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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: 16 EHRR 197, (1993) 16 EHRR 197, [1992] ECHR 59

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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