CASE OF S.T.S. v. THE NETHERLANDS
Remainder inadmissible;Violations of Art. 5-4;Non-pecuniary damage - award
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1988 and lives in Groningen. 6. The applicant’s parents’ relationship ended in 1990. The applicant’s mother was granted parental authority. 7. In 2001 the Child Care and Protection Board (Raad voor de Kinderbescherming) investigated the applicant’s situation because he had been displaying severe behavioural difficulties, had dropped out of school, had committed a number of offences and appeared disinclined to respect authority in any shape or form. 8. By a decision of 9 October 2002, the Juvenile Judge of the Groningen Regional Court (kinderrechter bij de rechtbank) placed the applicant under the supervision (ondertoezichtstelling) of the Groningen Juvenile Care Foundation (Stichting Jeugdzorg – “the Foundation”) for a period of one year and also issued an authorisation to the Foundation for the applicant’s custodial placement in a confined institution for treatment (gesloten uithuisplaatsing) for a period of three months. On 14 November 2002 the applicant was admitted to “Het Poortje” Juvenile Institution, a confined institution for treatment, in order to be observed and psychologically examined. 9. On 8 January, 6 March and 3 April 2003 the Juvenile Judge extended the authorisation for the applicant’s custodial placement in a confined institution. The last such extension was set to expire on 9 October 2003 – one full year after the first decision. 10. On 1 August 2003 the Juvenile Judge of the Groningen Regional Court received the Foundation’s request (dated 29 July) for a prolongation of the authorisation for the applicant’s custodial placement for the duration of the supervision order. Reference was made to a report containing the results of an examination of the applicant’s personality by a remedial educationalist/psychologist that had been issued on 1 February 2003. 11. On 10 September 2003 a hearing was held before the Juvenile Judge. The applicant stated that he did not want to be placed in a confined institution for treatment and that his behaviour had improved. On behalf of the Foundation it was submitted that the applicant had recently been placed at Rentray, a confined orthopsychiatric institution for persons with severe behavioural difficulties, that the intended treatment would take one to one and a half years, and that it was out of the question that the applicant would be able to live with his father or his grandmother as he had indicated he wished to do. The Juvenile Judge stated that the report on the applicant’s personality was clear and that a relapse, which was considered to be a real possibility, had to be prevented at all costs. Treatment was necessary, also in view of his age, and he had already been admitted to Rentray. 12. On 17 September 2003 the Juvenile Judge decided to extend the period of supervision for a further year, with effect from 9 October 2003, and to prolong the authorisation issued to the Foundation for the applicant’s custodial placement in a confined institution for treatment for the duration of the supervision order. 13. On 17 October 2003 the applicant lodged an appeal with the Leeuwarden Court of Appeal against the decision of 17 September 2003, in so far as it concerned the custodial placement. 14. A hearing was held on 11 December 2003. At the hearing the applicant’s counsel, emphasising that the case was not a particularly complicated one, requested the applicant’s immediate release as the case at issue had not been dealt with speedily within the meaning of Article 5 § 4 of the Convention. After having deliberated on this matter, the Court of Appeal considered that there appeared to be insufficient grounds to release the applicant immediately; nevertheless, a decision would be rendered as soon as possible and at the latest on 19 December 2003. 15. On 19 December 2003 the Court of Appeal quashed the decision of 17 September 2003 and extended until 1 May 2004, that is to say for six months rather than one year, the authorisation issued to the Foundation for the applicant’s custodial placement in a confined institution for treatment. In this connection the court ruled as follows: “37. Having regard to the far-reaching character of [the] measure – involving as it does a deprivation of liberty –, it should not last longer than strictly necessary. On 14 November 2002 [the applicant] was placed in a confined institution for observation and diagnosis and on 26 August 2003 he was placed there for treatment. Having regard, inter alia, to the ... positive development in [the applicant’s] behaviour and to the individual treatment meeting which will take place in April 2004, the court perceives cause to extend the authorisation for [the applicant’s] custodial placement in a confined setting for treatment until 1 May 2004.” As regards Article 5 § 4 of the Convention the Court of Appeal held as follows: “7. In answering the question whether the case was decided sufficiently speedily, the court is of the opinion that the nature of the custodial measure at issue, the duration of that measure and the relationship between the duration of the measure and the (total) time that has elapsed between the moment the appeal was lodged and the date on which the appeal was decided upon should also be taken into consideration. 