CASE OF ÖZÇELİK v. THE NETHERLANDS
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1959 and lives in Enschede. 6. On 21 May 2010 the applicant was convicted of shoplifting. The Almelo Regional Court (rechtbank) imposed the measure of placement in a Persistent Offenders Institution (inrichting voor stelselmatige daders) for the duration of two years on him. It took into account the statements of different police officers and probation officers who had had direct contact with the applicant. From these statements it appeared that the applicant was a drug addict who would not voluntarily cooperate with treatment plans. The Regional Court further decided that the measure would be reviewed six months from the date the judgment became final (5 June 2010). 7. On 1 December 2010 the Regional Court reviewed the measure and decided not to terminate it, because it was deemed that there was still a high risk of the applicant reoffending. The applicant appealed against this decision on 6 December 2010, but on 19 April 2011 the Arnhem Court of Appeal (gerechtshof) dismissed the appeal. 8. On 19 May 2011 G.D., the applicant’s personal case officer, issued a progress report about the applicant, containing, amongst other things, the following: “[The applicant] is currently residing in FPA De Cederborg. The placement is progressing reasonably well. (...) If the measure should be terminated, [the applicant] will immediately find himself in a situation where he has no income, housing or daily activities. The risk of reoffending is consequently high. To lower the risk of reoffending the measure should be continued.” 9. On 9 June 2011 the Regional Court decided to prolong the measure further, holding that there was a considerable likelihood that the applicant would reoffend after his release. 10. The applicant lodged an appeal against that decision on 15 June 2011. On 8 November 2011 counsel for the applicant made inquiries with the Court of Appeal about the progress of the appeal and requested that its examination be given priority. Prior to the hearing before the Court of Appeal, counsel for the applicant requested in a letter of 18 November 2011 that, for the benefit of the applicant, an interpreter be present who spoke Aramaic or Assyrian, and he gave the name of an interpreter who spoke the correct language. 11. On 12 December 2011 a hearing took place before the Court of Appeal. It appeared that the applicant was unable to understand the interpreter who spoke Assyrian. With the applicant’s agreement, the case was adjourned for a maximum period of three months to allow counsel for the applicant to put written questions to certain of the applicant’s counsellors. It was also determined that case officer G.D. should be heard as an expert witness and that an interpreter speaking Aramaic should be present at the next hearing. 12. After a period of three months had elapsed, counsel for the applicant inquired with the Court of Appeal into the progress of the proceedings on 13 March and again on 2 April 2012. The proceedings were resumed on 10 May 2012, when a hearing took place. On that occasion case officer G.D. declared the following: “[The applicant] is no longer addicted to substances. The risk of reoffending is maximally reduced at this moment. The parole board has made several attempts to include [the applicant] in a treatment plan, but unfortunately this has not been sufficiently achieved. The clinical features of [the applicant] play an important role in this, but Cederborg [the institution] could have signalled earlier that there were no further possibilities to treat [the applicant]. The measure has contributed to the protection of society since [the applicant] is no longer addicted, thus reducing the risk of him reoffending. [The applicant] is now residing in a halfway house and has been placed on the waiting list for sheltered accommodation.” 13. It would appear that sheltered accommodation became available for the applicant on 11 May 2012. 14. On 16 May 2012 the Court of Appeal delivered its decision, holding, amongst other things, the following: “No violation of Article 6 ECHR The Court of Appeal considers that in the present case it cannot be said that the appeal was dealt with speedily within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It took more than ten months after the appeal was lodged before it was dealt with on the merits. Unlike counsel [for the applicant], the court is of the opinion that the decision to accept that a violation of the Convention has occurred in itself constitutes sufficient satisfaction for the outrage to his sense of justice. Termination The Court of Appeal has held that the execution of the measure has not been sufficiently expeditious in all stages. The Court of Appeal deems that the difficult progress of the measure cannot only be attributed to [the applicant] and finds that FPA De Cederborg could have signalled the difficult progress of the measure earlier. Having regard to the fact that [the applicant] currently has accommodation where he can stay as well as a prospect of placement in appropriate sheltered accommodation where he can also stay if the measure is terminated, and the fact that partly due to this the risk that the termination of the measure will lead to endangerment, nuisance and degradation of society is small, the Court of Appeal considers that continuation of the measure is no longer necessary.”