CASE OF NAKACH v. THE NETHERLANDS
Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
David Thór Björgvinsson
7. The applicant, Mr Bensaid Nakach, is a Moroccan national, who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre “Veldzicht” in Balkbrug, Netherlands; in July 2002 he was transferred to the secure institution “De Kijvelanden” in Poortugaal, near Rotterdam, Netherlands. 8. On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived. 9. On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution. 10. On 10 October 1995 the 's-Hertogenbosch Court of Appeal upheld the judgment of the Regional Court. 11. The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996. 12. The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date. 13. The placement order was prolonged for an additional two years in September 1998. 14. On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years. 15. The applicant appealed to the Arnhem Court of Appeal (gerechtshof). 16. A hearing was held on 9 April 2001. The Government state that the registrar (griffier) took notes and that these were kept in the case file. 17. The Court of Appeal gave its decision on 23 April 2001; it found that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety and accordingly upheld the decision of the Breda Regional Court. Summaries of an expert report and of statements made at the hearing by an expert and by the applicant's counsel are contained in this decision; they cover approximately a page and a half. 18. On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April. 19. A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage: “In reply to your request of 28 June last I must inform you that no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal. The reason is that no ordinary remedy lies against the decisions concerned and the workload of the Court of Appeal does not admit of structural activities 'just to fill the archives' (voor het archief). For that reason, also, the decisions in question tend to render the statements made more extensively than would be the case if in fact an official record were prepared (in addition).” 20. A person who has been found guilty of certain serious crimes and who, at the time of committing the offence, suffered from a mental deficiency or derangement may be placed at the Government's disposal if required in the interests of the safety of others or, more generally, in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall be confined in a secure institution in the interests of public safety (Article 37b § 1). 21. According to Article 38d of the Criminal Code, the person concerned shall be placed at the disposal of the Government for an initial period of two years which may be prolonged, 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). 22. A hearing shall be held in public by the review chamber (raadkamer) of the Regional Court (Article 509m § 1). 23. An appeal against the decision of the Regional Court lies to the Arnhem Court of Appeal (Article 509v § 1). 24. The Court of Appeal's decision, which shall contain the specific reasons underlying it, is final; no ordinary legal remedy is available to challenge it (Article 509x § 2). 25. The provisions of the Code of Criminal Procedure prescribing the content of the review chamber's decisions and the official record of its hearings are the following: “1. The decision taken by the review chamber shall be reasoned. If it is laid down that the hearing shall be public, the decision shall be pronounced publicly. 2. The decision shall state the names of the judges of the chamber (college) which gave it and the date on which it was given. It shall be signed by the president and the registrar who attended the hearing. 3. If the president is prevented from signing, another judge of the review chamber shall sign. If the registrar is prevented from signing, this shall be mentioned in the decision. 4. Unless otherwise provided, the decision shall be transmitted to the suspect and other participants in the proceedings without delay. ...” “1. The registrar shall prepare an official record of the hearing by the review chamber, which shall contain the summary content (den zakelijken inhoud) of the statements made and of any further events that have occurred at that hearing. 2. If a suspect, a witness or expert, or a suspect's counsel or a lawyer desires any statement to be recorded in his own words, that shall be done as far a possible in so far as the statement does not exceed reasonable limits. 3. The official record shall be finalised (vastgesteld) by the president or one of the other judges of the review chamber and the registrar [together] and signed as soon as possible after the end of the hearing. Should the registrar be prevented, this shall be done without his co-operation and the fact of his having been thus prevented shall be mentioned at the end of the official record. 4. The official record shall be added to the case file together with the decision and any other documents submitted during the hearing.” 26. In a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, the Supreme Court declared null and void a decision of a trial court because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record. 27. In two other judgments, delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) respectively, decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held.