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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KOLOMPAR v. BELGIUM - 11613/85 [1992] ECHR 59 (24 September 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/59.html
Cite as: [1992] ECHR 59, (1993) 16 EHRR 197, 16 EHRR 197
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In the case of Kolompar v. Belgium*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court, as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr B. Walsh,
Mr A. Spielmann,
Mr J. De Meyer,
Mr I. Foighel,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 March and
27 August 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 49/1991/301/372. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 19 April 1991,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated in
an application (no. 11613/85) against the Kingdom of Belgium lodged
with the Commission under Article 25 (art. 25) by a Yugoslavian
national, Mr Djula Kolompar, on 10 June 1985.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Belgium recognised
the compulsory jurisdiction of the Court (Article 46) (art. 46).
The object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 5 paras. 1 and 4 (art. 5-1, art. 5-4)
of the Convention.
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr J. De Meyer, the elected judge of Belgian nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of
the Court (Rule 21 para. 3 (b)).
On 23 April 1991, in the presence of the Registrar,
the President drew by lot the names of the other seven members,
namely Mr Thór Vilhjálmsson, Mrs D. Bindschedler-Robert,
Mr J. Pinheiro Farinha, Mr B. Walsh, Mr R. Bernhardt,
Mr A. Spielmann and Mr I. Foighel (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr F. Bigi and Mr F. Matscher, substitute judges, replaced
Mrs Bindschedler-Robert and Mr Pinheiro Farinha, who had resigned and
whose successors at the Court had taken up their duties before the hearing
(Rules 2 para. 3 and 22 para. 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Belgian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Government's memorial on
24 September 1991 and the applicant's memorial, including his claims
for just satisfaction (Article 50 of the Convention) (art. 50), on
27 September and 1 October. By a letter of 10 October 1991, the
Secretary to the Commission informed the Registrar that the Delegate
would submit oral observations.
5. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg, on
23 March 1992. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Lathouwers, Legal Officer,
Ministry of Justice, Deputy Agent,
Mr P. Lemmens, advokaat, Counsel;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Mr W.A. Venema, advokaat en prokureur, Counsel.
The Court heard addresses by Mr Lemmens for the Government,
by Mr Weitzel for the Commission and by Mr Venema for the applicant,
as well as their answers to its questions. The Agent of the
Government produced various documents on the occasion of the
hearing.
AS TO THE FACTS
A. The proceedings brought against the applicant and the
extradition request
1. In Italy
6. Having been extradited from Belgium to Italy,
Mr Djula Kolompar was released from prison on 27 December 1990; he
currently resides in Amsterdam.
7. On 13 June 1980 the Florence Assize Court sentenced him in
absentia to eighteen years' imprisonment, having convicted him of,
inter alia, attempted rape and attempted murder committed on
24 December 1977.
8. By a judgment of 8 May 1981, which became final a month
later, the Florence Assize Court of Appeal, also giving judgment in
absentia, reduced the prison sentence to ten years; the accused had
been declared untraceable (irreperibile) and then to be evading
arrest (latitante).
Pursuant to a Presidential Decree of 1978, the Florence
Assize Court of Appeal and the Court of Appeal itself granted the
applicant, on 23 November 1981 and 8 March 1982, remission of
sentence amounting to a total of a little over two and a half years.
9. In 1982 Italy requested the Netherlands authorities to
extradite the applicant. This request was refused following an
unfavourable opinion from the Rotterdam District Court
(Arrondissementsrechtbank) of 14 October 1982; the Rotterdam court
took the view that the applicant's right to defend himself had not
been respected.
10. In May 1983 Italy made a similar request to Belgium, where
Mr Kolompar was then staying.
11. On 7 March 1984 the judgment of 8 May 1981 and the warrant
for his arrest as a convicted person (ordine di carcerazione di
condannato) issued by the principal public prosecutor at the
Florence Court of Appeal on 13 March 1982, together with an official
Dutch translation of those documents, were served on the applicant
by a bailiff in accordance with the Belgian Extradition Act of
15 March 1874 ("the 1874 Act") and the Belgian-Italian extradition
treaty of 15 January 1875. The bailiff's writ stated that the
applicant would be detained with a view to his extradition.
2. In Belgium
12. On 22 January 1984 Mr Kolompar had been arrested in Belgium
on suspicion of aggravated theft and attempted theft committed in
that country; the following day an Antwerp investigating judge had
remanded him in custody in respect of these charges.
