THIRD
SECTION
CASE OF
VAN VELDEN v. THE NETHERLANDS
(Application
no. 30666/08)
JUDGMENT
STRASBOURG
19 July
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of van Velden v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos,
judges,
and
Santiago Quesada,
Section
Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30666/08) against the Kingdom
of the Netherlands lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Netherlands national, Mr
Robertus Gemma Maria van Velden (“the applicant”), on 20
June 2008.
The
applicant was represented by Mr W.H. van Zundert, a lawyer practising
in Rotterdam. The Netherlands Government (“the Government”)
were represented by their Agent, Mr R.A.A. Böcker, and Deputy
Agent, Ms L. Egmond, of the Ministry for Foreign Affairs.
The
applicant alleged failures by the competent domestic court to follow
domestic procedure when extending an order for his detention on
remand.
On
11 March 2010 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 3, as in force at the time).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1948 and lives in Rotterdam.
On
14 November 2007 the applicant was caught in the act of trying to
defraud a bank by withdrawing a sum of money from someone else's bank
account using a forged identity document. He was arrested and placed
in police custody (inverzekeringstelling) for three days.
On
16 November 2007 an investigating judge (rechter-commissaris)
placed the applicant in initial detention on remand
(inbewaringstelling) for a term of fourteen days.
On
28 November 2007 the Regional Court (rechtbank) of The Hague,
following a hearing in camera, dismissed the applicant's
request for suspension (schorsing) of his detention on remand
(voorlopige hechtenis) and ordered the applicant's further
detention on remand (gevangenhouding) for a further ninety
days. The applicant was at that time detained in the remand centre
(huis van bewaring) of The Hague (north wing of Scheveningen
prison).
On
5 December 2007 the applicant's counsel lodged a single appeal
against both the refusal to suspend the applicant's detention on
remand and the order for the applicant's further detention on remand.
On
20 December 2007 the Court of Appeal (gerechtshof) of The
Hague rejected the appeal under both heads as out of time.
On
14 January 2008 the unit manager of the north wing of Scheveningen
Prison replied to a query from the applicant's counsel in the
following terms:
“Dear Mr Van Zundert,
We have received your letter concerning the Regional
Court's decision in good order.
In response to your request, I wish to inform you that
the Regional Court took the decision in question on 28-11-2007. On
29-11-07 the document was posted from the Regional Court, on
30-11-2007 we received the document in the late Friday afternoon
post, and on 03-12-07 the document was delivered to the prison
inmates administration in the afternoon, and on 04-12-07 the document
was handed to Mr Van Velden. (see the copy of the official
delivery record (akte van uitreiking)) ...”
It
appears that the Regional Court's decision refusing to order the
suspension of the applicant's detention on remand was served on the
applicant in writing on Tuesday 4 December 2007 at 3.40 p.m. A
copy of the official delivery record was submitted by the applicant,
annexed to the application.
After
the case was communicated, the respondent Government submitted a copy
of an official delivery record showing that the Regional Court's
order for the applicant's further detention on remand was served on
the applicant on 29 November 2007 at 11.39 a.m. The document bears
the applicant's signature acknowledging receipt.
The
Government have also submitted a copy of a written notice of appeal,
which is in the following terms (emphasis in the original):
“Regional Court of The Hague
Legal remedy notice (Akte rechtsmiddel)
...
On 5 December 2007 there appeared at the Registry
of this Regional Court
W.H. van Zundert
Advocate practising in Rotterdam
who declared that he had been specifically empowered by
the person named hereafter to make the following statement, and
stated, in the name of
name van
Velden
first names Robertus
Gemma Maria
...
that he appealed against the decision and against the
rejection of his request for suspension taken by the Regional Court
in camera on 28 November 2007.”
The
document is signed by Mr van Zundert and by the registrar of the
Regional Court.
It
appears from the Government's submissions that the applicant was
sentenced to a term of imprisonment from which the time which he had
spent in detention on remand was deducted in its entirety (Article 27
of the Criminal Code (Wetboek van Strafrecht), see paragraph
18 below). The applicant does not deny this.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
The
Code of Criminal procedure (Wetboek van Strafvordering), in
relevant part, provides as follows:
Article 66
“1. An order for further detention on
remand, or for the prolongation thereof, shall be in force for a
period of up to ninety days, to be determined by the Regional Court,
starting at the moment of its execution. ...”
