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H.A. v. AUSTRIA, H.I. AND V.B.F. v. AUSTRIA - 1983/63 [1966] ECHR 1 (09 February 1966)
THE FACTSWhereas the facts as presented by the Applicant may be summarised asfollows:The Applicant is an American citizen, born in 1929 and seems to be atpresent detained in prison in the USA. He is represented before theCommission by Mr. S, a lawyer practising in Amsterdam.The original Application was lodged on 13th September 1963 andconcerned the Applicant's detention in the Netherlands. On 9th March1964, certain additional complaints were lodged, relating to hisdeportation from the Netherlands.The Applicant was first arrested in Amsterdam in ... 1960 on suspicionof illegal possession of narcotics. In ... 1961, the District Court(Arrondissementsrechtbank) in Amsterdam convicted him of this offenceand sentenced him to two years' imprisonment.In ... 1960, the US Bureau of Narcotics informed the Netherlandsauthorities that the Applicant was under suspicion of similar offensesin the USA and that the American authorities were anxious to see himreturn to the USA.By letter of ... 1961, the US Embassy in The Hague informed theNetherlands authorities that the Applicant was charged in the USA withthe smuggling of narcotics, other narcotics violations and passportfraud and that the US authorities were anxious to secure his return tothe USA following his release from imprisonment in the Netherlands. TheUS authorities did not intend, however, to demand his extradition sincethe offenses with which the Applicant was charged in the USA did notfall within the categories of offenses covered by the extraditionagreements in force. The Embassy stated that the Applicant's passporthad been restricted for return to the USA only and suggested that theNetherlands Government might therefore wish to examine the possibilityof deporting the Applicant directly to the USA after his release. Itwas further stated that the US Government would be pleased if suchaction were possible and that funds for his passage to the USA wouldprobably be available.After serving his sentence, the Applicant was detained, as from ..November 1962, by the Dutch Aliens' Police. He states that he was toldthat he was being detained pending the decision of the authoritieswhether he should be declared "an undesired alien". He was detainedat a Rotterdam police station until ... December 1962 and subsequentlyin a house of detention (Huis van Bewaring) in Rotterdam.On .. February 1963 he was declared to be an "undesired alien" and hestates that he was then notified that he was being held in detentionpending his deportation from the Netherlands.The Applicant then took two lines of action before the Netherlandscourts:1. He submitted a petition to the District Court(Arrondissementsrechtbank) in Rotterdam, alleging that his detentionwas illegal and that, under Article 5, paragraph (4), of theConvention, he was entitled to have the lawfulness of his detentiondecided by a court. He also invoked the Aliens Act of 1918 accordingto which an "interned" alien was entitled to obtain a court decisionas to the lawfulness of the measure by which he was interned; althoughnot being an interned alien within the meaning of that Act, heconsidered that the provision referred to could be applied to his caseby way of analogy.On .. June, 1963, the District Court dismissed his complaint, statingthat neither Article 5, paragraph (4), of the Convention nor anydomestic legal provision gave the Court competence to examine thelawfulness of his detention.He then lodged an appeal (beroep in cassatie) to the Supreme Court(Hoge Raad) which, on 13th September 1963, declared the appealinadmissible. In its decision, the Supreme Court stated that theApplicant's appeal had been lodged according to rules laid down in theCode of Criminal Procedure; that, however, the decision appealedagainst did not concern a criminal matter and that, consequently, anappeal submitted according to these rules could not be admitted; that,moreover, it was not necessary to decide whether an appeal had beenpossible in the present case since the Applicant had, in any event, notcomplied with the provisions in the Code of Civil Procedure whenlodging his appeal.2. In regard to his deportation, the Applicant instituted proceedingsagainst the Minister of Justice and the Netherlands State before theDistrict Court (Arrondissementsrechtbank) in The Hague. He applied, inparticular, for a court order that he should not be deported from theNetherlands. By decision of .. June, 1963, the District Court declaredhis claim against