The investigating judge revoked his detention order on
11 April 1984, but the applicant remained in custody in connection
with the extradition proceedings (see paragraph 11 above).
13. On 4 January 1985 the Antwerp Criminal Court sentenced him
to one year's imprisonment for the offences committed in Belgium.
This judgment was upheld by the Antwerp Court of Appeal, whose
judgment of 25 April 1985 became final a month later.
By a letter of 4 June 1985 the Minister of Justice informed
the applicant that, on account of the period that he had spent in
detention since 22 January 1984 (see paragraph 12 above), the prison
term was to be deemed to have been completed on 20 January 1985.
B. The subsequent extradition proceedings
14. Following a favourable opinion from the indictments chamber
(Kamer van Inbeschuldigingstelling) of the Antwerp Court of Appeal
on 24 April 1984, on 2 May the Belgium Minister of Justice
authorised Mr Kolompar's extradition to Italy.
1. The application for a stay of execution of
29 October 1984
15. On 29 October 1984 the applicant asked the Minister to
reconsider his decision and to stay the execution of the extradition
order in the meantime. He invoked the opinion of the Rotterdam
District Court of 14 October 1982 (see paragraph 9 above).
On 13 December 1984 he requested the Minister to confirm in
writing that he had stated during a meeting with the applicant's
lawyer on 7 December 1984 that he was prepared to grant an
application for a stay of execution of the extradition order.
16. On 17 December 1984 the Minister replied to him that the
extradition was a matter for the Italian authorities, who might
possibly withdraw their request. He advised the applicant to apply
to those authorities without delay in that connection, adding that,
if the applicant so requested, he could stay the execution of the
extradition order; the duration of such a measure could not however
exceed a reasonable time.
2. The application for a stay of execution of
2 January 1985
17. By letter of 2 January 1985 Mr Kolompar again asked the
Minister of Justice to stay the execution of the extradition
decision. In support of his request he provided statements from
various witnesses, according to which he had been in Denmark on
24 December 1977, the date of the offences for which he had been
convicted in Italy.
18. The Minister contacted the Italian authorities. He drew
their attention to the applicant's version of events and asked them
to state whether they wished to maintain their extradition request.
19. On 28 March 1985 the Director of the Rome extraditions
department replied to the above query in the affirmative. He
stressed that if there was any new evidence it could serve as the
basis for an application for retrial of the case (Article 553 of the
Italian Code of Criminal Procedure).
On 4 April 1985 the Minister sent to the applicant a copy
of this letter, notifying him that the extradition procedure would
be continued as soon as it was no longer necessary to keep him at
the disposal of the Belgian authorities for the offences committed
in Belgium (see paragraph 13 above).
20. On 21 June 1985 Mr Kolompar wrote to the Minister of
Justice to ask him to obtain from Interpol's Copenhagen office
information which he had himself unsuccessfully sought from the
Danish consulate general in Rotterdam.
As a result the Minister instructed the Antwerp public
prosecutor's office to determine the accuracy of the applicant's
claims concerning his one-time presence in Denmark (see paragraph 17
above).
A message from Interpol-Copenhagen to Interpol-Brussels of
14 August 1985 indicated that the Danish police had questioned the
applicant on 12 April 1978 when he had been in custody in Gentofte
in connection with alleged forgery, attempted theft and receiving
stolen goods. He had stated that he had entered Denmark on
10 April 1978 and that it was the first time that he had visited the
country. In June 1978 his wife had affirmed that she had herself
arrived in the country on 23 May 1978 and that her family had lived
for a long time near Rome. However, another Yugoslavian national,
probably residing in the Netherlands, had maintained in May 1978
that the couple were living in Italy at the time and that the
applicant had visited him on several occasions. A Danish police-
officer claimed to remember Mr Kolompar but could not certify that
he had seen him on 24 December 1977.
The text of the message was transmitted to the Antwerp
criminal police on 16 August 1985; on 17 September 1985 the
principal public prosecutor's office of that town sent to the
Minister of Justice a report on the information obtained from
Interpol-Copenhagen.
3. The application for release of 15 June 1985 and the
application for a stay of execution of 21 June 1985
21. In the meantime Mr Kolompar, having been advised orally
that his extradition could take place on 25 June 1985, submitted an
application for his release to the committals chamber (Raadkamer) of
the Antwerp First-Instance Court on 15 June, founded essentially on
the alleged unlawfulness of such a measure.
