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STS v. THE NETHERLANDS - 277/05 [2011] ECHR 907 (7 June 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/907.html
Cite as:
(2012) 54 EHRR 35,
54 EHRR 35,
[2011] ECHR 907
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THIRD
SECTION
CASE OF S.T.S. v. THE NETHERLANDS
(Application
no. 277/05)
JUDGMENT
STRASBOURG
7 June
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 S.T.S. v. the
Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The case originated in an application (no. 277/05)
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 S.T.S. (“the applicant”), on 21 December
2004. The President of the Chamber decided to grant the applicant
anonymity (Rule 47 § 3 of the Rules of Court).
The
applicant was represented by Mr K.B. Spoelstra, a lawyer practising
in Groningen. The Netherlands Government (“the Government”)
were represented by their Agent, Mr R.A.A. Böcker, of the
Ministry for Foreign Affairs.
The
applicant alleged, in particular, that he had been the victim of a
violation of Article 5 § 4 of the Convention in that judicial
proceedings for reviewing the legality of his detention had been so
protracted as to render them devoid of purpose.
On
28 September 2007 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (former Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background to the case
The
applicant was born in 1988 and lives in Groningen.
The
applicant’s parents’ relationship ended in 1990. The
applicant’s mother was invested with parental authority.
In
2001 the Child Care and Protection Board (Raad voor de
Kinderbescherming) investigated the applicant’s situation
because he had been displaying severe behavioural difficulties, had
dropped out of school, had committed a number of crimes and appeared
disinclined to acknowledge authority in any shape or form.
By a decision of 9 October 2002, the Juvenile Judge of
the Groningen Regional Court (kinderrechter bij de rechtbank)
placed the applicant under the supervision (ondertoezichtstelling)
of the Groningen Juvenile Care Foundation (Stichting Jeugdzorg;
“the Foundation”) for a period of one year and also
issued an authorisation to the Foundation for the applicant’s
custodial placement in
a confined institution for treatment (gesloten
uithuisplaatsing) for a
period of three months. On 14 November 2002 the applicant was
admitted to Juvenile Institution “Het
Poortje”, a
confined institution for treatment, in order to be observed and
psychologically examined.
On
8 January, 6 March and 3 April 2003 the Juvenile Judge
prolonged the authorisation for the applicant’s placement in a
confined institution. The last such prolongation was set to expire on
9 October 2003 – one full year after the first decision.
2. The prolongation of the authorisation for the
applicant’s custodial placement in a confined setting
On
1 August 2003 the Juvenile Judge received the Foundation’s
request (dated 29 July) for a prolongation of the authorisation for
the applicant’s custodial placement for the duration of the
supervision order. Reference was made to a report containing the
results of an examination of the applicant’s
personality by a remedial educationalist/psychologist that had been
issued on 1 February 2003.
On
10 September 2003 a hearing was held before the Juvenile Judge. The
applicant stated that he did not want to be placed in a
confined institution for treatment and that his behaviour had
improved. On behalf of the Foundation it was submitted that the
applicant had recently been placed in Rentray, a confined
orthopsychiatric institution for persons with severe behavioural
difficulties, that the intended treatment would take one to one and a
half years, and that it was out of the question that the applicant
would be able to live with his father or his grandmother as he had
indicated he wished to do. The Juvenile Judge stated that the report
about the applicant’s personality was clear and that a relapse,
which was considered to be a real possibility, had to be prevented at
all cost. Treatment was necessary, also in view of his age, and he
had already been admitted to Rentray.
On
17 September 2003 the Juvenile Judge decided to prolong the period of
supervision for one year, effective from 9 October 2003, and to
prolong the authorisation issued to the Foundation for the
applicant’s custodial placement in a confined institution for
treatment for the duration of the supervision order.
On
17 October 2003 the applicant lodged an appeal with the
Leeuwarden Court of Appeal against the decision of 17 September 2003,
in so far as it concerned the custodial placement.
