European Court of Human Rights

THIRD SECTION

DECISION

Application no. 9028/05
by C.A.H. ROMPA
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 1 July 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 1 March 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the unilateral declaration submitted by the respondent Government on 15 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 C.A.H. Rompa, is a Dutch national who was born in 1952 and is currently living in a custodial clinic in Utrecht. At the time the application was lodged, he was detained in Vught. He is represented before the Court by Ms H.M.S. Cremers, a lawyer practising in Berlicum. The Dutch Government (“the Government”) are 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.

In a judgment of 15 October 2003, the ‘s-Hertogenbosch Regional Court (arrondissementsrechtbank) found that the applicant could not be held criminally responsible for the offences with which he was charged and issued an order for his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege – “TBS order”). It further ruled that the applicant was to serve an eight-month prison sentence which had been imposed conditionally on 22 December 2000 in another set of criminal proceedings. Since no appeal was lodged, the ruling of 15 October 2003 became final on 30 October 2003.

The applicant’s TBS order took effect on 19 December 2003. However, the applicant was not transferred to a custodial clinic, as there were no places available. He therefore remained in pre-placement detention in the Vught ordinary remand centre (huis van bewaring).

On 16 June 2004, the Minister of Justice – no place having become available in a custodial clinic – prolonged the six-month period of pre placement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden – “the Act”) by three months, namely from 16 June to 13 September 2004. On 17 June 2004, the applicant lodged an appeal against this 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”).

On 26 August 2004, the Minister prolonged the applicant’s pre placement detention by a further period of three months, that is, from 14 September until 12 December 2004. On 30 August 2004, the applicant lodged an appeal against this decision with the Appeals Board of the Council.

In its decision of 17 November 2004, the Appeals Board accepted the applicant’s appeal of 30 August 2004. Having noted that on 10 November 2004 the Court’s judgment in the case of Brand v. the Netherlands, (no. 49902/99, 11 May 2004) had become final, and in view of the Court’s findings in that judgment, the Appeals Board concluded that the Minister’s decision of 26 August 2004 was unlawful. As the parties had not made any submissions as to the question of compensation (tegemoetkoming), the Appeals Board reserved its decision on this point and invited the parties to submit their views on this matter.

On 24 November 2004, the Minister decided that the applicant was to be admitted to the Rekken custodial clinic as soon as practically possible. The applicant filed an objection (bezwaar) against this decision, submitting that he preferred to be admitted to a custodial clinic in Venray, Nijmegen or Eindhoven as this would entail a shorter travel distance for visitors.

In their respective letters of 17 January 2005 and 16 February 2005, the applicant and the Minister informed the Appeals Board of, inter alia, their position on the compensation to be awarded on the basis of the Appeal Board’s decision of 17 November 2004.

In its decision of 4 May 2005, the Appeals Board held that the applicant was entitled to compensation in an amount of 350 euros (EUR) for each month of pre placement detention as from the day on which the detention exceeded six months and until the day of admission to a custodial clinic and, on the understanding that this amount would be increased by EUR 125 per month after the expiry of a three-month period of continuous pre-placement detention.

After the applicant had been admitted to a Utrecht custodial clinic on 30 November 2005, he was paid compensation amounting to EUR 13,025 for a total period of nineteen months spent in pre-placement detention, calculated from 17 June 2004 – when he had already spent six months in pre-placement detention – to 30 November 2005.

B.  Relevant domestic law and practice

A description of the relevant domestic law and practice at the material time is set out in the Court’s judgment 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).

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 above judgments in the cases of Morsink and Brand.

COMPLAINT

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.

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 15 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 a custodial clinic was not in conformity with the requirements of Article 5 of the Convention.

Consequently, the Government is prepared to pay the applicant – beyond and above the compensation he already received for the period he spent in detention after six months – a total amount of € 450 for the fifth and sixth month in detention exclusive of statutory interest. 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 his letter of 19 May 2008, the applicant informed the Court that he had been granted free legal aid under the Netherlands legal-aid scheme and, consequently, had not incurred any legal costs or expenses in the proceedings before the Court. He further made submissions on the facts and merits of the application from which the Court understands that he opposes the Government’s request.

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, 29 September 2005; and WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007).

The Court recalls 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 cannot be regarded as acceptable (under Article 5 § 1). On the basis of this conclusion, the Appeals Board found the applicant’s pre placement detention in excess of six months unlawful and granted him compensation in so far as his pre-placement detention had lasted longer than six months. The Court further notes that, pursuant to a subsequent ruling of the Netherlands Supreme Court, pre-placement detention lasting longer than four months must be regarded as unlawful under domestic law and entitles the detainee concerned to compensation, and 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, as well as the amount of compensation proposed, which it accepts as adequate in the circumstances, 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 to the case of Article 29 § 3 of the Convention should be discontinued and that it 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