AHACHAK AND OTHERS v. THE NETHERLANDS
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
1. The facts of the cases, as submitted by the applicants, may be summarised as follows. 2. Mr Mohamed Ahachak is a Moroccan national born in 1981. He is currently detained in a custodial clinic in Poortugaal (near Rotterdam), the Netherlands. He was represented by Mr J.C. de Goeij, a lawyer practising in Alkmaar. 3. On various dates in August and September 2002 Mr Ahachak forced shopkeepers at knifepoint to hand him money. 4. On 16 October 2003 the Court of Appeal (gerechtshof) of The Hague convicted Mr Ahachak on appeal of various counts of robbery with the threat of violence. It sentenced him to two years’ imprisonment and ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning: “These serious crimes, committed with the threat of violence, have had psychological consequences for the victims in addition to the pecuniary damage caused. Moreover, such crimes cause disquiet in society and increase feelings of insecurity.” 5. After an initial four-year period which ended no later than 2008, the TBS order was extended several more times. In 2012 it came up for biennial review once more (Article 38d § 2 of the Criminal Code (Wetboek van Strafrecht)). 6. On 10 July 2012 the Regional Court (rechtbank) of The Hague gave a decision extending the TBS order for a further two years. 7. Mr Ahachak appealed to the Arnhem Court of Appeal, which held a hearing on 17 December 2012. Mr Ahachak’s counsel, relying on this Court’s judgment in the case of Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, argued that since the judgment of 16 October 2003 made no mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” (Article 359 § 7 of the Code of Criminal Procedure (Wetboek van Strafvordering)), the duration of the TBS order could be no more than four years (Article 38e § 1 of the Criminal Code). 8. The Arnhem Court of Appeal gave its decision on 3 January 2013. It extended the TBS order by a further two years, reasoning as follows: “Contrary to the argument made by counsel, the Court of Appeal takes the view that the TBS order is not bound to any maximum duration, since ... in view of the conviction, the qualification and the reasoning on which the imposition of the measure is based, considered in context (in onderling verband en samenhang bezien), the offences in question were directed against, or endangered, the bodily inviolability of one or more persons.” 9. Mr Stephanus Maria Anna Hendrikus Janssen is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented by Mr D.W.H.M. Wolters, a lawyer practising in Hoofddorp. 10. On 5 March 2002 Mr Janssen started a fire in a lavatory in an office building by setting a towel alight with a burning cigarette. 11. On 24 September 2002 the Roermond Regional Court convicted Mr Janssen of arson endangering property and life. It sentenced him to seven months’ imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: “In setting the sentence, the Regional Court has considered, in particular, the seriousness of the fact found proven in relation to other criminal offences, in addition to the interest of enforcing compliance with standards and the circumstance that the accused ... has been convicted before. In addition, the Regional Court has considered the dangerousness (gevaarzettend karakter) of the fact found proven and the social unrest to which it has contributed.” and “The safety of others and the general safety of persons and goods require the imposition of a TBS order.” and “Since the safety of others than the accused and the general safety of persons and goods so require, the accused shall be confined in a custodial clinic.” 12. After an initial four-year period which ended no later than 2006, the TBS order was extended several more times. In 2012 it came up for biennial review once more. 13. On 12 October 2012 the Roermond Regional Court held a hearing. Mr Janssen’s counsel argued, among other things, that the duration of the TBS order was limited in time to four years since it had not been imposed for an offence “directed against, or endangering, the bodily inviolability of one or more persons”. 14. The Regional Court gave a decision on 26 October 2012 extending the TBS order for a further two years. Its reasoning included the following: “The Regional Court takes the view that the conviction and the qualification, together with the reasons given in sentencing, which refers to the ‘dangerousness of the fact found proven and the social unrest to which it has contributed’, unambiguously shows that the crime in question is of the type referred to in Article 359 § 7 of the Code of Criminal Procedure.” 15. On 21 February 2013 the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem (which by this time had succeeded the Arnhem Court of Appeal), having held a hearing on 7 February 2013, confirmed the decision of the Regional Court including its reasoning. 16. Mr Charles Ferdinand van Akerlaken is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented before the Court by Ms D.N. de Jonge and Mr T. de Bont, lawyers practising in Amsterdam. 17. In April 2001 Mr van Akerlaken induced the staff of a dispensing chemist’s to hand over medicine by banging his fist on the counter and threatening murder and arson. 18. On 7 July 2002 the Amsterdam Court of Appeal convicted Mr van Akerlaken on appeal of extortion and threatening lethal violence and arson. It sentenced him to 23 weeks’ imprisonment and imposed a TBS order with confinement in a custodial clinic. Its reasoning included the following: “By his behaviour and actions, the accused has caused the persons involved great fear. The facts set out above cause serious feelings of unrest and insecurity in society in general and retail staff in particular. Moreover, extortion causes nuisance and damage to victims.” 