the Minister of Justice inadmissible and rejected hisclaim against the State. He appealed but his appeal was rejected, on.. July, 1963, by the Court of Appeal (Gerechtshof) in The Hague andhis further appeal was also rejected on 13th September, 1963 by theSupreme Court.Immediately after these two negative decisions had been given by theSupreme Court, the Applicant was transported, on 13th September 1963,in an aeroplane to New York where he was immediately arrested by theUS authorities.Concerning the facts relating to the Applicant's transfer to the USAhis lawyer has submitted the following detailed information.A. The Applicant's own experiences12th September, 1963 - The Applicant wrote a letter to his lawyer andasked for permission to send it as an express letter. The letter wasaccepted by the authorities and it was promised that it would be sentby express.13th September, 1963 - At about 10.30 hours the Applicant was told tomake himself ready to be transferred to the Main Bureau of theRotterdam Police.At the exit from the house of detention he was informed by members ofthe Aliens' Police of the decision of the Supreme Court given on thesame day, and he was also told that he would be taken to the airportof Schiphol and from there be transported to the USA. He then wantedto telephone his lawyer but this was refused.Soon after 10.30 hrs. the members of the Aliens' Police took theApplicant in a car and drove him slowly to the airport, where theyarrived at about 13.00 hrs. The aeroplane bound for New York was toleave about 13.30 hrs.A short while before his departure, a member of the Aliens' Policetold the Applicant that he had received a message from his lawyer- by way of the Ministry of Justice and the airport, authorities -explaining that he was unable to come to the airport since he wasengaged in submitting a complaint to the Commission of Human Rights.The Applicant was forced to board the aeroplane where he had to sitbetween two members of the Aliens' Police. They told him that thetransport was taking place in complete secrecy so that the US policewould not meet him and that this was done in order to avoid anyappearance of extradition.Nevertheless, eighteen US officials were at the airport to receivethe Applicant. Three of them boarded the aeroplane, asking: "Who is Mr.X?". One of the members of the Dutch Aliens' Police pointed to Mr. Xwho was apprehended and taken away by the US officials.B. The Applicant's lawyer's experience13th September, 1963 - At about 10.15 hrs. the Applicant's lawyerwas informed of the decision of the Supreme Court and he immediatelywent to Rotterdam to see the Applicant and discuss the situationwith him. Shortly before 11.00 hrs., he arrived at the house ofdetention, where he was told that the Applicant was absent, probablyat the Main Bureau of the Rotterdam Police. He instructed his officeto find out about the Applicant's whereabouts but he sent no messageto the Applicant; the message, which the Applicant received at theairport, was consequently not sent by him.In the course of the day the lawyer's office telephoned repeatedlyto the house of detention, the Main Bureau of the Rotterdam Police,the Aliens' Police and the Ministry of Justice but could not receiveany information about the Applicant's whereabouts.In the evening the lawyer managed to obtain from New York theinformation that the Applicant had arrived there and was under arrest.14th September, 1963 - In the morning the lawyer received a letterfrom the Ministry of Justice, informing him that his client had beentransported to the USA. He also received the letter, written by theApplicant on 12th September, 1963 (see under A.). The letter wasstamped in Rotterdam on 13th September at 18.00 hrs. On the envelope,Wallace had written "Express". This word, however, had been deletedby someone other than the Applicant and a stamp had been put oncovering this part of the envelope.C. The applicant's lawyer conclusionsThe lawyer points out the following circumstances concerning theevents on 12th and 13th September, 19631) Everything was performed in complete secrecy. Even the Applicanthimself was surprised and did not get time to change his clothes beforehe was taken to the airport.(2) Any contact between the Applicant and his lawyer was refused orfrustrated.