A
hearing was held on 11 December 2003. At the hearing the applicant’s
counsel, emphasising that the case was not a particularly complicated
one, requested the applicant’s immediate release as the case at
issue had not been dealt with speedily within the meaning of Article
5 § 4 of the Convention. After having deliberated on this
matter, the Court of Appeal considered that there appeared to be
insufficient grounds to release the applicant immediately;
nevertheless, a decision would be rendered as soon as possible and at
the latest on 19 December 2003.
On
19 December 2003 the Court of Appeal quashed the decision of
17 September 2003 and prolonged until 1 May 2004, i.e. for six
months rather than one year, the authorisation issued to the
Foundation for the applicant’s custodial placement
in a confined institution for treatment. In this respect the
court ruled:
“37. Having regard to the far-reaching
character of [the] measure – involving as it does a deprivation
of liberty –, it should not last longer than strictly
necessary. On 14 November 2002 [the applicant] was placed in a
confined institution for observation and diagnosis and on 26 August
2003 he was placed there for treatment. Having regard inter alia
to the ... positive development in [the applicant’s] behaviour
and to the individual treatment meeting which will take place in
April 2004, the court perceives cause to prolong the authorisation
for [the applicant’s] custodial placement in a confined setting
for treatment until 1 May 2004.”
As
regards Article 5 § 4 of the Convention the Court of Appeal held
as follows:
“7. In answering the question whether
the case was decided sufficiently speedily, the court is of the
opinion that the nature of the custodial measure at issue, the
duration of that measure and the relation between the duration of the
measure and the (total) time that has elapsed between the moment the
appeal was lodged and the date on which the appeal was decided upon
should also be taken into consideration.
8. In the present case a measure involving a
deprivation of liberty was imposed in the framework of a child
protection measure.
9. The imposed ... measure consists of the
authorisation for [the applicant’s] custodial placement in a
confined setting being prolonged for the duration of one year,
effective from 9 October 2003.
10. [The applicant] lodged an appeal against
that decision on 17 October 2003.
11. By letter of 20 October 2003 the court
invited the Foundation and [the applicant’s] father and mother
to file their submissions by 10 November 2003 at the latest. It is to
be noted, also in view of the custodial character of the measure,
that these interested parties have been granted a shorter period of
time to lodge observations than is customary in family law cases.
After all, pursuant to section 7 of the Uniform Regulations for
petition-based proceedings in family law cases (Uniform Reglement
voor rekestprocedures in familiezaken) the usual period within
which observations are to be lodged is six weeks.
12. Subsequently, by letters of 11 November
2003 the parties were summoned to appear at the court’s hearing
of 11 December 2003 and the decision has been scheduled for today.
13. In view of the aforementioned elements
and the way they are related to each other, the court concludes that
in the present case the decision can still be said to have been taken
speedily within the meaning of Article 5 § 4 of the Convention,
and that provision has therefore not been violated.”
On
13 January 2004 the applicant lodged an appeal on points of law
(beroep in cassatie) with the Supreme Court (Hoge Raad).
He complained explicitly of a breach of Article 5 § 4 of the
Convention in that the Court of Appeal had been wrong to have had
regard only to the period between 17 October 2003, the date on
which the appeal had been lodged, and 19 December 2003, the date
of the decision. He argued that the court should have included the
period from 14 November 2002 until 17 October 2003 during which time
he had also been deprived of his liberty, as well as the fact that
(at that time) he had been a minor below the age of 16. He further
claimed that the considerations of the Court of Appeal relating to
the shorter time than usual for the submission of observations could
not warrant the conclusion that the decision had been taken speedily,
nor were they relevant in that context. The statement of points of
appeal was lodged by a member of the Supreme Court bar, a lawyer
practising in The Hague.
