violations of Article 5, paragraphs (1) and (4)
(Art. 5-1, 5-4) of the Convention during the Applicant's detention in
the Netherlands;

3. Declares the remainder of the Application to be inadmissible.
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