BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
THIRD
SECTION
CASE OF SCHENKEL v. THE NETHERLANDS
(Application
no. 62015/00)
JUDGMENT
STRASBOURG
27 October
2005
FINAL
27/01/2006
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 Schenkel v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mrs M.
Tsatsa-Nikolovska,
Ms R. Jaeger,
Mr E. Myjer,
Mr David
Thór Björgvinsson, judges,
and Mr V. Berger,
Section Registrar,
Having
deliberated in private on 6 October 2005,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 62015/00) 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,
Egbert Schenkel (“the applicant”), on 31 August 2000.
- The
applicant, who had been granted legal aid, was represented by Mr G.P.
Hamer, a lawyer practising in Amsterdam. The Netherlands Government
(“the Government”) were represented by their Agents,
Mr R.A.A. Böcker and Mrs J. Schukking, of the Ministry of
Foreign Affairs.
- On
1 June 2004 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and stays in a custodial clinic in the
Netherlands.
- On
15 June 1996 the applicant was arrested and detained on remand on
suspicion of having attacked two persons. Criminal proceedings were
subsequently taken against him.
- In
its judgment of 21 October 1996, the Amsterdam Regional Court
(arrondissementsrechtbank) found the applicant guilty of
attempted homicide and assault. Finding further that at the material
time the applicant was suffering from an inadequate development and
pathological disturbance of his mental faculties, the Regional Court
concluded that he could not be held criminally responsible. However,
as he had been found guilty of two violent crimes in that he had
twice attacked a passer-by for no reason and had already been
convicted many times in the past of crimes of violence, and given
that expert reports had concluded that he was a potentially very
dangerous individual who would probably re-offend, the Regional Court
decided that the general safety of the public required that an order
for the applicant’s confinement in a custodial clinic
(terbeschikkingstelling met bevel tot verpleging van
overheidswege; “TBS order”) be imposed.
- On
5 November 1996, no appeal having been filed, this judgment became
final and the TBS order took effect. Pending his admission to a
custodial clinic, the applicant was held in pre-placement detention
in an ordinary remand centre (huis van bewaring).
- On
21 September 1998 the public prosecutor filed a request with the
Amsterdam Regional Court for a two year extension of the applicant’s
TBS order, which was due to expire on 5 November 1998.
- On
9 November 1998, following a hearing on that day and after having
noted the parties’ submissions and an expert opinion drawn up
on 4 September 1998, as required by Article 509o § 2 of the
Code of Criminal Procedure (Wetboek van Strafvordering;
“CCP”), recommending a two-year prolongation of the
applicant’s TBS order as the applicant’s condition had
remained the same as in 1996, the Amsterdam Regional Court decided to
extend this order for a further period of two years.
- On
8 December 1998, the Netherlands State and the applicant concluded an
amicable settlement agreement (vaststellingsovereenkomst) in
which the applicant waived all rights or claims relating to the time
spent in pre-placement detention in excess of six months and granted
the State a final discharge in this matter in exchange for financial
compensation according to specific modalities set out in this
agreement.
- On
16 November 1998 the applicant’s appeal against the decision of
9 November 1998 was recorded at the Registry of the Amsterdam
Regional Court. Pursuant to Article 509x § 1 of the CCP, such an
appeal must be determined as soon as possible (“zo spoedig
mogelijk”).
- On
25 March 1999 the applicant was admitted to a custodial clinic. In
accordance with the terms of the amicable settlement agreement of
8 December 1998, he was paid compensation in a total amount of
42,860 Netherlands guilders (“NLG”).
- On
29 October 1999, the applicant’s lawyer requested the Regional
Court to inform him of the date on which the applicant’s case
file had been transmitted to the Arnhem Court of Appeal
(gerechtshof). He sent reminders of this request to the
Regional Court on 23 November and 22 December 1999, and on 6
January 2000.
- By
letter of 18 April 2000, the applicant’s lawyer informed the
President of the Arnhem Court of Appeal that he had been informed by
the Regional Court’s Registry in a telephone conversation of
11 January 2000 that the applicant’s case file had not yet
been transmitted to the Court of Appeal and that the matter would be
looked into. He further informed the President that this case file
had apparently now reached the Court of Appeal.