Article 71
“1. The suspect can lodge an appeal
with the Court of Appeal against the Regional Court's decision to
order or extend his further detention on remand no later than three
days after the execution thereof. ...”
2. Within the same time-limit, the suspect
can appeal against an order to prolong his further detention on
remand, but only if he did not appeal against the order for detention
on remand, nor against an earlier prolongation order. ...”
Article 73
“...
2. An order for detention on remand shall
enter into force as of the moment at which the suspect is detained
for the purpose of the execution of that order or as of the time at
which the execution of a different order for detention on remand,
given in the same case, ends, as the case may be. ...”
Article 87
“...
2. The applicant who has sought the
termination or suspension of his detention on remand may lodge an
appeal against a refusal of that request with the Court of Appeal
once, within three days of the service of that decision. The suspect
who has appealed against a decision refusing a request for suspension
of detention on remand cannot afterwards appeal against a decision
refusing the lifting of detention on remand. The suspect who has
appealed against a decision refusing a request for suspension of
detention on remand cannot afterwards appeal against a decision
refusing the suspension of detention on remand. ...”
Article 449
“1. Except as otherwise provided by
law, an appeal or appeal on points of law shall be introduced by a
declaration to be made by the person making use of the legal remedy
at the registry of the court by which or within which the decision
has been given. ...”
Article 450
“1. Legal remedies, as referred to in
Article 449, can also be made use of through the offices of:
a. an advocate, if he or she declares that he
has been specifically empowered for that purpose by the person making
use of the legal remedy; ...”
Article 451a
“1. If the person who wishes to make
use of a legal remedy is detained in a remand centre, prison or
custodial clinic, ... then he can also make use of the legal remedies
... by means of a written declaration submitted to the person in
charge of the institution.
2. The person in charge of the institution
shall have this declaration entered in a register kept for that
purpose without delay, and then forward it to the registry of the
court by which, or within which, the decision has been given, stating
the date of entry in the register. The date on which the legal remedy
is made use of shall be deemed to be the date of the entry in the
register. ...”
B. The General Time Limits Act
The
General Time Limits Act (Algemene Termijnenwet), in relevant
part, provides as follows:
Section 2
“A time limit prescribed by law of at least three
days shall, if necessary, be extended so that it shall comprise at
least two days which are not a Saturday, a Sunday or a public
holiday.”
C. The Criminal Code
Article
27 § 1 of the Criminal Code (Wetboek van Strafrecht)
requires the courts when sentencing in all cases to deduct from the
sentence the time which the convicted person has spent in police
custody and detention on remand.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complains under Article 6 of the Convention about the Court
of Appeal's dismissal of his appeal against the rejection of his
request for the suspension of his detention on remand and against his
extended detention on remand.
In
relation to the rejection of his request for the suspension of his
detention on remand, he submits that the decision was served on him
only on 4 December 2007, that is after the three-day time-limit had
expired, and that he was not aware of it at any earlier time; for
that reason, it was not possible for him to lodge an appeal before 5
December 2007.
In
relation to the dismissal of his appeal against the order for his
further detention on remand, he submits that in view of the relevant
law on time-limits the three-day time-limit for his appeal could not
have started to run before Monday 3 December 2007; it follows that
his appeal, which was lodged on Wednesday 5 December 2007, was lodged
in good time.
The
Court finds that these complaints are more appropriately considered
under Article 5 § 4 of the Convention, which provides as
follows:
“4. 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.”
A. The Government's preliminary objections
1. Victim status
The
Government submitted that the applicant could no longer be considered
a “victim” of any supposed violation of the Convention,
within the meaning of Article 34 of the Convention, since the entire
period of pre–trial detention had been deducted from his prison
sentence (paragraphs 15 and 18 above).
The
applicant argued that this objection was in contradiction with the
Government's preliminary objection of non-exhaustion, to be discussed
below: in his view, to recognise that a legal remedy existed was to
recognise that the possibility of victimhood existed.