8. In the present case a measure involving deprivation of liberty was imposed in the framework of a child protection measure. 9. The imposed ... measure consists of extending the authorisation for [the applicant’s] custodial placement in a confined setting for a duration of one year, with effect from 9 October 2003. 10. [The applicant] lodged an appeal against that decision on 17 October 2003. 11. In a letter of 20 October 2003, the court invited the Foundation and [the applicant’s] father and mother to file their submissions by 10 November 2003 at the latest. It is to be noted, also in view of the custodial character of the measure, that these interested parties have been granted a shorter period of time within which to lodge observations than is customary in family-law cases. After all, pursuant to section 7 of the Uniform Regulations for petition-based proceedings in family-law cases (Uniform Reglement voor rekestprocedures in familiezaken) the usual period within which observations are to be lodged is six weeks. 12. Subsequently, by letters of 11 November 2003, the parties were summoned to appear at the court’s hearing of 11 December 2003 and the decision has been scheduled for today. 13. In view of the above-mentioned elements and the way they are related to each other, the court concludes that in the present case the decision can still be said to have been taken speedily within the meaning of Article 5 § 4 of the Convention, and that this provision has therefore not been breached.” 16. On 13 January 2004 the applicant lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). He complained explicitly of a breach of Article 5 § 4 of the Convention in that the Court of Appeal had been wrong to have had regard only to the period between 17 October 2003, the date on which the appeal had been lodged, and 19 December 2003, the date of the decision. He argued that the court should have included the period from 14 November 2002 to 17 October 2003 during which time he had also been deprived of his liberty, as well as the fact that (at that time) he had been a minor below the age of 16. He further claimed that the considerations of the Court of Appeal relating to the shorter time than usual for the submission of observations could not warrant the conclusion that the decision had been taken speedily, nor were they relevant in that context. The statement of points of appeal was lodged by a member of the Supreme Court bar, a lawyer practising in The Hague. 17. On 10 September 2004 an Advocate-General (advocaat-generaal) to the Supreme Court, acting as deputy to the Procurator General (procureurgeneraal), submitted an advisory opinion. She considered that as the period for which the authorisation had been granted had in the meantime lapsed, the applicant no longer had an interest in the appeal and it therefore ought to be declared inadmissible in accordance with the established case-law of the Supreme Court. Nevertheless, with a view to developing the law, the Advocate-General addressed the merits of the appeal. Reference was made to the Court’s judgments and decision in the following cases: Sanchez-Reisse v. Switzerland (21 October 1986, Series A no. 107); E. v. Norway (29 August 1990, Series A no. 181A); Van der Velden v. the Netherlands ((dec.), no. 29514/05, ECHR 2006XV); Navarra v. France (23 November 1993, Series A no. 273B); and Bouamar v. Belgium (29 February 1988, Series A no. 129). The Advocate-General noted that the period between 17 October 2003, the date on which the appeal to the Court of Appeal had been lodged, and the hearing before that court on 11 December 2003 had already lasted 54 days, and that a further 8 days had elapsed until the decision of 19 December 2003. However, the entire procedure – from the first request for extension of the authorisation until the decision taken on appeal – had lasted from 1 August 2003 to 19 December 2003, that is a period of 141 days. As to other circumstances that had to be taken into consideration, such as the complexity of the case and the applicant’s behaviour, the Advocate-General pointed out that the extension at issue was based on reports that had been issued before the start of the proceedings in question and that the only delay that could be attributed to the applicant concerned the time that had elapsed between the decision of the Juvenile Judge of 17 September 2003 and the lodging of the appeal on 17 October 2003. The Advocate-General concluded that, in her opinion, the decision of the Court of Appeal had not been taken speedily within the meaning of Article 5 § 4 of the Convention. 18. The applicant, through counsel, submitted a written response to the Advocate-General’s advisory opinion on 23 September 2004. He argued that the lawfulness of the detention orders following on from the original order depended on the lawfulness of the original order. Furthermore, domestic law provided for an appeal to the Supreme Court in cases such as the present; such an appeal could only be effective if the Supreme Court declared the applicant’s appeal admissible and ruled on its merits. 