- In
its decision of 22 May 2000, following a hearing held on 8 May
2000, the Arnhem Court of Appeal quashed the decision of 9 November
1998 and, on a different basis, decided to prolong the applicant’s
TBS order by two years. It rejected the applicant’s argument
that the public prosecutor’s request for prolongation should be
declared inadmissible or that the requested prolongation should be
mitigated on the ground that Articles 5 and 6 of the European
Convention on Human Rights had been violated. It held that there had
been an undesirable delay in processing the applicant’s appeal
and that this delay was imputable to the Amsterdam Regional Court
given its failure, apparently as a result of a mistake, to transmit
the applicant’s case file without delay to the Court of Appeal.
However, in view of the length of the delay, the nature of the TBS
order and weighing all relevant interests involved, the Court of
Appeal saw no reason to declare the public prosecutor’s request
inadmissible. In balancing all the relevant interests, the Court of
Appeal took into account, on the one hand, the applicant’s
interest in having a speedy decision and his right to be protected
against arbitrariness and, on the other, the interests of society in
a prolongation of the TBS order. As regards the latter consideration,
it had particular regard to the fact that the applicant still
required treatment and to the seriousness of the offences committed
by him on which basis the TBS order had been imposed. No further
appeal lay against this decision.
- On
29 August 2000, the applicant’s lawyer wrote to the Arnhem
Court of Appeal, requesting a copy of the official record of the
hearing of 8 May 2000.
- By
letter of 13 September 2000, the President of the bench of the Arnhem
Court of Appeal that had determined the applicant’s appeal
informed the applicant’s lawyer that, in cases like that of the
applicant’s, no formal record was drawn up of hearings, this
not being felt necessary as no appeal could be filed against such
rulings. However, the essence of what had been discussed during the
oral proceedings was reflected in the wording of the decision and not
only what had been decisive for the ruling. This had also been done
in the decision taken on the applicant’s appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- An
overview of the relevant domestic law and practice is set out in the
Court’s judgment in, respectively, the cases of Rutten v.
the Netherlands (no. 32605/96, §§ 18-30, 24 July 2001)
and Nakach v. the Netherlands (no. 5379/02, §§
20-27, 30 June 2005).
- Pursuant
to Article 93 of the Constitution (Grondwet), the Convention
forms a part of domestic law and, pursuant to Article 94 of the
Constitution, the provisions of the Convention take precedence over
domestic statutory rules in case of conflict.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 5 AND 6 OF THE
CONVENTION
- Relying
on Article 5 § 1 of the Convention, the applicant complained
that Articles 509t, 509u and 509x of the CCP which provisions
prescribe diligence in conducting proceedings on a request to extend
a TBS order, and Article 25 of the CCP which requires that an
official record be drawn up of hearings in camera, were not
respected in his case. From this it followed, in his submission, that
the prolongation of his TBS order had not been ordered “in
accordance with a procedure prescribed by law” as required by
Article 5 § 1. He further complained under
Article 5 § 4 that his appeal against this decision had not been
determined “speedily” as required by Article 5 § 4.
In relation to his complaint about the length of the appeal
proceedings, he further argued that the duration of his pre placement
detention should be regarded as an aggravating circumstance.
- Article
5, in so far as relevant, provides 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:
...
(e) the lawful detention of ... persons of
unsound mind ...
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 ...”
- The
applicant further complained that his appeal was not determined
within a reasonable time as required by Article 6 of the Convention,
which in its relevant part reads as follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a ... hearing
within a reasonable time by a ... tribunal ...”
A. Admissibility
- The Court notes that the application 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.
