CASE OF KOLOMPAR v. BELGIUM
Preliminary objection rejected (non-exhaustion);No violation of Art. 5-1;No violation of Art. 5-4
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. 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. 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. 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. 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. 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. 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. 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.