European Court of Human Rights

THIRD SECTION

DECISION

Application no. 34399/05
by Mindosa Armando HEINSE
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 23 September 2008 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 22 September 2005,

Having regard to the unilateral declaration submitted by the respondent Government on 16 April 2008 requesting the Court to strike the application out of the list of cases and the applicant's reply to that declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mindosa Armando Heinse, is a Dutch national who was born in October 1986. At the time the application was lodged, he was staying in a treatment centre. He was represented before the Court by Mr P. Kleijngeld, a lawyer practising in Tilburg. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 4 March 2004 a three-judge juvenile criminal-law section (meervoudige kinderstrafkamer) of the Breda Regional Court (arrondissementsrechtbank) convicted the applicant of participation in three street robberies. Having noted reports drawn up by the Child Care and Protection Board (Raad voor de Kinderbescherming) and a psychiatrist on the applicant, the Regional Court found that the applicant's mental faculties were so poorly developed that he could only be held responsible for his acts to a limited degree, and that – in his own interests and in those of society as a whole – he should be treated for his behaviour disorder in order to prevent recidivism. Having noted the gravity of the offences of which the applicant had been convicted and concluding that the safety of others and the general safety of persons and goods necessitated such a measure, the Regional Court decided to impose on him the measure of placement in an institution for juveniles (plaatsing in een inrichting voor jeugdigen).

No appeal having been lodged, that judgment became final on 9 April 2004. Consequently, on the same date the measure imposed on the applicant took effect. He was, however, not transferred to an institution for juveniles but remained in pre-placement detention in a remand home for juveniles (opvanginrichting). On 28 May 2004, the applicant was placed on a waiting list for admission to a particular institution.

On 15 December 2004 the applicant filed an objection (bezwaar) against the selection officer's tacit decision to prolong his pre-placement detention by three months. The selection officer rejected the objection on 12 January 2005. The applicant lodged an appeal against that decision with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming – “the Council”).

An objection by the applicant against a further tacit prolongation of his pre placement detention was dismissed by the selection officer on 11 February 2005. The applicant also lodged an appeal against this decision with the Appeals Board of the Council.

In the meantime, on 1 February 2005, the applicant had been admitted to the Rekken Rentray treatment centre for persons with mild mental disabilities.

On 31 March 2005, after a hearing on 14 March 2005, the Appeals Board of the Council accepted the applicant's appeals. Noting that the prolongation decisions had not been issued in writing and had been issued without having interviewed the applicant, it quashed the selection officer's decisions of 12 January and 11 February 2005 on formal but not on material grounds, and – determining the matter itself – prolonged the time-limit within which the applicant should be admitted to a treatment centre from 9 July until 7 October 2004, from 7 October 2004 until 5 January 2005, and from 5 January to 1 February 2005. It further ordered the Minister of Justice to pay the applicant compensation (tegemoetkoming) in an amount of 50 euros (EUR) in respect of each tacit prolongation decision, making a total amount of EUR 150.

B.  Relevant domestic law and practice

Minors between twelve and eighteen years old are subject to juvenile criminal law (jeugdstrafrecht). A juvenile court judge (kinderrechter) can order the placement of a minor in a custodial institution (plaatsing in een justitiële inrichting). A custodial sentence imposed on a minor is executed in a juvenile remand home (opvanginrichting).

The measure of placement in a juvenile institution (plaatsing in een inrichting voor jeugdigen) is executed in a treatment centre (behandelinrichting). According to Article 10 § 2 of the Act on Custodial Institutions for Juveniles (Beginselenwet justitiële inrichtingen – “the Act”), the notion of “treatment” is to be understood as a system of actions aimed at preventing, reducing or removing problems or disorders of a physical, mental, social or pedagogical nature that can negatively influence a juvenile's development towards maturity.

The juvenile court judge can impose this measure on a minor who has been found guilty of a serious offence, where the judge considers that the minor needs intensive aid and treatment in order to prevent recidivism. Pursuant to Article 11 § 1 of the Act, such a minor must be admitted to a juvenile institution within three months after the measure has taken effect. Until such admission, the minor concerned remains in a regular juvenile remand home. If admission proves impossible, this initial three-month period can be extended by the selection officer (selectiefunctionaris) by further periods of three months each time (Article 11 § 2 of the Act).