On
10 September 2004 an Advocate General (advocaat-generaal) to
the Supreme Court, acting as deputy to the Procurator General
(procureur generaal), submitted an advisory opinion. She
considered that as the period for which the authorisation had been
granted had in the meantime lapsed, the applicant no longer had an
interest in the appeal and it therefore ought to be declared
inadmissible in accordance with the established case-law of the
Supreme Court. Nevertheless, with a view to developing the law, the
Advocate General addressed the merits of the appeal. Reference was
made to the Court’s judgments and decision in the cases of
Sanchez-Reisse v. Switzerland (judgment of 21 October 1986,
Series A no. 107), E. v. Norway (judgment of 29 August 1990,
Series A no. 181 A), Van der Velden v. the Netherlands
(dec.), no. 29514/05, ECHR 2006 ...); Navarra v. France
(judgment of 23 November 1993, Series A no. 273 B), and
Bouamar v. Belgium (judgment of 29 February 1988, Series A
no. 129). The Advocate General noted that the period between
17 October 2003, i.e. the date on which the appeal to the Court
of Appeal had been lodged, and the hearing before that court on 11
December 2003 had already lasted 54 days, and that a further eight
days had elapsed until the decision of 19 December 2003. However, the
entire procedure – from the first request for a prolongation of
the authorisation until the decision taken on appeal – had
lasted from 1 August 2003 until 19 December 2003, that is a period of
141 days. As to other circumstances that had to be taken into
consideration, such as the complexity of the case and the applicant’s
behaviour, the Advocate General pointed out that the prolongation at
issue was based on reports that had been issued before the start of
the proceedings in question and that the only delay that could be
attributed to the applicant concerned the time elapsed between the
decision of the Juvenile Judge of 17 September 2003 and the
lodging of the appeal on 17 October 2003. The Advocate General
concluded that, in her opinion, the decision of the Court of Appeal
had not been taken speedily within the meaning of Article 5 § 4.
The
applicant, through counsel, submitted a written response to the
Advocate General’s advisory opinion on 23 September 2004. He
argued that the lawfulness of the detention orders following on from
the original order depended on the lawfulness of the original order.
Furthermore, domestic law provided for an appeal to the Supreme Court
in cases such as the present; such an appeal could only be effective
if the Supreme Court declared the applicant’s appeal admissible
and ruled on its merits.
By
a final decision of 5 November 2004 the Supreme Court declared the
applicant’s appeal inadmissible for lack of interest, since the
authorisation at issue had already lapsed in the meantime.
3. Parallel proceedings after 19 December 2003 (second
set of proceedings)
On
29 April 2004, shortly before the day on which the Court of Appeal’s
order of 19 December 2003 was due to expire (i.e. 1 May 2004), the
Juvenile Judge of the Groningen Regional Court extended its validity
for four more weeks. It was extended for a further two months on 19
May 2004. The intention was to transfer the applicant to an open
setting during this time.
On
14 June 2004 the applicant was transferred to an open, i.e.
non custodial, unit within the Rentray institution. It appears
that the applicant absconded from this unit three times between July
and September 2004.
4. Further parallel and subsequent proceedings (third
set of proceedings)
On
6 October 2004 the Juvenile Judge gave a new supervision order and
authorised the applicant to be placed in a custodial institution for
a period of six months backdated to 30 September 2004. The applicant
and his mother appealed on 17 October and 4 November respectively.
On
8 December 2004 the Leeuwarden Court of Appeal, ruling on both
appeals, shortened the placement order to three months instead of six
on formal grounds. It dismissed an argument based on Article 5 §
4 of the Convention, holding that the proceedings had been
sufficiently speedy, and that anyway a finding of a violation of the
requirement of “speediness” would not ipso iure
have entitled the applicant to immediate release since such might
well have gone against his own best interests.
It
appears that the applicant remained in a secure institution until the
time he reached his majority, which was in mid-2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legislation
According
to Article 1:254 of the Civil Code (Burgerlijk Wetboek –
“CC”), the Juvenile Judge may, on the application of
inter alia the Child Care and Protection Board, order a minor
child’s placement under supervision of a family supervision
agency (gezinsvoogdij-instelling) within the meaning of
section 60 of the Juvenile Care Services Act (Wet op de
Jeugdhulpverlening), if the child is growing up under such
conditions that he or she is threatened with moral or physical ruin
(zedelijke of lichamelijke ondergang). Such an order may be
given for a maximum period of one year, but can be prolonged by a
maximum of one year at a time (Article 1:256 CC).