22. By an order of 21 June the committals chamber declared the
application inadmissible; the applicant appealed immediately,
relying on Articles 3, 5 and 6 para. 1 (art. 3, art. 5, art. 6-1)
of the Convention. In addition, he requested the Minister of
Justice, again on 21 June, to stay the execution of the extradition
order pending a final decision on his application of 15 June.
On 24 June the Minister sent by telex instructions to this effect to
the principal public prosecutor's office in Antwerp. The
applicant's lawyer was notified of this by telephone.
On 5 July 1985 the indictments chamber of the Antwerp Court
of Appeal confirmed the order of 21 June 1985 on the ground, inter
alia, that it was not empowered to order the applicant's release.
It noted that the fourth subsection of section 5 of the 1874 Act,
which provided for the possibility of applying to the investigating
authorities for release, ceased to apply once the detainee had been
placed at the disposal of the Government with a view to extradition.
It added that the provisions of the Convention cited by Mr Kolompar
did not in themselves confer on it jurisdiction to rule on the
matter.
23. On 8 October 1985 the Court of Cassation dismissed the
applicant's appeal filed on 8 July. It found that no grounds had
been validly and usefully submitted and took the view that the
indictments chamber had complied with the essential procedural
requirements or the formalities whose disregard entailed nullity and
that its decision was lawful.
4. The application of 17 September 1985 for an order
prohibiting the extradition and for the applicant's
release
24. On 17 September 1985 the applicant filed an urgent
application with the President of the Brussels First-Instance Court
seeking an order prohibiting his extradition, which, he contended,
would be contrary to Articles 6 para. 1, 3 and 14 (art. 6-1, art. 3,
art. 14) of the Convention on account, inter alia, of the
incompatibility of the proceedings conducted against him in Italy
with the Convention; he requested further his immediate release on
the ground that his detention was also unlawful for the reasons
which his lawyer had given before the indictments chamber of the
Antwerp Court of Appeal on 5 July 1985 (see paragraph 22 above).
By a letter of 4 November 1985 the Minister of Justice drew
the attention of the Antwerp principal public prosecutor's office to
the desirability of staying the execution of the extradition order
until a final decision had been given on Mr Kolompar's application.
The Belgian State filed its submissions on
24 December 1985; Mr Kolompar submitted his at a hearing held on
19 March 1986.
On 21 March the President of the Brussels First-Instance
Court found that it was not necessary to make an urgent ruling. He
noted that under the first paragraph of Article 584 of the Judicial
Code he was empowered to give "a provisional ruling where he
[recognised] that there was urgency, in all matters except those
which are excluded by law from the competence of the courts" and
that, according to academic writers and the case-law, this
jurisdiction extended to cases of unlawful acts by the authorities
(onrechtmatige overheidsdaad). In the present case, however, the
contested detention did not represent such an act because it had
been lawfully and properly ordered in the context of extradition
proceedings in accordance with the Act of 15 March 1874 and the
Belgian-Italian extradition treaty of 15 January 1875. As far as
the extradition was concerned, the President considered that it was
not for him to determine whether the applicant's conviction by the
Florence Assize Court had infringed the Convention. He added that
the applicant could, as the Director of the Rome extraditions
department had pointed out (see paragraph 19 above), file an
application for a retrial if the conditions set out in Article 553
of the Italian Code of Criminal Procedure were satisfied.
25. After the Belgian State had served this order on
Mr Kolompar, the latter filed an appeal against it by a document
lodged with the registry of the Brussels Court of Appeal on
12 June 1986. By a letter registered on 19 June he requested that
the case be heard at a later date.
The Belgian State filed its submissions on
19 November 1986, but the proceedings remained pending. The Belgian
lawyer appointed to represent the applicant had withdrawn his
services pending payment of an advance. His client claimed that he
was not in a position to pay, but he had not informed the
authorities of this and had not requested legal aid.
5. The applicant's extradition (25 September 1987)
26. By a letter from his lawyer, dated 13 September 1987, the
applicant informed the Minister of Justice that he no longer opposed
his extradition in view of the length of the proceedings instituted
both at national and international level, and that he waived his
right to rely on the undertaking not to hand him over to Italy
pending the outcome of the appeals lodged in Belgium.