The measure of placement in a juvenile institution is initially imposed for a period of two years. If imposed on persons found guilty of a violent or sexual offence, it may be prolonged for one further period of two years. It can only be prolonged by a second period of two years if the juvenile concerned is suffering from a mental disorder. Accordingly, the total duration of this measure cannot exceed six years.

In a judgment given on 21 December 2007 in civil proceedings on a compensation claim arising from an unlawful act on the part of the government (onrechtmatige overheidsdaad), the Supreme Court (Hoge Raad) found that pre-placement detention lasting longer than four months was unlawful. In reaching this finding, the Supreme Court referred, inter alia, to the Court's judgments of 11 May 2004 in the cases of Morsink v. the Netherlands (no. 48865/99, §§ 26-37, 11 May 2004) and Brand v. the Netherlands (no. 49902/99, §§ 23-33, 11 May 2004).

COMPLAINT

The applicant complained that his pre-placement detention in a juvenile remand home pending admission to a treatment centre was contrary to his rights under Article 5 § 1 of the Convention in so far as it exceeded three months after the date on which the measure imposed by the Regional Court took effect.

THE LAW

The applicant complained under Article 5 § 1 of the Convention about the duration of his pre-placement detention pending his admission to a custodial clinic.

In a letter dated 16 April 2008 the Government requested the Court to strike out the application in accordance with Article 37 of the Convention on the basis of a unilateral declaration by the Government. In its relevant part, this letter reads:

“... Direct contacts between the parties ... with a view to securing a friendly settlement of the matter on the basis of [the Netherlands Supreme Court ruling of 21 December 2007] have remained unsuccessful. That being the case, the Government hereby wishes to express – by way of a unilateral declaration – its acknowledgement that the period during which the applicant was awaiting admission to an institution [for juveniles] was not in conformity with the requirements of Article 5 of the Convention.

Consequently, the Government is prepared to pay damages for every month the applicant awaited placement in an institution [for juveniles] as of the fifth month. For the fifth and sixth month ... compensation of € 225 is offered. Starting [from] the seventh month this compensation will be € 350 per month, on the understanding that the compensation will be raised [by] € 125 every three months. Taking into account the applicant's placement in an institution on 1 February 2005, the above has resulted in a total sum of € 1,975. Statutory interest will be added to the total compensation. The Government is furthermore prepared to pay the costs for legal representation in so far as they are specified and reasonable as to quantum. ...”

In a letter of 14 May 2008 the applicant informed the Court that the legal costs incurred by him in the proceedings before the Court amounted to EUR 3,323.25. From his further comments the Court understands that the applicant opposes the Government's request. On 23 June 2008, the Government accepted as reasonable the legal costs indicated by the applicant.

The Court reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. Article 37 of the Convention provides that the Court may at any stage of the proceedings strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under points (a), (b) or (c) of that Article.

Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

Article 37 § 1 in fine states:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”

In deciding whether or not it should strike the present case out of its list, the Court will have regard to the criteria emerging from its case-law (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; Meriakri v. Moldova (striking out), no. 53487/99, 1 March 2005; Van Houten v. the Netherlands (striking out), no. 25149/03, ECHR 2005-IX; and WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007).

The Court observes that in the case of Brand v. the Netherlands (cited above, § 66) it held that even a delay of six months in the admission of a person to a custodial clinic – during which time the person concerned was held in pre-placement detention – is unacceptable (under Article 5 § 1). It further notes that, on 21 December 2007, the Netherlands Supreme Court found that pre-placement detention lasting longer than four months must be regarded as unlawful under domestic law and, accordingly, entitles the detainee concerned to compensation. The Court notes that the Government's declaration complies with this ruling.

Against this background and having regard to the nature of the admission contained in the Government's declaration, considering that there is no reason to take a different approach or reach a different finding from the one set out in the above-mentioned Brand judgment, the Court accepts as adequate in the circumstances the amount of compensation proposed by the Government. Accordingly, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)). The Court is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

Accordingly, the Court considers that the application should be struck out of the list.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government's unilateral declaration;

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President