If
it is deemed necessary in the interest of the child’s care and
upbringing or for the purposes of an examination of the child’s
mental or physical health, the Juvenile Judge may further authorise a
custodial placement of the child (Article 1:261 § 1 CC). An
authorisation for a custodial placement in a confined institution can
only be prolonged if this is required on account of severe
behavioural difficulties of the minor concerned (Article 1:261 §
3 CC). Such an authorisation can only be given for a maximum period
of one year, with the possibility of subsequent prolongations for a
maximum of one year at a time (Article 1:262 § 1 CC).
An
appeal against decisions taken in petition-based proceedings,
including those of the Juvenile Judge, lies to the Court of Appeal
(Article 358 § 1 of the Code of Civil Procedure (Wetboek
van Burgerlijke Rechtsvordering – “CCP”)). The
time-limit for bringing such an appeal is three months from the date
of the decision (Article 358 § 2).
Pursuant
to Article 426 § 1 CCP, those who have participated in the
proceedings at first instance or at the appellate stage may lodge an
appeal on points of law with the Supreme Court within three months
from the date of the decision. Such an appeal is introduced by way of
a petition signed by a member of the Supreme Court bar (Article 426a
CCP). The Supreme Court shall decide after the Procurator General has
submitted a written advisory opinion within a time-limit set by the
Supreme Court itself (Article 429 § 1 CCP).
At
the relevant time, the Supreme Court bar was composed of all legal
practitioners who were members of the bar of The Hague and of them
alone (section 1 (2) of the Legal Profession Act (Advocatenwet)).
B. Case-law
It
is standing case-law of the Supreme Court to declare appeals on
points of law contesting the lawfulness of detention inadmissible if
the detention has ended, for whatever reason, by the time the Supreme
Court comes to consider the question. It did so, for example, in its
judgment of 7 October 1997, Nederlandse Jurisprudentie
(Netherlands Law Reports, “NJ”) 1998, no. 227.
The
Supreme Court confirmed this position in its judgment of 31 May 2005,
NJ 2005, no. 531, in which it declared inadmissible an appeal
on points of law lodged by a person committed to detention for twelve
days for failing to give evidence as a witness in court but who had
been released nearly eleven months earlier. Even so, the Supreme
Court saw fit to address the merits of the case obiter dictum,
considering that had the appeal been admissible, it would have failed
nonetheless.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant claimed to be a victim of a violation of Article 5 § 4
of the Convention, which reads as follows:
“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.”
The
Government denied this.
A. Speediness
1. Admissibility
a. The Government’s preliminary
objection
The
Government submitted a preliminary objection to the effect that the
applicant had failed to complain about the lack of speediness of the
proceedings before the Supreme Court. In their submission, the
applicant ought to have done so when responding to the Advocate
General’s advisory opinion; as it was, the letter of 23
September 2004 had been limited to the question of the
“effectiveness” of an appeal on points of law in the
event that the Supreme Court should decline to rule on the ground
that such an appeal had become devoid of purpose.
The
applicant pointed out that the order appealed against had already
expired on 1 May 2004, which in his submission meant that by
September 2004 the admissibility of his appeal on points of law
was in any case irretrievably compromised.
Although
a complaint to the Supreme Court would in theory have been possible,
the Government have failed to show that it could have made any
difference to the Supreme Court’s decision. Consequently the
Court is unconvinced that the “remedy” relied on by the
Government was “effective” for the purposes of Article 35
§ 1 of the Convention (compare Salah Sheekh v. the
Netherlands, no. 1948/04, § 123, ECHR 2007 I
(extracts)). Indeed, the Court is aware of at least one previous
decision of the Supreme Court to similar effect, which sufficiently
justifies serious doubts on this point (Venema v. the Netherlands,
no. 35731/97, §§ 47-49, ECHR 2002-X). It follows that the
preliminary objection must be rejected.
b. Conclusion as to 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
applicant complained under Article 5 § 4 of the Convention that
his appeal to the Leeuwarden Court of Appeal against the decision to
prolong the authorisation for his custodial placement and his further
appeal on points of law to the Supreme Court had not been determined
“speedily” as required by this provision.
a. Argument before the Court
The
applicant stated that he had lodged his release request with the
Leeuwarden Court of Appeal on 17 October 2003. There had been a
considerable lapse of time before the Court of Appeal held its
hearing, which it did on 11 December 2003, fifty-four days later.