Twelve days later Mr Kolompar was extradited to Italy. He
was released from prison there on 27 December 1990 under an amnesty.
PROCEEDINGS BEFORE THE COMMISSION
27. Mr Kolompar lodged his application with the Commission
(application no. 11613/85) on 10 June 1985. He alleged violations
of Article 5 paras. 1, 2 and 4 (art. 5-1, art. 5-2, art. 5-4) of the
Convention by Belgium and of Articles 3 and 6 para. 1 (art. 3,
art. 6-1) by Italy.
28. On 16 May 1990 the Commission declared the complaints based
on Article 5 paras. 1 and 4 (art. 5-1, art. 5-4) admissible; it
found the remainder of the application inadmissible and in
particular the complaints concerning Italy.
In its report of 26 February 1991 (made under Article 31 of
the Convention) (art. 31), it expressed the opinion, by eight votes
to three, that there had been a breach of Article 5 para. 1
(art. 5-1) and, by ten votes to one, of Article 5 para. 4
(art. 5-4). The full text of its opinion and of the partly
dissenting opinion contained in the report is reproduced as an annex
to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume
235-C of Series A of the Publications of the Court), but a copy of
the Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
29. At the hearing on 23 March 1992 the Agent of the Government
confirmed the submissions in his memorial, inviting the Court to
hold that:
"- the complaint alleging a violation of Article 5 para. 1
(art. 5-1) is inadmissible; or at least that there has been
no violation of that provision;
- there has been no violation of Article 5 para. 4
(art. 5-4) of the Convention."
The applicant's lawyer, for his part, asked the Court to
find a breach of those provisions and to award his client the
compensation claimed.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 (art. 5-1)
30. Mr Kolompar maintained that his deprivation of liberty had
not been justified under Article 5 para. 1 (art. 5-1), according to
which:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before
the competent legal authority on reasonable
suspicion of having committed an offence or when
it is reasonably considered necessary to prevent
his committing an offence or fleeing after having
done so;
...
(f) the lawful arrest or detention ... of a person
against whom action is being taken with a view to
... extradition."
A. The objection that the applicant failed to exhaust the
domestic remedies
31. Before the Commission the Government lodged an objection to
the complaint on the ground that the applicant had failed to exhaust
his domestic remedies. Their objection was divided into two limbs,
but in their memorial before the Court (paragraph 5, first
sub-paragraph) they stated that they no longer wished to invoke the
first of those limbs.
Only the second therefore requires a decision here (see,
inter alia, the Moreira de Azevedo v. Portugal judgment of
23 October 1990, Series A no. 189, p. 15, para. 60). The Court has
jurisdiction to examine it, although the Delegate of the Commission
argued to the contrary (see, as the most recent authority, the
Tomasi v. France judgment of 27 August 1992, Series A no. 241-A,
p. 33, para. 77).
32. The Government criticise the applicant for having failed to
take to their conclusion the urgent application proceedings
instituted by him (see paragraphs 24-25 above). However, as the
defendant in those proceedings, the Belgian State had contested the
jurisdiction of the President of the Brussels First-Instance Court
(above-mentioned memorial, paragraph 5, fourth sub-paragraph); they
cannot put to the Court arguments which are inconsistent with the
position they adopted before the national courts (see, mutatis
mutandis, the Pine Valley Developments Ltd and Others v. Ireland
judgment of 29 November 1991, Series A no. 222, pp. 21-22,
para. 47).
Accordingly, the objection must be dismissed.
B. Merits of the complaint
33. Mr Kolompar considered that his deprivation of liberty was
unlawful in two respects: his detention with a view to extradition
had served, unlawfully, to ensure that the sentence which he was
eventually given by the Belgian courts was executed; in addition,
the extradition proceedings had not been conducted at a reasonable
pace.
The Government contested these claims; the Commission
accepted them.
1. The lawfulness of the detention as such
34. According to the applicant the detention lasted from
22 May 1984 - four months after 22 January 1984, the date of his
arrest - until 25 September 1987. He reasoned that if, in
conformity with the statutory provisions and directives in force in
Belgium, he had been conditionally released after having completed a
third of his sentence, only about four months of that sentence would
have been served.