B. Merits
1. Article 5 § 1
a) The parties’ submissions
- The
Government submitted that the procedure on the prolongation of the
applicant’s TBS order was in accordance with domestic law. The
request for its prolongation was filed within the statutorily defined
time-limit, it was accompanied by the required advisory expert
opinion, it was determined by the Regional Court within the
statutorily defined time-limit, and this decision was immediately
served on the applicant. As regards the duration of the subsequent
appeal proceedings before the Arnhem Court of Appeal, the Government
pointed out that, in its decision of 22 May 2000, this court
acknowledged that the applicant’s appeal had not been
determined promptly in that there had been an undesirable delay in
the proceedings on appeal, but saw no reason, finding that the
applicant’s personal interests were outweighed by the public
interest in extending his TBS order, to declare inadmissible the
prosecution’s request to prolong the applicant’s
detention order on account of the delay in the appeal proceedings.
- The
Government further refuted the applicant’s claim that, in this
connection, the duration of his pre-placement detention should be
regarded as an aggravating factor. According to the Government, this
aspect could not be taken into account given the fact that this
matter had already been resolved by way of the amicable settlement
agreement of 8 December 1998 in which the applicant had been
granted compensation for the duration of his pre-placement detention
in excess of six months. Moreover, in this agreement the applicant
had waived all rights or claims in connection with the duration of
his pre-placement detention in excess of six months and had granted
the State a final discharge in this matter.
- The
Government admitted that, in practice and for reasons of procedural
economy, the Arnhem Court of Appeal usually did not draw up separate
official records in cases of this nature. Instead, a summary of what
was said by the person concerned or his counsel was incorporated in
the document containing the decision. The Government submitted that
this was sufficient to satisfy domestic law. In any event, they
argued, an official record in the form of a separate document would
have had no added value whatsoever for the applicant.
- The
applicant maintained that the prolongation of his TBS order was not
“in accordance with a procedure prescribed by law” within
the meaning of Article 5 § 1 in that his appeal was not
determined with the diligence required under Article 509x of the CCP.
As regards the duration of his pre placement detention, the
applicant failed to see why, by having been granted compensation for
the time spent by him in pre-placement detention, he would be barred
from raising the argument that he had not yet been admitted to a
custodial clinic when the prolongation of his TBS order was sought.
In his opinion, this circumstance was pertinent and should have been
taken into account by the domestic courts in their determination of
the request to extend his TBS order.
- The
applicant further maintained that Article 25 of the CCP was
disrespected by the Court of Appeal’s failure to draw up an
official record of the hearing. In his opinion, the statutory
obligation to do so was unambiguous and there was no legal rule in
domestic law allowing that no official record of a hearing be drawn
up. An official record of a hearing was, in his submission, a record
of what was said and done during a hearing, and was therefore
entirely different in nature from a judicial decision which followed
a hearing in time.
- In
the applicant’s submission, the Code of Criminal Procedure also
recognised the difference in principle between decisions and official
records of hearings and, on this point, he referred to a large number
of domestic legal provisions in support of this argument, as well as
a number of comments by learned authors, the drafting history of the
legal provision concerned and case-law of the Supreme Court.
- Finally,
the applicant argued that the importance of a separate official
record of the hearing lay in its character as a public record of
everything that was actually discussed at the hearing, perhaps
including matters which did not make their way into the eventual
decision.
b) The Court’s assessment
i. The proceedings on the prolongation of the
applicant’s TBS order
- The
Court considers it more appropriate to examine the question whether
the proceedings on the request to prolong the applicant’s TBS
order were conducted with the required diligence in the context of
its examination of the applicant’s complaint under Article 5 §
4 of the Convention.
ii. The failure to draw up an official record of the
hearing before the Arnhem Court of Appeal
- As
regards the failure by the Arnhem Court of Appeal to draw up an
official record of the hearing held on 8 May 2000, the Court recalls
that in its judgment of 30 June 2005 in the above-cited case of
Nakach v. the Netherlands it found that such a failure
disrespected the procedure prescribed by domestic law and, therefore,
in breach of Article 5 § 1 of the Convention (see §§
34-44). The Court sees no reason to distinguish the present case
from the Nakach case.
- There
has accordingly, as regards this part of the complaint, been a
violation of Article 5 § 1.