Sixty-three days – that is, until 19 December 2003 – had
passed before the Court of Appeal gave its decision.
He
had lodged his appeal on points of law with the Supreme Court on 13
January 2004. The Supreme Court had given its decision only on
5 November 2004, that is 296 days later. Relying on the Court’s
earlier case-law, in particular Bouamar v. Belgium, 29
February 1988, Series A no. 129, which like his own case
concerned an adolescent detained in connection with personality
problems, he argued that such lapses of time could not be justified
in the light of Article 5 § 4 of the Convention.
The
Government took the view, differing in this respect from the Advocate
General (see paragraph 17 above), that the period to be considered
had begun only on 17 October 2003; it thus totalled only 63 days not
141. This they considered to have been reasonable. That much time had
been necessary for both parties to have the opportunity to present
their views and for the Court of Appeal to hold a hearing and reach a
carefully considered decision.
A
further lapse of time between the delivery of the Court of Appeal’s
decision and the introduction of the applicant’s appeal on
points of law was imputable to the applicant himself, not to the
respondent.
Finally,
the Government asked the Court to bear in mind that during the period
when the case was pending before the Supreme Court the question of
the applicant’s continued detention was examined by the
Juvenile Judge three times, namely on 29 April, 19 May and 6 October
2004 (see paragraphs 20 and 22 above); praying in aid Letellier v.
France, 26 June 1991, Series A no. 207, the Government
argued that the domestic courts could therefore not be considered to
have remained inactive.
b. The Court’s assessment
i. Applicable principles
The
following principles relevant to the case have been established in
the Court’s case-law:
Article 5 § 4,
in guaranteeing to detained persons a right to institute proceedings
to challenge the lawfulness of their deprivation of liberty, also
proclaims their right, following the institution of such
proceedings, to a speedy judicial decision concerning the lawfulness
of detention and ordering its termination if it proves unlawful
(see, among many other authorities, Van der Leer v. the
Netherlands, 21 February 1990, § 35, Series A no.
170 A; Musiał v. Poland [GC], no. 24557/94, § 43,
ECHR 1999 II; Baranowski v. Poland, no. 28358/95, §
68, ECHR 2000 III; Jablonski v. Poland, no. 33492/96, §
91, 21 December 2000; Kadem v. Malta, no. 55263/00, §
44, 9 January 2003; Sarban v. Moldova, no.
3456/05, § 118, 4 October 2005; more recently, Toma v.
Romania, no. 42716/02, § 74, 24 February 2009; and Mooren
v. Germany [GC], no. 11364/03, § 106, 9 July 2009).
Article 5 § 4
does not compel the Contracting Parties to set up more than one
level of jurisdiction for the examination of the lawfulness of
detention and for hearing applications for release; in principle,
the intervention of one organ satisfies Article 5 § 4, on
condition that the procedure followed has a judicial character and
gives to the individual concerned guarantees appropriate to the kind
of deprivation of liberty in question (Ječius v. Lithuania,
no. 34578/97, § 100, ECHR 2000 IX).
Nevertheless, a
State which offers a second level of jurisdiction must in principle
accord to the detainees the same guarantees on appeal as at first
instance (Toth v. Austria, 12 December 1991, § 84,
Series A no. 224; Navarra v. France, 23 November 1993, § 28,
Series A no. 273-B; Khudobin v. Russia, no. 59696/00, § 124,
ECHR 2006 ... (extracts)).
In order to
determine whether the requirement that a decision be given
“speedily” has been complied with, it is necessary to
effect an overall assessment where the proceedings were conducted at
more than one level of jurisdiction (compare Navarra, ibid.;
Mooren [GC], ibid.) It concerns, in particular, the
speediness of the review by the appellate body of a lower court’s
decision imposing a detention order (Khudobin, cited above, §
115).
The question whether
the right to a speedy decision has been respected must – as is
the case for the “reasonable time” requirement set out
in Articles 5 § 3 and 6 § 1 of the Convention – be
determined in the light of the circumstances of each case (see,
among other examples, Rehbock v. Slovenia, no. 29462/95, §
84, ECHR 2000-XII; G.B. v. Switzerland, no. 27426/95, §
33, 30 November 2000; M.B. v. Switzerland, no. 28256/95, §
37, 30 November 2000; and Kadem v. Malta, ibid.;
Mooren [GC], ibid.).