19. By a final decision of 5 November 2004, the Supreme Court declared the applicant’s appeal inadmissible for lack of interest, since the authorisation at issue had already lapsed in the meantime. 20. On 29 April 2004, shortly before the day on which the Court of Appeal’s order of 19 December 2003 was due to expire (1 May 2004), the Juvenile Judge of the Groningen Regional Court extended its validity for four more weeks. It was extended for a further two months on 19 May 2004. The intention was to transfer the applicant to an open setting during this time. 21. On 14 June 2004 the applicant was transferred to an open (non-custodial) unit within the Rentray institution. It appears that the applicant absconded from this unit three times between July and September 2004. 22. On 6 October 2004 the Juvenile Judge of the Groningen Regional Court made a new supervision order and authorised the applicant to be placed in a custodial institution for a period of six months, backdated to 30 September 2004. The applicant and his mother appealed on 17 October and 4 November respectively. 23. On 8 December 2004 the Leeuwarden Court of Appeal, ruling on both appeals, shortened the placement order to three months instead of six on formal grounds. It dismissed an argument based on Article 5 § 4 of the Convention, holding that the proceedings had been sufficiently speedy, and that in any event a finding of a violation of the requirement of “speediness” would not ipso jure have entitled the applicant to immediate release since that might well have gone against his own best interests. 24. It appears that the applicant remained in a secure institution until the time he reached his majority, which was in mid-2006. 25. Under Article 1:254 of the Civil Code (Burgerlijk Wetboek), the Juvenile Judge may, on the application of, inter alia, the Child Care and Protection Board, order a minor child’s placement under the supervision of a family supervision agency (gezinsvoogdij-instelling) within the meaning of section 60 of the Juvenile Care Services Act (Wet op de Jeugdhulpverlening), if the child is growing up under such conditions that he or she is threatened with moral or physical ruin (zedelijke of lichamelijke ondergang). Such an order may be given for a maximum period of one year, but can be extended by a maximum of one year at a time (Article 1:256 of the Civil Code). 26. If it is deemed necessary in the interest of the child’s care and upbringing or for the purposes of an examination of the child’s mental or physical health, the Juvenile Judge may further authorise a custodial placement of the child (Article 1:261 § 1 of the Civil Code). Authorisation for custodial placement in a confined institution can be extended only if this is required on account of severe behavioural difficulties of the minor concerned (Article 1:261 § 3). Such authorisation may only be given for a maximum period of one year, with the possibility of subsequent extension for a maximum of one year at a time (Article 1:262 § 1). 27. An appeal against decisions taken in petition-based proceedings, including those of the Juvenile Judge, lies to the Court of Appeal (Article 358 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering)). The time-limit for bringing such an appeal is three months from the date of the decision (Article 358 § 2). 28. Pursuant to Article 426 § 1 of the Code of Civil Procedure, those who have participated in the proceedings at first instance or at the appellate stage may lodge an appeal on points of law with the Supreme Court within three months from the date of the decision. Such an appeal is introduced by way of a petition signed by a member of the Supreme Court bar (Article 426a). The Supreme Court takes its decision after the Procurator General has submitted a written advisory opinion, within a time-limit set by the Supreme Court itself (Article 429 § 1). 29. At the relevant time, the Supreme Court bar was composed of all legal practitioners who were members of the bar of The Hague, excluding any others (section 1(2) of the Legal Profession Act (Advocatenwet)). 30. It is constant case-law of the Netherlands Supreme Court to declare appeals on points of law contesting the lawfulness of detention inadmissible if the detention has ended, for whatever reason, by the time the court comes to consider the question. This is what it decided, for example, in its judgment of 7 October 1997 (see Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1998, no. 227). 31. The Supreme Court confirmed this position in a judgment of 31 May 2005 (NJ 2005, no. 531), in which it declared inadmissible an appeal on points of law lodged by a person committed to detention for twelve days for failing to give evidence as a witness in court but who had been released nearly eleven months earlier. Even so, the Supreme Court saw fit to address the merits of the case obiter, considering that had the appeal been admissible, it would have failed nonetheless.