CASE OF ERKALO v. THE NETHERLANDS
Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 5-4;Not necessary to examine Art. 13+5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
R. Pekkanen
8. The applicant is an Ethiopian national born in 1970. 9. The applicant was convicted on two counts of manslaughter by the Groningen Regional Court (arrondissementsrechtbank) on 21 June 1990. He had broken into the homes of two elderly ladies whom he had strangled to death, both these incidents taking place within the space of three days. 10. The applicant was sentenced to five years’ imprisonment (with deduction of the period spent in detention on remand) and placement at the disposal of the government (terbeschikkingstelling) with committal to a psychiatric institution. Although the period of placement at such an institution does not usually begin until the date on which the person concerned is eligible for early release – which in the present case would have been 16 February 1993 – due to his disturbed mental state the authorities decided to commence the applicant’s treatment prior to this date (Article 13 of the Criminal Code – Wetboek van Strafrecht – and Article 120 of the Prisons Ordinance – Gevangenismaatregel – see paragraph 20 below). Accordingly, the applicant was placed at the disposal of the government in a psychiatric institution for a two-year period commencing 3 July 1991 (see paragraph 21 below). 11. According to Article 509o § 1 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as “CCP”), a request for the extension of a placement order must be made by the public prosecutor not later than one month before the expiry of the previous period of placement (see paragraph 23 below). The last day for making such a request in the present case was therefore 3 June 1993. A letter to this effect was sent by the State Secretary of Justice to the public prosecutor on 11 May 1993, the latter having received on 4 May 1993 the recommendations of the psychiatric institution where the applicant was being treated regarding the prolongation of his period of placement (see paragraph 23 below). 12. On 17 May 1993 the public prosecutor prepared a request for a one-year extension of the applicant's placement. The applicant was informed of this fact by letter of the same day (see paragraph 23 below), which he received in person on 19 May 1993. The applicant was also informed that during the judicial examination of the request he could be represented by counsel. The request prepared by the public prosecutor, however, did not arrive at that time at the registry of the Regional Court of Groningen but was, apparently by mistake, placed in the archives of the court. 13. About three and a half months after receiving the letter of the public prosecutor, the applicant alerted the staff in the psychiatric institution to the fact that he had not received any further information regarding the extension of his placement. The request of the public prosecutor was found in the archives of the court on 7 September 1993, and was received at the court's registry on 8 September 1993. On 10 September 1993 the psychiatric institution submitted additional observations concerning its recommendation to extend the hospital order. 14. In the proceedings regarding the extension of his placement, the applicant asked the Regional Court to declare the public prosecutor's request inadmissible on the ground that both Article 509o § 1 of the CCP and Article 5 of the European Convention on Human Rights had been violated. The public prosecutor submitted an explanation in writing as to the reasons why the request had not been lodged in time arguing that the request should not be declared inadmissible. 15. The Regional Court examined the application on 15 September 1993. In its decision of 23 September 1993, the court rejected the applicant's objections and extended his placement at the government’s disposal for another year. Pursuant to Article 509v of the CCP (see paragraph 27 below) no appeal lay against this decision, as it concerned a first extension not exceeding one year. 16. In its decision the Regional Court stated as follows: “3. It appears from the contents of the relevant documents that the request for an extension of the placement at the disposal of the government should have been submitted not later than 3 June 1993. According to the stamp indicating the receipt, the request was not received and registered at the registry of this Court until 8 September 1993. 4. The Code of Criminal Procedure does not indicate any consequences of a failure to observe the time-limit contained in Article 509o § 1. However, in view of the wording of the provision and its legal history, the Court is of the opinion that failure to observe the said time-limit should in principle result in the inadmissibility of the public prosecutor's application. This conclusion can be drawn from the fact that failure to respect this procedural provision is not in conformity with the proper administration of justice. 5. However, in some cases special circumstances might exist which would justify a departure from that principle. The Court considers that such special circumstances are present in this case. 6. The provision referred to has a specific procedural significance and aims at letting the judge examine periodically whether an extension of the judicial measure is necessary. Indirectly the provision also protects the interests of the person placed at the government's disposal since it ensures that this person will know in good time whether or not there will be a request for an extension. In the present case the interests of that person were not prejudiced since the request was notified to him in person on 19 May 1993. He has therefore been able to obtain legal assistance in time and he has not been left in any doubt as to the intentions of the public prosecutor for an unnecessarily protracted period. 7. It remains to be examined whether the failure to comply with the time-limit has been prejudicial to the fairness of the proceedings. In considering this question, the Court must have regard, inter alia, to the fact that the placement at the disposal of the government remains in force as long as there is no final decision on the request. Although there has been a failure to comply with the time-limit for requesting the extension, it does not follow that the deprivation of liberty is unlawful. 8. In substance, there has not been a failure to respect the time-limit within which the request must be made. The public prosecutor prepared a request for an extension in time and he communicated it two days later to the person placed at the government's disposal. Because of circumstances, which have been further explained in the written memorial of the public prosecutor, it was not possible, however, for the Court to decide earlier on this request, which had been prepared in time. It is not possible to consider this a flagrant violation of the procedural provisions. The public prosecutor may only be reproached for the fact that the request did not arrive at the registry of this Court in time, which means that the request was only formally submitted too late. 9. Moreover an evaluation must be made of the various interests involved in the sense that the interest of the person placed at the government's disposal in having the violated legal provision respected must be weighed against the general interest which might be harmed by a decision which would lead to the termination of the placement at the disposal of the government. 