In making such an
assessment, the circumstances to be taken into account may include
the complexity of the proceedings, the conduct by the domestic
authorities and by the applicant and what was at stake for the
latter (compare G.B. v. Switzerland, cited above, §§
34-39, and M.B. v. Switzerland, cited above, §§
38-43).
ii. Application of these principles to the
present case
The
applicant, in his application, complains only of the lack of
speediness of the proceedings from the date on which he lodged his
appeal with the Court of Appeal, that is 17 October 2003. The Court
takes that as the starting date for its examination of the case.
α. Court of Appeal
It
took the Court of Appeal three days to set the parties a time-limit
for filing their written submissions, which was 10 November 2003 or
three weeks later. The Court of Appeal only held a hearing in the
case a full month after that, on 11 December 2003, by which time
fifty-five days had elapsed since the appeal had been introduced.
After the hearing, it needed a further eight days to deliver its
decision.
Given
the need for the Court of Appeal to gather information from a variety
of sources and allow a variety of parties to participate effectively
in the proceedings – including, in addition to the applicant
himself, his parents (see paragraph 15 above) – the Court
considers that this lapse, taken in isolation, does not raise an
issue of speediness for purposes of Article 5 § 4 in the
circumstances of the case.
β. Supreme Court
The
Supreme Court gave its decision on 5 November 2004, 294 days after
the applicant lodged his appeal on points of law. Such a lapse of
time appears in itself inordinate. The Government make no attempt to
explain it.
Whatever
the reasons for this delay, the Court reiterates that the Convention
requires the Contracting States to organise their legal systems so as
to enable the courts to comply with its various requirements. The
Court has often stated this rule in the context of Article 6 of the
Convention (see, as a recent example, Sürmeli v. Germany
[GC], no. 75529/01, § 129, ECHR 2006 VII) but it is no
less pertinent in the context of Article 5. It is incumbent on the
judicial authorities to make the necessary administrative
arrangements to ensure that urgent matters are dealt with speedily
and this is particularly necessary when the individual’s
personal liberty is at stake (E. v. Norway, 29 August
1990, § 66, Series A no. 181 A; see also, as more recent
authorities, G.B. v. Switzerland, § 38, and M.B. v.
Switzerland, § 42, both cited above).
The
Government argue that, as in Letellier (cited above), the
applicant’s detention was reviewed anew on several occasions
while the proceedings complained of were pending. The Court confines
itself to noting that in Letellier it declined to rule on the
alleged lack of speediness (loc. cit., § 56); moreover,
in that case there was no additional issue of effectiveness based on
the same facts, which in the present case there is as will be seen
below. The two cases are therefore, in these respects as in others,
dissimilar.
The
foregoing considerations lead the Court to conclude that there has
been a violation of Article 5 § 4 of the Convention in that the
lawfulness of the applicant’s detention was not decided
“speedily”.
B. Effectiveness
The
applicant further complained that the lack of expedition had deprived
the proceedings of their effectiveness, since it had led the Supreme
Court to declare his appeal on points of law inadmissible for lack of
interest.
1. Admissibility
a. Whether
the complaint is manifestly ill-founded
The
Government stated that the proceedings available to the applicant had
satisfied the requirement of effectiveness. The case had been heard
on 10 September 2003 by the Juvenile Judge of the Groningen Regional
Court, who had the power to order the applicant’s immediate
release upon finding his detention unlawful.
The
applicant responded that the Juvenile Judge’s ensuing decision
(of 17 September 2003) had not covered the entire period of his
custodial placement.