According to the Court's well-established case-law, the word "victim"
in Article 34 denotes the person directly affected by the act or
omission in issue, the existence of a violation being conceivable
even in the absence of detriment; detriment is relevant only in the
context of Article 41. Consequently, the relevant deduction from
sentence does not in principle deprive the applicant of his status as
an alleged "victim", within the meaning of Article 34, of a
breach of Article 5; it is a matter to be taken into consideration
solely for the purpose of assessing the extent of any prejudice he
may have suffered. The position might be otherwise if the deduction
from sentence had been based upon an acknowledgement by the national
courts of a violation of the Convention (see, among other authorities
and mutatis mutandis, De Jong, Baljet and Van
den Brink v. the Netherlands,
22 May 1984, § 41, Series
A no. 77, and Pavletić v. Slovakia, no. 39359/98,
§ 61, 22 June 2004; see also Lebedev v. Russia, no.
4493/04, § 47,
25 October 2007). Such, however, is not the
case here; in fact, inclusion of the time spent in custody in the
overall time to be served by the applicant was not in any way
connected to the alleged violation of Article 6 § 1 (or Article
5 § 4) of the Convention but followed directly from the
operation of Article 27 § 1 of the Criminal Code (see paragraph
18 above; compare Lebedev v. Russia, loc. cit.). It
follows that this objection must be dismissed.
2. Non-exhaustion
The
Government argued in the alternative that the applicant had failed to
exhaust the available domestic remedies.
a. Separate appeals
In
the first place, the Government stated that the applicant ought not
to have introduced one single appeal against the refusal to suspend
his detention on remand and the order for his further detention on
remand (see paragraph 9 above). At the very least, he ought to have
mentioned when lodging his appeal that he was acting on the
assumption that different time limits applied.
The
applicant dismissed this objection as “nonsense”.
The
Court observes that, whatever the truth of the Government's
contention that separate appeals should have been brought, the fact
remains that the appeal brought was considered separately on both
points by the Court of Appeal. It is precisely the Court of Appeal's
decision to reject the appeal under both heads as out of time
(paragraph 10 above) which led the applicant to lodge the present
application. It cannot be seen, therefore, what the applicant would
have gained by lodging separate appeals and arguing about time-limits
which he believed had not yet been transgressed. This objection must
therefore be dismissed.
b. A new request for suspension
In
the second place, the Government suggested that the applicant ought
to have lodged a new request for suspension of his detention on
remand. Should it have proved unsuccessful, the resulting decision
could have been the object of a new appeal.
The
applicant pointed out that a suspect could appeal only once against
an order refusing the lifting or suspension of detention on remand.
Like
the applicant, the Court observes that in the system of the Code of
Criminal Procedure an accused has only one chance to lodge an appeal
against the refusal to lift or suspend detention on remand (Articles
71 § 2 and 87 § 2; see paragraph 16 above). At all events,
had the applicant lodged a new request with the Regional Court for
the suspension of his detention on remand, then whatever the outcome
it would not have affected the validity of the Court of Appeal's
decisions. This objection too must therefore be dismissed.
3. No significant disadvantage
In
the further alternative, the Government argued that the applicant had
not suffered any significant disadvantage. They asked the Court to
declare the application inadmissible on the ground set out, since the
entry into force of Protocol No. 14 on 1 June 2010, in Article 35 §
3 (b) of the Convention, the “safeguard clauses”
contained therein not being applicable.
The
applicant argued that the consequences which he had suffered could
not be dismissed in such cavalier terms. He submitted in addition
that the Court was prevented from applying a Convention provision
that had entered into force only on 1 June 2010, that is long after
the introduction of the application.
Article
20 of Protocol No. 14 to the Convention provides as follows:
“1. From the date of the entry into force of this
Protocol, its provisions shall apply to all applications pending
before the Court as well as to all judgments whose execution is under
supervision by the Committee of Ministers.
2. The new admissibility criterion inserted by Article
12 of this Protocol in
Article 35, paragraph 3.b of the
Convention, shall not apply to applications declared admissible
before the entry into force of the Protocol. In the two years
following the entry into force of this Protocol, the new
admissibility criterion may only be applied by Chambers and the Grand
Chamber of the Court.”