(3) Shortly before his departure from the airport, the Applicant wasgiven the false information that his lawyer was aware of the situationbut could not come to the airport.The lawyer states that secrecy was observed in order to avoid anyappearance of extradition; it would not seem, however, that anyserious attempt was made to keep the transport secret from the USauthorities. The secrecy was, in fact, only a fiction.This could also explain, in the lawyer's view, why no contact wasallowed between him and his client. The authorities would otherwisehave been exposed to the risk that the Applicant's lawyer might requestguarantees that the US authorities would not be informed or informationgiven about possible contacts between the Netherlands and the USauthorities. It would also have been possible that the Applicant'slawyer might have proposed that the Applicant should be permitted toreturn by ship to a US port of his own choice or that an Applicationwith the Commission of Human Rights could have been lodged in time.The false information given to the Applicant at the airport wasapparently meant to prevent him from requesting a conversation with hislawyer or even from making physical resistance when being taken onboard the aeroplane.Among the documents submitted by the Applicant's lawyer, there isan expert report, dated ... 1963, in which Professor A of theUniversity of Leyden gives, for the information of the Minister ofJustice, his opinion on the legality of the Applicant's possibletransfer to the USA. Professor A considers that such a transfer againstthe Applicant's will would be legal considering that there would be noother way of sending him out of the country, that he was not entitledto asylum and, further, that he had entered the country illegally. TheGovernment ought, however, according to A, to avoid any measures whichwould make his transfer to the USA appear as an extradition de facto.Nevertheless, it would seem necessary to inform the US authorities, atleast for "technical reasons".The Applicant's lawyer criticises this last statement and considersapparently that no such contact with the US authorities would have beenrequired.In his original Application submitted on 13th September 1963, as wellas in his additional complaint of 9th March 1964, the Applicant allegedviolations of Articles 1, 3, 5, 6, 8, 13, 14, 17 and 18 of theConvention and requested compensation; in the original Application heclaimed a global sum of 100,000 guilders and a monthly payment of10,000 guilders, as from 13th September 1963, whereas in his additionalcomplaint he requested 10,000 guilders a month, as from 13th September,1963 until he was again at liberty.The particular allegations made by the Applicant against theNetherlands Government are set out below (Submissions of the Parties,pages 8 - 18).Proceedings before the CommissionWhereas the proceedings before the Commission to date may be summarisedas follows:On 26th March, 1965, a group of three members of the Commission madea preliminary examination as to the admissibility of the Application,in accordance with Rule 45, paragraph 1, of the Commission's Rulesof Procedure and the group reported unanimously that the Applicationappeared to be admissible. Consequently, the President of theCommission, acting in accordance with Rule 45, paragraph 2, of theRules of Procedure, gave notice of the Application to the NetherlandsGovernment and invited it to submit to the Commission its observationsin writing on the admissibility.On 4th August, 1965, the Netherlands Permanent Representative atthe Council of Europe submitted the Government's observationsdated 2nd August, 1965. A copy of these observations was sent to theApplicant's lawyer who was invited to submit his observations in reply.The Applicant's lawyer submitted his reply in two pleadings dated 25thand 28th October, 1965. Copies of these pleadings have been sent tothe Government for information.Submissions of the PartiesWhereas the submissions of the Parties may be summarised as follows:I. On procedural questions(a) "In his letters of 25th and 28th October, 1965, the Applicant'slawyer submitted that the document dated 2nd August, 1965 could notbe accepted as being the observations of the Netherlands Government.This document had only been signed by Mr. B, a barrister at the SupremeCourt and deputy State Legal Adviser (plaatsvervangend Landsadvocaat),and it had not been shown that Mr. B was the representative of theGovernment within the meaning of Rules 36, paragraph 1, and 48,paragraph 1, of the Rules of Procedure. It was not sufficient that thedocument had been transmitted by the Netherlands PermanentRepresentative at the Council of Europe, since he had not signed theobservations and Rule 48, paragraph 1, requires signature. TheApplicant's lawyer therefore requested that the Commission shoulddecide not to take notice of the document concerned.[/align]