The
Court observes that the case before it concerns the lack of
effectiveness resulting from the protracted nature of the proceedings
before the Court of Appeal and especially the Supreme Court. Any
argument about the proceedings before the Juvenile Judge falls
outside the scope of the Court’s examination.
b. Conclusion as to admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, whether for the
reason given by the Government or any other. It further notes that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
a. Argument before the Court
The
applicant complained under Article 5 § 4 of the Convention that
no final decision on the lawfulness of his custodial placement was
ever given. The lapse of time after he had lodged his appeal on
points of law with the Supreme Court, which had lasted until many
months after the end of the validity of the order appealed against,
had been reason enough for the Supreme Court to declare his appeal on
points of law as lacking any interest.
The
Government argued that since the applicant’s deprivation had
been reviewed by a court several times in the interval the procedure
had been sufficiently effective.
b. The Court’s assessment
As
the Court held in McFarlane v. Ireland [GC], no. 31333/06,
§ 108, ECHR 2010 ..., in the context of the
“reasonable time” requirement posed by Article 6 § 1
(case-law references omitted):
“Article 13 of the Convention guarantees the
availability at national level of a remedy to enforce the substance
of Convention rights and freedoms in whatever form they may happen to
be secured in the domestic legal order. The effect of Article 13 is
thus to require the provision of a domestic remedy to deal with the
substance of an ‘arguable complaint’ under the Convention
and to grant appropriate relief (...).
The scope of a Contracting Party’s obligations
under Article 13 varies depending on the nature of the complaint.
However, the remedy required by Article 13 must be ‘effective’
in practice as well as in law (...). The term ‘effective’
means that the remedy must be adequate and accessible (...).
An effective remedy for delay in criminal proceedings
must, inter alia, operate without excessive delay and provide
an adequate level of compensation (...). Article 13 also
allows a State to choose between a remedy which can expedite pending
proceedings or an ex post facto remedy in damages for
delay that has already occurred. While the former is preferred as it
is preventative of delay, a compensatory remedy may be regarded as
effective when the proceedings have already been excessively long and
a preventative remedy did not exist (...).”
The
Court has recognised Article 5 § 4 as a lex specialis of
Article 13. Thus, it held in A. and Others v. the United
Kingdom [GC], no. 3455/05, § 202, ECHR 2009 ...
(case-law references omitted):
“Article 5 § 4 provides a lex
specialis in relation to the more general requirements of
Article 13 (...). It entitles an arrested or detained person to
institute proceedings bearing on the procedural and substantive
conditions which are essential for the ‘lawfulness’ of
his or her deprivation of liberty. The notion of ‘lawfulness’
under paragraph 4 of Article 5 has the same meaning as in paragraph
1, so that the arrested or detained person is entitled to a review of
the ‘lawfulness’ of his detention in the light not only
of the requirements of domestic law but also of the Convention, the
general principles embodied therein and the aim of the restrictions
permitted by Article 5 § 1. Article 5 § 4 does not
guarantee a right to judicial review of such a scope as to empower
the court, on all aspects of the case including questions of pure
expediency, to substitute its own discretion for that of the
decision-making authority. The review should, however, be wide enough
to bear on those conditions which are essential for the ‘lawful’
detention of a person according to Article 5 § 1 (...).
The reviewing ‘court’ must not have merely advisory
functions but must have the competence to ‘decide’ the
‘lawfulness’ of the detention and to order release if the
detention is unlawful (...).”
The
Court notes that the applicant’s appeal on points of law was
lodged with the Supreme Court just over three and a half months
before the expiry of the Court of Appeal’s six-month
authorisation for the applicant’s custodial placement. No
grounds have been stated why the Supreme Court could not reasonably
have been expected to give a decision within that time. Absent such
grounds, the Court cannot but find that the lack of a final decision
before the validity of the authorisation for the applicant’s
custodial placement expired was itself sufficient to deprive the
applicant’s appeal on points of law of its practical
effectiveness as a preventive or even reparative remedy (compare
Baranowski, cited above, § 76; and A. and Others v.
the United Kingdom, cited above, loc. cit.).
Furthermore,
in declaring the applicant’s appeal on points of law
inadmissible as having become devoid of interest the Supreme Court
deprived it of whatever further effect it might have had (compare
Bouamar, cited above, § 63). The Court would point out in
this connection that a former detainee may well have a legal interest
in the determination of the lawfulness of his or her detention even
after having been liberated. The issue can arise, for example, in
giving effect to the “enforceable right to compensation”
guaranteed by Article 5 § 5 of the Convention (compare
McFarlane, cited above, loc. cit.), when it may be
necessary to secure a judicial decision which will override any
presumption under domestic law that a detention order given by a
competent authority is per se lawful.
