EHRM, 05-04-2011, nr. 6051/07

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.

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.

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).

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:

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 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:

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.

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.

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.