# أحكام المحاكم الأجنبية Decisions of Foreign Courts > أحكام المحكمة الأوروبية لحقوق الإنسان > Decisions of The European Court of Human Rights >  H.A. v. AUSTRIA, H.I. AND V.B.F. v. AUSTRIA - 1983/63 [1966] ECHR 1 (09 February 196

## هيثم الفقى

[align=left] 
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, 1963 :Frown: 1) 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]

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## هيثم الفقى

[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 l&#195;©gales") nor the
wording of Article 5, paragraph (1)(f) ("action ... with a view to
deportation or extradition", une proc&#195;©dure 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
"d&#195;©tournement 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 d&#195;©tournement de pouvoir and
stated inter alia:

"An action based on alleged d&#195;©tournement 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 d&#195;©tournement de pouvoir would also be successful in such cases.
It is true that the question of establishing the "motifs d&#195;©terminants"
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 d&#195;©tournement 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 "d&#195;©tournement 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]

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## هيثم الفقى

[align=left] 
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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