There
has therefore also been a violation of Article 5 § 4 of the
Convention in that the proceedings for deciding the lawfulness of the
applicant’s detention were not “effective”.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
Lastly,
the applicant complained of a violation of Article 6 § 1 of the
Convention in that the length of the proceedings before the Supreme
Court, having resulted in the finding that his appeal on points of
law had become devoid of purpose in the meantime, had deprived him of
effective access to that body.
The
Government were not invited to comment on this complaint and did not
do so of their own motion.
The
Court has considered this complaint under Article 5 § 4 of the
Convention. Even if it be assumed, for the sake of argument, that an
issue can arise under Article 6 § 1 in this, the Court sees no
need to consider it separately.
III. 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 claimed 40,000 euros (EUR) in respect of non pecuniary
damage. He argued that the Leeuwarden Court of Appeal ought to have
found Article 5 § 4 to have been violated and, as a consequence,
ordered his immediate release. He stated that this was what the
Leeuwarden Court of Appeal had in fact done in a different case.
The
Government considered the applicant’s claim unjustified.
In
a case like the present the basis for the Court’s examination
of the applicant’s claim can only be the situation that would
have obtained had the violation not taken place, not the situation
that would have obtained had the domestic courts afforded redress
under domestic law. The violation found in the present judgment lies
in the lack of speediness and effectiveness of the proceedings before
the Supreme Court; the Court cannot find it established that the
Supreme Court would have ordered the applicant released had its
decision been given any more speedily (E. v. Norway, cited
above, § 70; compare also Nikolova v. Bulgaria [GC], no.
31195/96, § 76, ECHR 1999 II; H.L. v. the United
Kingdom, no. 45508/99, §§ 148-49, ECHR 2004 IX;
Fodale v. Italy, no. 70148/01, § 50, ECHR 2006 VII).
Nevertheless, the Court considers that the applicant has suffered
non-pecuniary damage that cannot be made good merely by the finding
of a violation of the Convention (compare Hutchison Reid v. the
United Kingdom, no. 50272/99, § 87, ECHR 2003 IV;
Kolanis v. the United Kingdom, no. 517/02, § 86, ECHR
2005 V; Mooren [GC], cited above, § 130).
Deciding on an equitable basis, the Court awards the applicant
EUR 2,000 under this head.
B. Costs and expenses
The
applicant also claimed as “reasonable” a sum of EUR 3,500
for “legal expenses”. He did not specify these or submit
any corroborating documents.
The
Government asked the Court to dismiss this claim as unsubstantiated.
According
to the Court’s consistent case-law, an applicant is entitled to
the reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum; furthermore, legal costs are only
recoverable in so far as they relate to the violation found (see, as
recent authorities among many others, Kafkaris v. Cyprus [GC],
no. 21906/04, § 176, ECHR 2008 ...; Salduz v.
Turkey [GC], no. 36391/02, § 78, 27 November 2008;
Mooren [GC], cited above, § 134; Micallef v. Malta
[GC], no. 17056/06, § 115, ECHR
2009 ...; Gäfgen v. Germany [GC], no. 22978/05,
§ 196, ECHR 2010 ...; Sanoma Uitgevers B.V. v. the
Netherlands [GC], no. 38224/03, § 109, ECHR 2010 ...;
and M.S.S. v. Belgium and Greece [GC], no. 30696/09,
§ 418, 21 January 2011).
In
the present case, all pertinent information is lacking. The Court
therefore rejects the applicant’s claim under this head in its
entirety.
C. 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 complaints concerning Article 5
§ 4 of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 4 of the Convention in that the lawfulness of the
applicant’s detention was not decided “speedily”;
Holds that there has been a violation of Article
5 § 4 of the Convention in that the proceedings for deciding the
lawfulness of the applicant’s detention were not “effective”;
Holds that it is not necessary to examine the
applicant’s complaint under Article 6 § 1 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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