19. After an initial four-year period which ended no later than 2007, the TBS order was extended several more times. In 2012 it came up for biennial review once more. 20. On 7 December 2012 the Amsterdam Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” as referred to in Article 359 § 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended. 21. The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal. 22. Having held a hearing on 11 April 2013, the Court of Appeal gave a decision on 25 April 2013 extending the TBS order for a further year. Its reasoning included the following: “The Court of Appeal finds that the [applicant] was convicted by the judgment of the Amsterdam Court of Appeal of 7 October 2002 of: extortion; threatening lethal violence and arson. In view of the conviction, the qualification and the reasoning on which the sentence and the measure [i.e. the TBS order] is grounded, viewed in context, it is implicit in the judgment that the TBS order was given in connection with a crime of violence within the meaning of Article 38e § 1 of the Criminal Code, namely: extortion, involving non-verbal action by the [applicant] (banging a counter forcefully with his fist), with the intention to add force to the verbal threat, such action by its nature being aggressive towards the person so threatened. It cannot therefore be said that the possibility of an extension of the [TBS order] beyond four years could not reasonably be foreseen by [the applicant]. Unlike the Regional Court, the Court of Appeal therefore takes the view that the TBS order in this case is not limited in duration.” 23. Ms Mulki Mohamed Wehelie is a Somali national born in 1969. She is currently detained in a custodial clinic in Balkbrug. She was represented by Mr I. Vreeken, a lawyer practising in Zutphen. 24. In September 1997 Ms Wehelie removed her five-year-old son, who had been taken into public care, from the supervision of the child-care authorities by threatening social workers and a police officer with an object that had the appearance of a firearm but later turned out to be a gas alarm pistol. 25. On 21 October 1999 the Amsterdam Court of Appeal convicted Ms Wehelie on appeal of threatening the social workers and the police officer with a crime directed against their lives and removing a minor from the supervision of the person to whom the minor had been lawfully entrusted. It imposed a TBS order with confinement in a custodial clinic without an additional penal sentence. The judgment referred to, among other things, the threatening and frightening nature of the facts found proven. It included the following reasoning: “In view of the above findings, the Court of Appeal considers that the safety of others requires the imposition of a TBS order. Moreover, the safety of others requires the accused to be confined in a custodial clinic.” 26. After an initial four-year period which ended no later than 2003, the TBS order was extended several more times. 27. On 3 March 2011 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Jusititie) decided to impose an exclusion order (ongewenstverklaring) on Ms Wehelie pursuant to the Aliens Act 2000 (Vreemdelingenwet 2000). 28. In 2012 the TBS order came up for biennial review once more. 29. On 26 November 2012 the Utrecht Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence “directed against, or endangering, the bodily inviolability of one or more persons” as referred to in Article 359 § 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended. 30. The public prosecutor (officier van justitie) appealed to the Arnhem-Leeuwarden Court of Appeal. 31. Having held a hearing on 14 February 2013, that Court of Appeal, sitting in Arnhem, gave a decision on 7 March 2013. Overturning the decision of the Regional Court, it found in view of the reference in the sentencing judgment to the threatening and frightening nature of the facts found proven that the offence of which Ms Wehelie had been convicted was one “directed against, or endangering, the bodily inviolability of one or more persons” so that the TBS order was not limited in duration and could reasonably be expected to be extended beyond four years. However, it adjourned the case in order to seek certain information not relevant to the complaint before the Court from the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst) and the Ministry of Security and Justice (Ministerie van veiligheid en justitie). 32. On 4 July 2013, having obtained the information required and having held a fresh hearing in the meantime, the Court of Appeal gave a decision extending the TBS order by one year. 33. Ms Wehelie’s TBS order has since been extended for a further period of one year, by a decision given on 31 October 2013 by the Central Netherlands Regional Court (rechtbank Midden-Nederland, successor to the Utrecht Regional Court). 34. As relevant to the case, the Criminal Code provides as follows: “1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if: 1º the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, ... and 2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods. ... 4. In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.” 35. All applicants were found guilty of offences carrying a maximum sentence of four years or more. “1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...” “1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final. 2. Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.” “1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the bodily inviolability of one or more persons. 2. If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.” 36. As relevant to the case, the Code of Criminal Procedure provides as follows: “... 7. If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the bodily inviolability of one or more persons, the judgment shall so indicate, giving reasons. 8. All on pain of nullity.”