35. The Government contended that Belgian law did not provide
that a foreigner who had been convicted in Belgium and who was the
subject of extradition proceedings must be released after completing
a third of his sentence. A circular from the Minister of Justice of
23 April 1982 stated merely that the director of the prison, acting
on his own initiative, was to make a proposal suggesting a
prisoner's provisional release once one third or two thirds, as the
case may be, of his sentence had been completed; it in no way
derogated from the rules according to which the decision in this
matter fell to the Minister, acting on the advice of the prosecuting
authority.
The Government maintained further that the contested
detention had been covered at first, from 22 January to
11 April 1984, by sub-paragraph (c) of Article 5 para. 1
(art. 5-1-c) of the Convention and then by sub-paragraph (f)
(art. 5-1-f); the calculation of the term of one year's
imprisonment, subsequently imposed by the Antwerp Court of Appeal,
as part of the period spent in the detention on remand and detention
pending extradition was a theoretical exercise and changed nothing.
36. The Court notes that in the case before it the detention on
remand and the detention pending extradition partly overlapped.
Mr Kolompar was arrested on 22 January 1984 (see paragraph 12 above)
and the arrest warrant issued by the principal public prosecutor of
the Florence Court of Appeal was served on him on 7 March (see
paragraph 11 above). On 11 April 1984 the Antwerp investigating
judge revoked the order remanding him in custody (see paragraph 12
above). From that date the applicant was detained solely in
connection with the extradition proceedings.
However, when the applicant's conviction in Belgium became
final on 25 May 1985, the Minister of Justice found that the
applicant had already served the prison term which he had received
(see paragraph 13 above). Like the Commission, the Court therefore
considers that the detention in respect of the offences committed in
Belgium lasted from 22 January 1984 to 20 January 1985 and satisfied
the requirements of sub-paragraphs (a) and (c) of Article 5 para. 1
(art. 5-1-a, art. 5-1-c). The detention with a view to extradition
was in principle justified under sub-paragraph (f) (art. 5-1-f),
but as it lasted for over two years and eight months (21 January 1985 to
25 September 1987) it is necessary to determine whether it remained
compatible with that provision to the end.
2. The length of the contested detention
37. Mr Kolompar conceded that the proceedings conducted in the
committals chamber, the indictments chamber and the Court of
Cassation (see paragraphs 21-23 above) had progressed at the
required speed. The same was not true, in his opinion, of the
urgent application proceedings. The applicant criticised the
Belgian State for waiting respectively three months and five months
before filing its submissions at first instance and on appeal. He
maintained in addition that he had not sought legal aid (see
paragraph 25 above) because there had been absolutely no guarantee
that he would have been successful.
38. The Government argued that the time taken to file the
submissions in question was not so great that it constituted a
violation of human rights on their part. Moreover, the applicant
had not availed himself of the possibility of compelling the State
to lodge its submissions within a time-limit fixed by a judge
(Article 751 of the Judicial Code); he had therefore to be deemed to
have consented to an extension of the time-limit fixed by statute
(last sub-paragraph of Article 748 of the same Code). By requesting
the Court of Appeal to postpone the hearing of the case (see
paragraph 25 above), he had in any event shown that he was not the
least interested in the speedy conduct of the proceedings.
Furthermore, nothing had prevented the applicant from requesting
free legal assistance (Article 455 of the Judicial Code).
Finally, it had been at Mr Kolompar's express request that
the Minister of Justice had agreed to stay the execution of the
extradition order. The Government had therefore satisfied to the
full the applicant's wishes; indeed they had placed themselves in a
difficult position in relation to Italy. Their conciliatory
approach explained why they had not attempted to speed up the
proceedings in the Court of Appeal against the applicant's will.
The latter had expected that the period spent in detention pending
extradition would be deducted from his prison sentence in Italy; up
to September 1987 he had preferred to remain in Belgium rather than
be handed over to the Italian authorities.
39. In the Commission's opinion, only the urgent application
proceedings were open to criticism. Notwithstanding the applicant's
conduct, there had been a problem of inactivity on the part of the
State. The limitations on the right guaranteed under Article 5
(art. 5) were to be interpreted strictly. Accordingly, the State
should have taken positive measures to expedite the proceedings and
thereby shorten Mr Kolompar's detention. As it had not done so, it
had not fully satisfied the requirements of Article 5 para. 1 (f)
(art. 5-1-f).
40. The Court notes that the period spent in detention pending
extradition was unusually long (see paragraph 36 in fine above).