2. Article 5 § 4
a) The parties’ submissions
- The
Government, maintaining their argument that the issue of the time
spent by the applicant in pre-placement detention could not be taken
into account as an aggravating circumstance (see paragraph 25 above),
deferred to the Court’s discretion as whether the length of the
proceedings complained of was in accordance with Article 5 § 4.
- The
applicant maintained that the proceedings on the request to extend
his TBS order by two years were not conducted with the required
diligence under both domestic law and Article 5 § 4 of the
Convention.
b) The Court’s assessment
- The
Court recalls that in its judgment in the similar case of Rutten
v. the Netherlands (no. 32605/96, §§ 50-55, 24 July
2001) it found a breach of the speed requirement of Article 5 §
4 of the Convention where the Regional Court took two months and
seventeen days to issue its decision and the Court of Appeal took a
further three months to give judgment concerning the applicant’s
application for release from the secure institution where he was
receiving treatment.
- The
Court has found no reasons for holding that the proceedings before
the Amsterdam Regional Court on the request to extend the applicant’s
TBS order fell short of the applicable time-limits under domestic law
or of the required speed under Article 5 § 4. However, given the
subsequent delay of more than seventeen months in determining the
applicant’s appeal against the decision of the Amsterdam
Regional Court of 9 November 1998, the Court considers that this
delay cannot but lead to the same conclusion as in the above-cited
Rutten case. In so far as the applicant submits that, as
regards the delay in these appeal proceedings, the duration of his
pre-placement detention should be regarded as an aggravating
circumstance, the Court does not find it necessary to determine this
argument as the applicant concluded an amicable settlement agreement
with the respondent State in which he received financial compensation
for his pre-placement detention in excess of six months.
- There
has accordingly been a violation of Article 5 § 4.
3. Article 6
- The
Government submitted that, to the extent that Article 6 applied to
the proceedings at issue, they would also in this matter defer to the
Court’s discretion.
- The
applicant maintained that the proceedings on the request for a
prolongation of his TBS order had exceeded a reasonable time.
- The
Court considers that this complaint does not raise any issue not
already examined in the context of Article 5. Consequently, it does
not find it necessary to examine whether, in this case, there has
been a violation of Article 6 § 1.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed NLG 10,000 in respect of non-pecuniary damage. He
submitted, inter alia, that he had felt ignored and helpless,
and suffered mental stress from not having the prolongation request
determined in a diligent manner. He did not claim compensation for
pecuniary damage.
- The
Government considered that, if the Court were to find a violation of
the Convention, that decision would in itself constitute sufficient
satisfaction.
- The
Court accepts that, on account of the manner in which the proceedings
on his appeal were conducted, the applicant may have experienced
certain feelings of frustration but not to the extent of justifying
the award of compensation, also bearing in mind that he had already
been awarded compensation for the duration of his pre-placement
detention in excess of six months whereas he must have realised that,
pending his admission to a custodial clinic, an appeal against a
prolongation of his TBS order would – given the reasons
why it was imposed – in all likelihood not result in a
release from detention. It finds that, in the circumstances, the
finding of a violation of Article 5 §§ 1 and 4 constitutes
sufficient just satisfaction in respect of any non-pecuniary damage
which the applicant may have suffered.
B. Costs and expenses
- The
applicant also claimed 3,937.35 euros (EUR) for the costs and
expenses incurred before the Court.
- The
Government submitted that, if the Court were to find a violation of
the Convention, only costs that were actually and necessarily
incurred should be regarded as eligible for an award.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 3,937.35 minus the
amount of EUR 701 paid to the applicant under the Court’s legal
aid scheme.
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
- Declares the application admissible unanimously;
- Holds by six votes to one that there has been a
violation of Article 5 § 1 of the Convention;
- Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention;
- Holds unanimously that it is not necessary to
examine the complaint under Article 6 § 1 of the Convention;
- Holds unanimously that the finding of a
violation of Article 5 §§ 1 and 4 constitutes in itself
sufficient just satisfaction for any non-pecuniary damage sustained
by the applicant;
- Holds unanimously
(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 3,236.35
(three thousand two hundred and thirty-six euros and thirty-five
cents) in respect of costs and expenses;
(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 unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 October 2005, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