The
present application is not one of those declared admissible before 1
June 2010. It follows that, under the terms of Article 20 of Protocol
No. 14, the Court is not prevented from considering it under the new
admissibility criterion.
Article
35 § 3 (b) provides as follows:
“3. The Court shall declare
inadmissible any individual application submitted under Article 34
if it considers that:
...
(b|) the applicant has not suffered a significant
disadvantage, unless respect for human rights as defined in the
Convention and the Protocols thereto requires an examination of the
application on the merits and provided that no case may be rejected
on this ground which has not been duly considered by a domestic
tribunal.”
The
Court has clarified its understanding of the new criterion in Korolev
v. Russia (dec.), no. 25551/05, ECHR 2010-..., in the following
terms:
“Inspired by the ... general principle de
minimis non curat praetor, the new criterion hinges on the idea
that a violation of a right, however real from a purely legal point
of view, should attain a minimum level of severity to warrant
consideration by an international court. The assessment of this
minimum level is, in the nature of things, relative and depends on
all the circumstances of the case (see, mutatis mutandis,
Soering v. the United Kingdom, 7 July 1989, § 100,
Series A no. 161). The severity of a violation should be assessed,
taking account of both the applicant's subjective perceptions and
what is objectively at stake in a particular case.”
The
Government have not explained why they consider that the applicant
has suffered no “significant disadvantage”. The two
“safeguard clauses” contained in Article 35 § 3 (b)
they dismiss as irrelevant.
As
the Court understands the Government's reliance on this provision,
the Government wish to imply that the deduction of the applicant's
detention on remand from his prison sentence in itself negates any
detriment which the applicant may have suffered on this account. The
Court has already rejected a similar argument under the head of
“victim status” for purposes of Article 34 (paragraph 23
above).
The
Court cannot accept such a suggestion under Article 35 § 2 (b)
either. It is a feature of the criminal procedure of many contracting
Parties, if not most, to set periods of detention prior to final
conviction and sentencing off against the eventual sentence; for the
Court to hold generally that any harm resulting from pre-trial
detention was thereby ipso facto nugatory for Convention
purposes would remove a large proportion of potential complaints
under Article 5 from the scope of its scrutiny. This objection is
therefore likewise dismissed.
B. The order for further detention on remand
The
applicant and respondent parties differ as to whether the Regional
Court's order for further detention on remand was in fact served on
the applicant before the expiry of the time-limit within which he
could have lodged an appeal.
The
Government have submitted an official record showing that the
Regional Court's decision was served on the applicant in person on
29 November 2007.
The
applicant does not deny that this document is a correct statement of
fact, but dismisses it as unimportant since it has no bearing on the
appeal against the refusal of suspension of his detention on remand.
The
order for extended detention on remand was given by the Regional
Court on 28 November 2007 (paragraph 8 above).
The execution of the order for extended detention on remand (Article
73 of the Code of Criminal Procedure) began after the end of the
fourteen-day term of initial detention on remand, that is on
1 December 2007 (paragraph 7 above), which was also the day
on which the three-day time-limit started to run (Article 71 of the
Code of Criminal Procedure). That being a Saturday, in accordance
with domestic law the time-limit was counted so as to include two
full working days – that is, the following Monday and Tuesday
(section 2 of the General Time Limits Act).
The
Government having submitted a copy of the official delivery record
(paragraph 13 above), the Court finds that the applicant was
officially made aware of the order for extended detention on remand
on
29 November 2007. Mr van Zundert appealed against this order
on the applicant's behalf only on 5 December 2007, that is one day
too late. It cannot be seen that the applicant could not have given
his counsel appropriate instructions in proper time – or
indeed, that he could not have lodged the appeal himself, by making
the appropriate declaration to be entered on the remand centre's
register (Article 451a of the Code of Criminal Procedure; paragraph
16 above).
It
follows that in so far as the applicant complains about the decision
to declare his appeal against the order for further detention on
remand inadmissible as out of time, the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
C. The appeal against the refusal to suspend the applicant's
detention on remand
1. Admissibility
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
The
Government submitted that the order for the applicant's detention on
remand had been reviewed with sufficient frequency by a court which
satisfied the appropriate requirements.
The
applicant dismissed the Government's arguments as irrelevant to his
complaint, since the Court of Appeal had wrongly rejected his appeals
as out of time.
The
Court must examine the facts on which the applicant bases his
complaints and determine whether in fact the domestic authorities
failed to meet any time-limits prescribed them before it can decide
whether any failing on their part deprived the applicant of access to
proceedings by which the lawfulness of his detention could be
decided.
Like
the order for extended detention on remand, the decision refusing
suspension of the applicant's detention on remand was given by the
Regional Court on 28 November 2007 (paragraph 8 above).
The
Government observed that the applicant had attended the hearing on 28
November 2007, assisted by counsel. The request for suspension of the
detention on remand had been a contingency measure in the event the
court decided to order the applicant's further detention on remand.
The applicant, having been informed of the order for his extended
detention on remand and finding himself still in detention on 1
December 2007, ought to have realised that his request for suspension
had been rejected and could have been expected to act of his own
accord.
The
applicant dismissed this argument as “nonsense” and
contrary to usual practice in the Netherlands. He maintained that the
Court of Appeal had simply made a mistake.
The
Court has held, in the context of Article 5 § 3 of the
Convention (McKay v. the United Kingdom [GC], no. 543/03, §
41, ECHR 2006 X):
“The presumption is in favour of release. As
established in Neumeister v. Austria (27 June 1968, p.
37, § 4, Series A no. 8), the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until conviction, he must be
presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continuing detention ceases to be reasonable.”
In
the Court's view the corollary is that where a procedure enabling a
suspect in pre-trial detention to seek his provisional release exists
in domestic law, Article 5 § 4 requires that the suspect enjoy
whatever guarantees are offered to the full.
The
Court cannot ignore the clear terms of Article 87 § 2 of the
Code of Criminal Procedure, which provides that a suspect has three
days after such a decision is served to lodge an appeal. In the
present case, service took place on 4 December 2007. The applicant's
counsel lodged the appeal the following day. Consequently the appeal
ought not to have been rejected as out of time.
The
applicant has therefore been deprived of access to a procedure to
obtain his release, albeit only provisionally, from pre-trial
detention which under domestic law ought to have been open to him. In
this respect, there has therefore been a violation of Article 5 §
4.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Non-pecuniary damage
The
applicant claimed EUR 10,080, which is EUR 70 for each day that he
had spent “too long in custody”. He submitted that given
his poor health, he might well have received an entirely suspended
sentence but for the mistakes made by the Court of Appeal.
The
Government did not comment.
The
Court notes that it has declared inadmissible the complaint relating
to the Court of Appeal's rejection of the applicant's appeal against
the order for his further detention on remand (paragraph 46 above).
For the remainder, the Court cannot speculate on the possible outcome
of the proceedings had the Court of Appeal decided otherwise.
The
Court considers nonetheless that the applicant has suffered
non-pecuniary damage that cannot be made good by the finding of a
violation alone. Deciding on an equitable basis, the Court awards the
applicant
EUR 1,000 under this head.
B. Pecuniary damage
The
applicant claimed reimbursement of certain domestic expenses which
had continued while he remained in detention.
The
Government did not comment.
In
view of the circumstances of the case, the Court does not discern any
causal link between the violation found and the damage claimed. It
therefore rejects the applicant's claims under this head.
C. Costs and expenses
The
applicant sought reimbursement of the costs and expenses incurred
before the Court but left the amount to the discretion of the Court.
He stated that although he had received legal aid from the domestic
authorities for the proceedings in Strasbourg, this did not cover
certain out-of-pocket expenses which he set at EUR 81.05.
The
Government did not comment.
The
Court observes that the application has been declared inadmissible in
part. It considers the amount made payable by way of domestic legal
aid, EUR 1,350.80, quite adequate in the circumstances. It declines
to award any further sum.
D. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the applicant's complaint that the
Court of Appeal wrongly rejected his appeal against the order for his
further detention on remand as out of time inadmissible and
the applicant's complaint that the Court of Appeal wrongly rejected
his appeal against the refusal to suspend his further detention on
remand admissible;
Holds that there has been a violation of
Article 5 § 4 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand Euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Section Registrar President