10. The Court considers that, in view of the circumstances set out below, the latter interest must prevail. The measure was originally imposed because of two acts of manslaughter. The above-mentioned opinions of the institution quite clearly refer to the necessity of prolonging this coercive measure. The risk of further criminal behaviour is considered still to be present to the same degree, since the person concerned can still not appreciate the vulnerability of his personality. The supplementary opinion regarding the extension repeats this conclusion and also mentions an incident in which violence took place between the person concerned and another person held in the institution. On this occasion he lost his senses for a short while and it was necessary to isolate him for some time in his room.” 17. The Regional Court has since extended the applicant’s placement twice. 18. Article 287 of the Criminal Code makes manslaughter a crime punishable by a term of imprisonment not exceeding fifteen years or a fine not exceeding one hundred thousand Netherlands guilders (NLG). 19. A person who has been found guilty of certain serious crimes and who, at the time of committing an 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 receive psychiatric treatment at the government’s expense (Article 37b). 20. A person sentenced to a term of imprisonment may, by order of the Minister of Justice, be made to serve his sentence in an institution for the treatment of persons placed at the disposal of the government if such a course is indicated by his or her impaired mental development or a mental disturbance (Article 13 § 1 of the Criminal Code and Article 120 of the Prisons Ordinance). 21. According to Article 38d of the Criminal Code a person shall be placed at the disposal of the government for an initial period of two years which may be extended, 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. The provisions relating to the extension of the placement at the disposal of the government are laid down in Articles 509o to 509x of the CCP. 23. Article 509o § 1 provides: “The public prosecutor’s office (openbaar ministerie) may submit a request (vordering) for the prolongation of the placement at the government’s disposal no sooner than two months and no later than one month before the time at which the placement order is due to expire.” The request must be accompanied by a recent recommendation prepared by the institution in which the patient is being treated (Article 509o § 2). In accordance with the provisions of Article 509o § 6, the person concerned must be given a copy of the request as soon as possible. 24. The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the placement (Article 509p). 25. Pursuant to Article 509q, if a request for the extension of the placement is submitted to the Regional Court, the initial placement order shall remain in force until the decision of the court is rendered. If the request is granted after the date on which the placement would have expired had no request for prolongation been submitted, the new period of placement is nonetheless considered to have commenced as from that date. 26. The Regional Court must immediately set a date for the examination of the case, and the person concerned must be informed promptly of this date (Article 509s § 1). The decision of the Regional Court must be rendered as soon as possible, but no later than two months from the date on which the request was lodged (Article 509t § 1). The court may, however, exceed this time-limit if it wishes to consider refusing the request – thus terminating the measure – and if it needs more information as to the way in which the person concerned might be released back into society. In such a case, the court has an additional three months to render its decision (Article 509t § 2). The Regional Court’s decision shall be reasoned. If it decides to prolong the placement order, the decision must be pronounced publicly (Article 509t § 3). 27. Both the public prosecutor and the person concerned may lodge an appeal with the Court of Appeal (Gerechtshof) of Arnhem within two weeks of the service of the judgment given by the Regional Court. However, this provision rules out an appeal in regard to the first decision to extend the placement for a period of one year (Article 509v). 28. There is no express provision requiring the release of the person concerned if the time-limits laid down by Articles 509o § 1 and 509t §§ 1 and 2 are not complied with, nor does the CCP impose any sanctions on exceeding these time-limits. 29. According to Netherlands case-law summary civil proceedings (kort geding) may be instituted in cases where a person placed at the disposal of the government wishes to obtain a court judgment on the lawfulness of his detention. However, in a case which was brought before the President of the Regional Court of the Hague, a request for the termination of the applicant’s placement was rejected, inter alia, in view of the fact that the court competent to decide on the extension of the placement would be dealing with the matter one week later (decision of 30 March 1990, published in Sancties 1990, pp. 352–53). 30. The date on which the registry of the Regional Court concerned receives the request for extension is considered as the date of submission (Court of Appeal of Arnhem, decision of 26 June 1989, published in Sancties 1990, pp. 294–96). 31. According to a judgment of the Supreme Court (Civil Division) of 14 June 1974 (Nederlandse Jurisprudentie (NJ) 1974, no. 436) a placement order remains lawful even if the decision to extend it exceeds the time-limit now laid down by Article 509t § 1 of the CCP. 32. In a judgment of 29 September 1989 (NJ 1990, no. 2), the Supreme Court (Civil Division) held that only in certain circumstances would the State be obliged to terminate a placement order after its statutory period had expired and no decision as to its extension had been taken. In order to determine whether such an obligation existed, the court should have regard to the extent to which the statutory time-limit had been exceeded, the reasons for which the time-limit had not been complied with and the personal and societal interests involved. 33. In a more recent case, it was also held that the time-limit referred to in Article 509o § 1 of the CCP was not of an absolute nature. On 19 February 1993, in a case where this time-limit had been exceeded, the Supreme Court (Civil Division) found that in light of Article 509q the placement order had remained lawful even though the public prosecutor had lodged the request for extension three days after the date on which it should have been submitted to the registry of the Regional Court (NJ 1993, no. 302).