However, the extradition proceedings properly so-called were
completed by 2 May 1984 (see paragraph 14 above), less than one
month after the decision to revoke the order remanding the applicant
in custody in respect of his alleged offences in Belgium, at a time
when he had not yet been tried in the Antwerp Criminal Court (see
paragraph 13 above). The detention was continued as a result of the
successive applications for a stay of execution or for release which
Mr Kolompar lodged on 29 October 1984, 2 January 1985, 15 June 1985,
21 June 1985 and 17 September 1985 (see paragraphs 15-25 above), as
well as the time which the Belgian authorities required to verify
the applicant's alibi in Denmark (see paragraphs 17 and 20 above).
41. The authorities and courts before which the case came prior
to the beginning, on 17 September 1985, of the urgent application
proceedings gave their decisions within a normal time (see
paragraphs 15-23 above). To that extent it appears beyond doubt
that the requirements of Article 5 para. 1 (f) (art. 5-1-f) were
complied with.
42. For the subsequent period (see paragraphs 24-26 above), the
Court recognises the force of the Government's arguments based on
Articles 751 and 748, last sub-paragraph, of the Belgian Judicial
Code (see paragraph 38 above). It notes in addition that, at first
instance, Mr Kolompar waited nearly three months before replying to
the submissions of the Belgian State (24 December 1985 -
19 March 1986); then, on appeal, he requested that the hearing of
the case be postponed and failed to notify the authorities that he
was unable to pay a lawyer.
His Netherlands lawyer, when questioned by the Court on
these last two points at the hearing on 23 March 1992, stated merely
that the request for a postponement had been made on the initiative
of a Belgian colleague, who had represented the applicant at the
time and that it had not been possible under the Judicial Code in
this case to appoint a lawyer to act for him free of charge,
although this last affirmation was denied by the Government (see
paragraph 38 above).
Whatever the case may be, the Belgian State cannot be held
responsible for the delays to which the applicant's conduct gave
rise. The latter cannot validly complain of a situation which he
largely created.
43. The Court accordingly concludes that there has been no
violation of Article 5 para. 1 (art. 5-1).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
44. According to Mr Kolompar, neither an appeal to the Council
of State, nor the proceedings conducted first before the Antwerp
investigating organs and then in the Court of Cassation, nor yet the
urgent application proceedings in the Brussels First-Instance Court
and Court of Appeal, afforded the guarantees laid down in
Article 5 para. 4 (art. 5-4), which is worded as follows:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not
lawful."
The Commission subscribed to this view, whereas the Government
contested it.
45. The mere fact that the Court has found no breach of the
requirements of paragraph 1 of Article 5 (art. 5-1) does not mean
that it is dispensed from carrying out a review of compliance with
paragraph 4 (art. 5-4); the two paragraphs are separate provisions
and observance of the former does not necessarily entail observance
of the latter (see for example the De Wilde, Ooms and Versyp v.
Belgium judgment of 18 June 1971, Series A no. 12, pp. 39-40,
para. 73). Moreover, the Court has consistently stressed the
importance of Article 5 para. 4 (art. 5-4), in particular in
extradition cases (see the Sanchez-Reisse v. Switzerland judgment of
21 October 1986, Series A no. 107, pp. 16-22, paras. 42-61).
46. It should nevertheless be noted that although, in the
urgent application proceedings, the applicant contested the
lawfulness - which is however not in doubt (see paragraph 41
above) - of his initial detention with a view to extradition,
he did not seek to argue, even in the alternative, that the passing of
time had rendered his detention unlawful; the Government rightly drew
attention to this.
In addition, the extradition request, which constituted the
basis for the applicant's custody after 20 January 1985, was not
issued in connection with court proceedings which were still
pending; it was intended to secure the execution of a sentence
imposed in Italy by a decision having final effect. In so far as
the length of the deprivation of liberty none the less gives rise to
a problem under paragraph 4 of Article 5 (art. 5-4) ("speedily"), it
is in this instance a problem which the Court has already dealt with
in relation to paragraph 1 (art. 5-1), in having had regard inter alia
to the applicant's dilatory conduct. It follows that, for the reasons
set out above in relation to paragraph 1 (art. 5-1) (see paragraph 42
above), the Court cannot find a violation of Article 5 para. 4
(art. 5-4) in this instance.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been no violation of paragraphs 1 and
4 of Article 5 (art. 5-1, art. 5-4).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
24 September 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar