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NELISSEN v. THE NETHERLANDS - 6051/07 [2011] ECHR 592 (5 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/592.html
Cite as:
[2011] ECHR 592
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THIRD
SECTION
CASE OF
NELISSEN v. THE NETHERLANDS
(Application
no. 6051/07)
JUDGMENT
STRASBOURG
5 April
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 Nelissen v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Egbert
Myjer,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
judges,
and
Santiago Quesada, Section
Registrar,
Having
deliberated in private on 8 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 6051/07) 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
Rafael Hubertus Simon Nelissen (“the
applicant”), on 4 February 2007.
The
applicant was represented initially by his parents, Mr J.H. Nelissen
and Mrs A.G. Nelissen-Habets, who reside in Maastricht, and
subsequently by Mr L.E.M. Hendriks, a lawyer practising in
Maastricht. The Netherlands Government (“the Government”)
were represented by their Agent, Mr R.A.A. Böcker, and their
Deputy Agent, Ms L. Egmond, both of the Netherlands Ministry for
Foreign Affairs.
The
applicant alleged, in particular, that the lapse of time that passed
before he was transferred from remand prison to a custodial clinic
violated Article 5 § 1 of the Convention.
On
1 September 2009 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).
THE FACTS
A. The circumstances of the case
The
applicant is a Netherlands national who was born in 1968 and lives in
Maastricht.
On
4 November 2003, the applicant went to the home of one Ms E. and
demanded that she give him an obituary card of her sister who had
recently died. On being met with a refusal, he forced his way into Ms
E.’s home, causing her to fall, and hit her over the head
several times. He then made his way over to the sideboard, where he
had noticed a stack of documents; of these, he took several – a
magazine and some giro form stubs – before leaving.
In
the course of the subsequent criminal proceedings it emerged that the
applicant was a pathological collector of devotional obituary cards
for the recently deceased. Whenever possible – on the
applicant’s own admission, whenever he was not detained under
civil or criminal law – the applicant would gatecrash funerals
in the Maastricht area. He had met Ms E. at her sister’s
funeral, from which he had been turned away by the undertaker. At the
time of his visit to Ms E.’s home, he had been under the
mistaken impression that he had propitiated Ms E. by sending her a
blessed candle beforehand.
The
applicant was taken into police custody the same day on suspicion of
having committed a criminal offence. He remained in pre-trial
detention pending the criminal proceedings that were subsequently
brought against him and the order for his pre-trial detention was
duly prolonged.
Examinations
of the applicant’s mental state by two psychiatrists and a
psychologist showed that the applicant was, at the time of the crime,
suffering from a mental impairment. The report of the psychiatrists
diagnosed it as “a paranoid form of schizophrenia in which
autistiform characteristics are unusually prominent and ... an
obsessive compulsive personality disorder”. Both the
psychiatrists’ report and that of the psychologist considered
it very likely that the applicant would reoffend if given the chance.
Both reports mentioned the applicant’s lack of awareness of his
condition, which made him difficult to treat. They concurred in
recommending that the applicant undergo compulsory treatment in a
closed setting. In addition, a psychologist attached to a mental
hospital where the applicant had been held previously, under the
Psychiatric Hospitals (Compulsory Admission) Act (Wet bijzondere
opnemingen in psychiatrische ziekenhuizen; see paragraph 20
below), gave evidence in open court to the effect that the applicant
had absconded before and would resist “all possible forms of
interference in his personal life” if he could.
On
18 May 2004 the criminal law section of the Maastricht Regional Court
(rechtbank), following adversarial proceedings, convicted the
applicant of theft preceded by violence and sentenced him to seven
months’ imprisonment with deduction of the time spent in
pre-trial detention. Having found that the applicant was able to
understand the unlawful nature of his acts but that on account of the
limited development of his mental faculties he could only be held
responsible for this offence to a limited degree whereas there was
considerable danger of his reoffending, it further imposed a TBS
order with confinement in a custodial clinic (terbeschikkingstelling
met bevel tot verpleging van overheidswege; “TBS order”).
Referring to Article 72 § 4 of the Code of Criminal Procedure
(Wetboek van Strafvordering), it further ordered the
termination of the applicant’s pre-trial detention as from the
moment on which the duration of the pre-trial detention would be
equal to the prison sentence imposed. Both the prosecution and the
applicant appealed to the Court of Appeal (gerechtshof).
The
applicant’s lawyer further applied to the Court of Appeal for
the applicant’s immediate release from pre-trial detention on
the ground that – as the applicant had already served the
sentence imposed with deduction of the time spent in pre-trial
detention – there was no legal basis for his further detention.
The prosecution opposed this application, arguing that Article 72 §
2 of the Code of Criminal Procedure ruled out the termination of
pre-trial detention in a case like the applicant’s where a
prison sentence is combined with a TBS order.
On
3 June 2004, the ‘s-Hertogenbosch Court of Appeal held a
hearing in camera and ordered the applicant’s immediate
release. On the same day, at the request of the public prosecutor,
the civil law section of the Maastricht Regional Court issued an
interim admission order (voorlopige machtiging) within the
meaning of Article 2 of the Psychiatric Hospitals (Compulsory
Admission) Act under the procedure set out in this Act. Consequently,
after the applicant was released from pre-trial detention on 3 June
2004, he was compulsorily admitted to a psychiatric hospital in
Vijverdal under the judicial interim admission order. He stayed there
until 13 December 2004.
On
1 December 2004 the applicant’s appeal against the judgment of
18 May 2004 was heard by the ‘s-Hertogenbosch Court of Appeal,
which on the same day issued a warrant for the applicant to be taken
into pre-trial detention (gevangenneming) within the meaning
of Article 75 § 3 of the Code of Criminal Procedure. Pursuant to
Article 75 § 5 of the Code of Criminal Procedure, this order
remained in force pending the total further duration of the criminal
proceedings against the applicant.
By
judgment of 15 December 2004, the ‘s-Hertogenbosch Court of
Appeal quashed the judgment of 18 May 2004 on technical grounds,
convicted the applicant of theft preceded by violence, sentenced him
to seven months’ imprisonment with deduction of the time spent
in pre-trial detention and imposed a TBS order with confinement in a
custodial clinic.
The
applicant lodged an appeal on points of law (cassation) with the
Supreme Court (Hoge Raad), which was dismissed on summary
reasoning on 14 February 2006. Accordingly, the applicant’s TBS
order took effect on this date, replacing the pre-trial detention
order of 1 December 2004 as the legal basis for the applicant’s
detention. However, the applicant was not directly transferred to a
custodial clinic but was held in pre-placement detention until a
suitable place would become available for him.
By
letter of 16 August 2006, the Minister of Justice informed the
applicant that, given the Court’s conclusion in the case of
Brand v. the Netherlands, no. 49902/99, 11 May 2004, the
Appeals Board (beroepscommissie) of the Council for the
Administration of Criminal Justice and Juvenile Protection (Raad
voor Strafrechtstoepassing en Jeugdbescherming) had found that
financial compensation was appropriate in all cases where
pre-placement detention after the end of a prison sentence had
exceeded six months. Starting on the seventh month, this compensation
amounted to 350 euros (EUR) per month and this amount was to be
increased by EUR 125 every further trimester. The applicant was
further informed that the total amount of compensation would be
calculated and paid once he had been admitted to a custodial clinic.
The applicant was invited to confirm within seven days whether he
wished to avail himself of this compensation offer. This letter has
remained unanswered by the applicant.
On
20 March 2007 the applicant was admitted to a custodial clinic. On 30
August 2007, he was informed by the Deputy Minister of Justice
(Staatssecretaris van Justitie) that, as his pre-placement
detention had exceeded six months on 13 August 2006, he was offered
compensation in a total amount of EUR 3,075 for the time spent in
pre-placement detention between 13 August 2006 and 20 March 2007.
On
5 September 2007, the applicant’s parents informed the Minister
of Justice – in reply to the letter of 30 August 2007 –
that they disagreed with the manner of calculation and the amount of
compensation. On 19 September 2007, the Deputy Minister of
Justice replied that there were no reasons for her to reconsider her
position in the matter.
On
21 April 2008, the applicant’s representatives informed the
Court that the applicant’s TBS order had been extended by two
years.
B. Relevant domestic law and practice
1. Pre-trial detention
The
statutory rules governing pre-trial detention are set out in Articles
63 to 88 of the Code of Criminal Procedure. An order for pre-trial
detention can only be issued against persons suspected of an offence
carrying a maximum prison sentence of four years or more or certain
other specific criminal acts (Article 67 § 1 of the Code of
Criminal Procedure).
A
pre-trial detention order issued by the Regional Court remains in
force for 60 days after the final judgment (einduitspraak) at
that instance has been given (Article 66 § 2 of the Code of
Criminal Procedure). The public prosecutor may file, within 60 days
after the date of the final judgment of the first-instance court, a
request for the prolongation of the pre-trial detention order by 60
days with the appeal court, which will determine that request.
Pre-trial detention between a final judgment of a first-instance
court against which an appeal has been filed, and the first hearing
on that appeal, is limited to a maximum of 180 days (Article 75 §
3 of the Code of Criminal Procedure). If, however, the total duration
of the detention on remand becomes equal to the prison sentence
imposed, the highest competent trial court shall lift the remand
order (Article 75 § 6 of the Code of Criminal Procedure) unless
– in addition to a prison sentence – a measure entailing
deprivation of liberty (such as, for instance, a TBS order) has been
imposed (Article 72 § 4 of the Code of Criminal Procedure). A
more detailed overview of the relevant domestic law and practice on
pre-trial detention is given in Saez v. the Netherlands
(dec.), no. 51197/99, 25 May 2004.
2. Judicial interim orders under the Psychiatric
Hospitals (Compulsory Admission) Act
At
the request of the public prosecutor or relatives of the person
concerned (Article 2 § 1 and Article 4 § 1 of the
Psychiatric Hospitals (Compulsory Admission) Act), the Regional Court
can – after having heard the person concerned (Article 8) and
after having considered a report by a psychiatrist who has examined
the person concerned shortly before (Article 5) – issue an
interim order for compulsory admission to a mental hospital. This
order can only be issued where the judge finds that the person
concerned is suffering from a mental disorder which gives rise to
danger which cannot be averted by the intervention of persons or
institutions outside a mental hospital (Article 2 § 2). An
interim order is immediately enforceable (bij voorraad
uitvoerbaar) and valid for a maximum period of six months, which
period starts to run on the day the order is given (Article 10).
At the request of the public prosecutor, the Regional Court can
prolong the validity of an interim order.
3. TBS orders and pre-placement detention
Article
37a of the Netherlands Criminal Code (Wetboek van Strafrecht)
enables courts, when dealing with certain serious crimes, to impose a
TBS order on a defendant whose mental faculties were inadequately
developed or pathologically disturbed at the time of the commission
of the offence. If the safety of others or the general safety of
persons or goods so requires, the court may further direct that such
a person be confined to a custodial clinic in accordance with Article
37b of the Criminal Code. A TBS order with confinement to a custodial
clinic can be imposed in conjunction with a prison sentence if the
convicted person’s responsibility was merely diminished at the
time of the commission of the offence. In such a situation, the TBS
order will take effect after the convicted person has served the
prison sentence imposed. A TBS order cannot take effect before the
judgment concerned has become final (Article 38d § 1 of the
Criminal Code). Pending admission to a custodial clinic, the person
concerned is not released but held in pre-placement detention.
A
TBS order with confinement to a custodial clinic is not intended to
have a punitive effect, but to protect society from any risk posed by
the person concerned and enable the latter’s re-socialisation.
Custodial clinics, of which there were twelve in the Netherlands at
the material time, are top-security institutions as the persons
placed there have been found to pose a great danger to society as
well as to themselves. The treatment provided in a custodial clinic
is geared to individual disorders and personalities. It is aimed at
helping persons subject to a TBS order to gain insight into and
control over their disorders, to make them aware of their
responsibilities and to adjust their behaviour accordingly so that
they no longer pose a threat to society.
According
to Article 38d of the Criminal Code, the TBS order is valid for an
initial period of two years which may be prolonged by the court, at
the request of the public prosecutor, for a further period of one or
two years. The period of placement cannot be extended beyond a total
of four years unless the crime committed by the person concerned was
a crime of violence committed against, or causing danger to, one or
more persons, or such further extension is necessary for the
protection of other persons (Article 38e).
4. Relevant domestic case-law
In
a judgment of 23 September 2005 (Landelijk Jurisprudentie Nummer
[National Jurisprudence Number], “LJN”) AU9742, the
Provisional Measures Judge (voorzieningenrechter) of the
Regional Court of Breda held the following:
“Section 12 of the Act on confinement to a
custodial clinic of persons subject to a TBS order (Beginselenwet
verpleging ter beschikking gestelden) provides that a person in
pre-placement detention shall be placed [in an appropriate
institution] before the TBS order has run for six months. ... In view
of the judgments of the European Court of Human Rights in the cases
of Brand (no. 49902/99) and Morsink (no. 48865/99) and the
decisions of the Council for the Application of Criminal Law and the
Protection of Juveniles it may be assumed that a time lapse of six
months or more for persons subject to a TBS order is, in principle,
wrongful in the light of Article 5 § 1 of the Convention.
...
3.7 The structural capacity shortage that has
existed since more than twenty years is not a special circumstance in
the above-mentioned sense which would justify (further) delay in
placing [the plaintiff] in a TBS clinic. This shortage must remain
the responsibility of the Government. The fact that there are visible
causes for the lack of capacity and that measures are being taken to
reduce or alleviate this shortage does not make any difference in
this regard.
...”
The
Provisional Measures Judge went on to order the plaintiff placed in a
TBS clinic no later than nine months after 1 February 2005 (the date
on which the waiting period had started), that is to say by 1 October
2005, after which, if the order was not carried out, the plaintiff
was to be released immediately.
In
its judgment of 30 August 2005, LJN AU1686, the Court of Appeal of
Arnhem held that it was reasonable in principle that the order in
which persons subject to a TBS order were placed in a custodial
clinic should depend on their place on a waiting list unless, owing
to special circumstances, they were unsuited to detention elsewhere.
However, in the particular case the period of pre-placement detention
was no longer in proportion to the length of time spent by the person
concerned in the execution of his prison sentence. The State was
therefore ordered to place the person concerned (the defendant in
appeal) in a custodial clinic within three months, which time-limit
was considered long enough for all practical objections (including
the lack of adequate facilities) to have lost their force.
In
a judgment given on 13 December 2005, the Provisional Measures Judge
of the Regional Court of ‘s-Hertogenbosch on similar reasoning,
the State was ordered to place the plaintiff in a custodial clinic by
1 April 2006, that is a time-limit of just over three and a half
months.
In
a judgment given on 21 June 2006, the Provisional Measures Judge of
the Arnhem Regional Court found that special circumstances obtained
which justified ordering the plaintiff to be given priority placement
in a custodial institution. The special circumstances consisted of
his having been given a TBS order without a prior prison sentence and
his being considered unsuited to detention in a penal rather than a
clinical setting.
In
a judgment given on 22 June 2006, the Court of Appeal of The Hague
found that the mental condition of the person concerned (the
appellant) was serious, but not more so than that of others on the
waiting list for placement in a custodial clinic, so that there was
no justification for giving this person priority over others.
In
a judgment given on 21 September 2006, the Regional Court of Alkmaar
declined to order the plaintiff given priority over others on the
waiting list absent special circumstances. In so doing the Regional
Court had regard to the efforts being made to create more places for
persons subject to a TBS order with confinement in a custodial clinic
and the fact, as stated by the defendant, that the plaintiff could
expect to be placed in such an institution by the end of the year.
In
a judgment given on 21 September 2007, the Regional Court of The
Hague found special circumstances justifying priority placement to
exist in that the plaintiff had spent twenty months in detention
after serving a one-month prison sentence and in that only two
custodial clinics existed that were capable of treating him. The
defendant was ordered to place the plaintiff in one of the two
clinics no later than 1 December 2007.
In
a judgment given on 21 December 2007 in civil proceedings on a
compensation claim arising from a wrongful act on the part of the
government (onrechtmatige overheidsdaad), the Supreme Court
(Hoge Raad) held 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 in
the cases of Morsink v. the Netherlands (no. 48865/99, §§
26-37, 11 May 2004) and Brand v. the Netherlands (cited above,
§§ 23-33).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
A. Article 5 § 1 of the Convention
The
applicant alleged a violation of his rights under Article 5 in that
he continued to be detained after having served the seven-month
prison sentence imposed on him. Article 5 of the Convention, in its
relevant part, reads as follows:
“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) he 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; ...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants; ...
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. ...”
1. The Government’s unilateral declaration
On
14 May 2008 the Government sua sponte submitted a letter
containing the following formal unilateral declaration:
“1. As the efforts with a view to
securing a friendly settlement of the case have been unsuccessful,
the Government wishes to express – by way of a unilateral
declaration – its acknowledgement that the duration of the
applicant’s detention while awaiting placement in a custodial
clinic (‘pre-placement detention’) was not in conformity
with the requirements of Article 5 of the Convention.
2. Consequently, the Government is prepared
to pay the applicant, represented by his father, in compensation for
non-pecuniary damage EUR 3,525 (three thousand five hundred and
twenty-five euros), plus any tax that may be chargeable. In the
Government’s view, this amount would constitute adequate
redress and sufficient compensation for the impugned duration of the
applicant’s pre-placement detention.
3. This amount will be payable within three
months from the date of notification of the decision pursuant to
Article 37 § 1 (c) of the Convention. In the event of the
failure to pay this sum within the said three-month period, the
Government undertake to pay statutory interest.
4. In the light of above, the Government
would suggest that the circumstances of the present case allow the
Court to reach the conclusion that there exists ‘any other
reason’, as referred to in Article 37 § 1 (c) of the
Convention, justifying the Court to discontinue the examination of
this part of the application, and that, moreover, there are no
reasons of a general character, as defined in Article 37 § 1 in
fine, which would require the further examination of the case by
virtue of that provision. Accordingly, the Government invites the
Court to strike the application out of its list of pending cases.”
The
Court understands from the applicant’s subsequent submissions
that he opposed the Government’s request.
On
16 June 2009 the Court decided to adjourn its examination of the
case. This entailed the provisional decision not to accede to the
Government’s request to strike the case out of the list. On 23
June 2009 the application was formally communicated to the Government
as respondent Party (Rule 54 § 2 (b) of the Rules of Court).
2. The Court’s decision on the Government’s
unilateral declaration
In
their observations on the admissibility and merits of the
application, the Government reiterated their unilateral declaration
and asked the Court to strike the application out of its list of
cases in so far as it related to the period of pre-placement
detention.
The
Court now observes that although the Government acknowledged in their
unilateral declaration that the duration of the pre-placement
detention was not in conformity with the requirements of Article 5
of the Convention, it remains unclear whether this incompatibility
commenced four months after the TBS order had taken effect or at an
earlier or later stage. The Court further notes that the unilateral
declaration only addresses part of the applicant’s complaint
under Article 5 of the Convention, namely the duration of the
applicant’s pre-placement detention, and not the remaining
aspects of this complaint, namely the lawfulness under Article 5 of
the Convention of his detention after he had served the prison
sentence imposed on him.
The
Court therefore rejects the Government’s request to strike the
application out of its list of cases under Article 37 of the
Convention and will accordingly pursue its examination of the case.
3. Admissibility
In
case the Court should not accept their unilateral declaration, the
Government submitted observations on the admissibility and merits of
the case. The Court will turn first to the Government’s
preliminary objections.
a. Exhaustion of domestic remedies
The
Government argued that the applicant could have sought an injunction
against the State in proceedings before the provisional measures
judge. They pointed to a judgment of the Provisional Measures Judge
of the Regional Court of Breda of 23 September 2005 (see paragraph 25
above), in which a person subject to a TBS order had successfully
obtained an order for her transfer to a custodial clinic by a certain
date or her release otherwise.
The
applicant submitted that the judgment cited by the Government was an
exceptional one. He cited several other judgments from which it
appeared, in his contention, that an order for accelerated placement
could be given only if “special circumstances” obtained
(see paragraphs 26-31 above).
As
the Court has held many times, in the area of the exhaustion of
domestic remedies there is a distribution of the burden of proof. It
is incumbent on the Government claiming non-exhaustion to satisfy the
Court that the remedy was an effective one available in theory and in
practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant’s complaints and offered reasonable prospects
of success. However, once this burden of proof has been satisfied it
falls to the applicant to establish that the remedy advanced by the
Government was in fact exhausted or was for some reason inadequate
and ineffective in the particular circumstances of the case or that
there existed special circumstances absolving him or her from the
requirement (see, among other authorities, Akdivar and Others v.
Turkey, 16 September 1996, § 68, Reports of
Judgments and Decisions 1996 IV; and Mooren v. Germany
[GC], no. 11364/03, § 118, ECHR 2009 ...).
It should be added that the existence of mere doubts
as to the prospects of success of a particular remedy which is not
obviously futile is not a valid reason for failing to exhaust
domestic remedies (see, among many other authorities, Sejdovic v.
Italy [GC], no. 56581/00, § 45, ECHR 2006 II, and
Milošević v. the Netherlands (dec.), no.
77631/01, 19 March 2002).
It
is true that the remedy alluded to by the Government has proved
successful on at least one occasion in that it resulted in an order
for the speedy transfer of the person concerned to an appropriate
clinic within a very short time or, alternatively, his release (see
paragraph 25 above). From the plain wording of the judgment in
question, it is clear that special circumstances warranting
preferential treatment were not considered a requirement for the
provisional measures judge to order either placement in a TBS clinic
or release within a set time-limit.
Conversely,
in other judgments (paragraphs 26-31 above), many of which post-date
the judgment cited by the Government, the courts have been prepared
to set a time-limit for the end of pre-placement detention only if
the person concerned could claim “special circumstances”
such as a disproportion between the length of pre-placement detention
and a prison sentence already served or unfitness for detention in a
non-clinical setting. Even then, the time-limits set were three
months or more.
The
Supreme Court, in its judgment of 21 December 2007 (see paragraph 32
above), recognised as unlawful per se any pre-placement
detention lasting more than four months. The time-limits ordered for
the expiry of pre-placement detention in each of the cases cited in
paragraphs 26-31 were nearly as long again, and moreover were
granted only if the detainee could argue that they should
exceptionally be given priority over others.
Given
the weight of the domestic case-law pointing in a direction away from
the single precedent cited by the Government, the Court cannot find
it established that an effective remedy existed. It follows that the
Government’s preliminary objection of non-exhaustion of
domestic remedies must be rejected.
b. Loss of victim status
The
Government argued in addition that the application was manifestly
ill-founded; and in particular that the applicant had lost the status
of “victim” within the meaning of Article 34 of the
Convention as a result of the Government’s offer in friendly
settlement negotiations and their above-quoted unilateral
declaration.
It
follows from the reasoning contained in paragraph 38 above that this
preliminary objection of loss of victim status cannot be accepted.
c. Manifestly ill-founded
The
Government argued, finally, that the application was manifestly
ill-founded.
The
reasons given by the Government for so arguing will be addressed
below as the Court examines the merits of the case.
d. Conclusion as to admissibility
The
Court considers, in the light of the parties’ submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the
merits. The Court concludes therefore that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has
been established.
4. Merits
a. Argument before the Court
The
Government argued that the application was manifestly ill-founded. In
his application the applicant had complained merely that the
imposition and extension of the TBS order were in themselves
unlawful. That, however, was a matter within the reserved domain of
the domestic courts. The TBS order had been imposed by the Regional
Court, confirmed by the Court of Appeal and left intact by the
Supreme Court; for the applicant to argue that it was unlawful was to
approach the Court as a “court of fourth instance”.
In
his observations, the applicant stated that after serving his
seven-month prison sentence he was kept in prison for an excessive
length of time before being transferred to a custodial clinic. He
relied on Brand v. the Netherlands, cited above.
The
applicant pointed out that he had completed his prison sentence while
the proceedings were still pending. This meant that by the time his
conviction and sentence became final, that is to say on 14 February
2006 when the Supreme Court dismissed his appeal on points of law, he
had been in detention on remand for over a year under an order first
issued by the ‘s Hertogenbosch Court of Appeal on 1
December 2004. Yet he was not transferred to a custodial clinic until
20 March 2007.
In
the applicant’s submission, the period of pre-placement
detention for which he was entitled to compensation therefore started
on the day on which the TBS order became final, not six months or
even four months later.
b. The Court’s assessment
In
Brand v. the Netherlands, cited above, §§ 58-65, the
Court held as follows (case-law and paragraph references omitted):
“58. The Court reiterates that Article
5 § 1 of the Convention contains a list of permissible grounds
of deprivation of liberty that is exhaustive. However, the
applicability of one ground does not necessarily preclude that of
another; a detention may, depending on the circumstances, be
justified under more than one sub-paragraph (...).
59. The Court observes that in the instant
case the applicant’s deprivation of liberty was based on the
judgment of the ‘s-Hertogenbosch Regional Court of 23 June 1994
whereby the applicant was convicted of robbery resulting in grievous
bodily harm, and was given a prison sentence as well as a TBS order.
This order, being initially valid for two years and comprising
confinement in a custodial clinic, took effect on 10 October
1994. Although the applicant had served his prison sentence on that
date, the subsequent period of his deprivation of liberty remained
covered by the judgment of 23 June 1994. Accordingly, the applicant’s
detention between 10 October 1994 and 10 October 1996 falls within
the scope of both sub-paragraphs (a) and (e) of Article 5 § 1 of
the Convention.
60. It must therefore be established whether
the applicant’s pre-placement detention between 10 October 1994
and 10 April 1995 was ‘in accordance with a procedure
prescribed by law’ and ‘lawful’ within the meaning
of Article 5 § 1 of the Convention. The Convention here
essentially refers back to national law and states the obligation to
conform to the substantive and procedural rules thereof. Reiterating
that it is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law (...), the Court
accepts, in the light of the Supreme Court’s judgment of 5 June
1998 and the judgment of the Amsterdam Court of Appeal of 25 February
1999, that the applicant’s pre-placement detention during the
period under consideration was lawful under domestic law.
61. However, for the purposes of Article 5 of
the Convention, the lawfulness under domestic law of the applicant’s
pre-placement detention is not in itself decisive. It must also be
established that his pre-placement detention during the relevant
period was in conformity with the purpose of Article 5 § 1 of
the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion (...).
62. Although it is true that the Court has
held in the past that there must be some relationship between the
ground of permitted deprivation of liberty relied on and the place
and conditions of detention, and that, in principle, the ‘detention’
of a person as a mental health patient will only be ‘lawful’
for the purposes of sub-paragraph (e) of paragraph 1 if effected in a
hospital, clinic or other appropriate institution (...), the Court,
in the circumstances of the present case, cannot accept the
applicant’s argument that the failure to admit him to a
custodial clinic on 10 October 1994 rendered his detention after that
date automatically unlawful under Article 5 § 1 of the
Convention.
63. In this connection, the Court considers
in the first place that – given the difference between a prison
sentence, which has a punitive character, and a TBS order, which is
of a non-punitive nature – it cannot, as such, be regarded as
contrary to Article 5 § 1 of the Convention to commence the
procedure for selecting the most appropriate custodial clinic (...)
only after the TBS order has taken effect.
64. The Court further considers that, once
this selection procedure has been completed, it would be unrealistic
and too rigid an approach to expect the authorities to ensure that a
place is immediately available in the selected custodial clinic. It
agrees with the domestic courts that, for reasons linked to the
efficient management of public funds, a certain friction between
available and required capacity in custodial clinics is inevitable
and must be regarded as acceptable.
65. Consequently, a reasonable balance must
be struck between the competing interests involved. On this point,
reiterating the importance of Article 5 in the Convention system, the
Court is of the opinion that in striking this balance particular
weight should be given to the applicant’s right to liberty. A
significant delay in admission to a custodial clinic and thus the
beginning of the treatment of the person concerned will obviously
affect the prospects of the treatment’s success within the
statutory two-year time-frame for the initial validity of a TBS
order. Moreover, the chances of having to prolong the validity of the
TBS order will, correspondingly, be increased.
66. The Court cannot find that, in the
circumstances of the present case, a reasonable balance was struck.
Bearing in mind that the problem of a structural lack of capacity in
custodial clinics had been identified by the Netherlands authorities
as early as 1986, and having found no indication in the instant case
that, at the material time, the authorities were faced with an
exceptional and unforeseen situation, the Court is of the opinion
that even a delay of six months in the admission of a person to a
custodial clinic cannot be regarded as acceptable. To hold otherwise
would entail a serious weakening of the fundamental right to liberty
to the detriment of the person concerned and thus impair the very
essence of the right protected by Article 5 of the Convention.”
The
Court finds no material difference between the present case and
Brand. It therefore notes that the TBS order imposed on the
applicant became final and enforceable on 14 February 2006. The
applicant was admitted to a custodial clinic on 20 March 2007, that
is one year, one month and six days later. Such a time lapse cannot
be considered acceptable.
There
has therefore been a violation of Article 5 § 1.
B. Article 5 § 4 of the Convention
The Court would first reiterate that it is master of
the characterisation to be given in law to the facts of the case. It
is not bound by the characterisation given by the applicant or the
Government. By virtue of the iura novit curia principle, it
has, for example, considered of its own motion complaints under
Articles or paragraphs not relied on by the parties and even under a
provision in respect of which the European Commission of Human Rights
had declared the complaint to be inadmissible while declaring it
admissible under a different one. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments
relied on (see, among other authorities, Handyside v. the United
Kingdom, 7 December 1976, § 41, Series A no. 24;
Powell and Rayner v. the United Kingdom, 21 February 1990,
§ 29, Series A no. 172; Guerra and Others v. Italy,
19 February 1998, § 44, Reports of Judgments and Decisions
1998 I; and as a recent authority, Scoppola v. Italy (no.
2) [GC], no. 10249/03, § 54, ECHR 2009 ...).
Taking
its own view of the facts of the case, the Court inferred from the
application the complaint that the applicant did not have access to a
procedure by which the lawfulness of his detention could be decided
speedily by a court and his release ordered if the detention was not
lawful. Of its own motion, the Court raised the question whether
there had been a violation of Article 5 § 4 of the Convention.
The
Government, in their observations, submitted that the lawfulness of
the applicant’s detention had been reviewed on a number of
occasions by independent and impartial tribunals that could properly
be called “courts” for the purposes of Article 5 § 4
of the Convention. They had examined the applicant on numerous
occasions and his counsel had plenty of opportunities further to
substantiate his arguments.
Furthermore,
the Government submitted that the applicant suffered from Asperger’s
syndrome and obsessive compulsive disorder. Although Asperger’s
syndrome was a congenital condition and incurable, the reports on the
applicant’s mental state suggested that his behavioural
problems could be made manageable. This was important, since, as was
commonly the case with Asperger’s syndrome, any loss of
structure in the applicant’s life could lead to aggression.
This in turn could lead to a heightened risk of the applicant’s
reoffending. Given the nature of the applicant’s disorders, the
applicant’s detention had been reviewed with sufficient
frequency. In view of the applicant’s diagnosis, further
assessments in the intervening period would have served no purpose.
The
applicant did not contest the above statement by the Government.
Article 5 § 4 requires that the procedures
followed have a judicial character and give to the individual
concerned guarantees appropriate to the kind of deprivation of
liberty in question; in order to determine whether a proceeding
provides adequate guarantees, regard must be had to the particular
nature of the circumstances in which such proceeding takes place (see
Megyeri v. Germany, judgment of 12 May 1992, Series A no.
237-A, p. 11, § 22; and Nakach v. the Netherlands
(dec), cited above).
The
Court takes note of the Government’s observations.
In
so far, therefore, as the application comprises a complaint under
Article 5 § 4 of the Convention, it is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that his continued detention, i.e. after he had
served the prison sentence imposed on him, amounted to treatment
prohibited by Article 3 of the Convention which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
It
does not appear that this grievance was ever aired before any
competent domestic authority. It follows that this complaint must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant further complained under Article 6 of the Convention that,
in the criminal proceedings taken against him, he did not have a fair
hearing in that the TBS order had been unjustly imposed on him. In so
far as relevant, Article 6 provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
The
Court notes that the final domestic decision within the meaning of
Article 35 § 1 of the Convention has been given by the Supreme
Court on 14 February 2006, which is more than six months before the
date on which this complaint was submitted to the Court.
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
IV. 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. Damage
The
applicant asked the Court to make an award in respect of
non-pecuniary damage. He left the amount to the Court’s
discretion.
The
Government, referring to the decision striking out Rompa v. the
Netherlands (no. 9028/05, 1 July 2008), asked the Court to base
its award on the domestic rate.
The Court considers the sum offered by the Government in their
unilateral declaration appropriate to the violation found. Ruling on
an equitable basis, it awards the applicant EUR 3,525 under this
head, plus any tax that may be chargeable.
B. 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
Declares, unanimously, the application
admissible in so far as it relates to Article 5 § 1 of the
Convention and, by a majority, inadmissible for the remainder;
Holds unanimously that there has been a
violation of Article 5 § 1 of the Convention;
Holds by six votes to one
(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 3,525
(three thousand five hundred and twenty-five 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.
Done in English, and notified in writing on 5 April 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge
Gyulumyan is annexed to this judgment.
J.C.M.
S.Q.
PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN
I
agree with the majority that there has been a violation of Article 5
§ 1 of the Convention, but I regret that I am not able to fully
share its decision on the just satisfaction in respect of
non-pecuniary damage.
I
consider that the sum awarded in the present case for non-pecuniary
damage is not appropriate to the violation found and does not take
into account the circumstances of the case.
The
Court has awarded the applicant the same amount that was proposed by
the Government in their unilateral declaration. However, in rejecting
the Government’s request to strike the application out of its
list of cases under Article 37, the Court in paragraph 39
acknowledges that “the unilateral declaration only addresses
part of the applicant’s complaint under Article 5 of the
Convention, namely the duration of the applicant’s
pre-placement detention, and not the remaining aspects of his
complaint, namely the lawfulness under Article 5 of the Convention of
his detention after he had served the prison sentence imposed on
him.”
In
the light of the decision adopted by the majority, I have difficulty
understanding why the Chamber did not accept the Government’s
unilateral declaration.
