THIRD SECTION

DECISION

Application no. 23307/05 by Armand Ernst ENAIT against the Netherlands

The European Court of Human Rights (Third Section), sitting on 20 May 2008 as a Chamber composed of:

Josep Casadevall , President, Elisabet Fura-Sandström , Corneliu Bîrsan , Alvina Gyulumyan , Egbert Myjer , Ineta Ziemele , Ann Power , judges, and Stanley Naismith , Deputy S ection Registrar ,

Having regard to the above application lodged on 24 June 2005,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the joint formal declar ation accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Armand Ernst Enait, is a Dutch national who was born in 1978 and lives in Rotterdam . He was rep resented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam . The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties , may be summarised as follows.

On 4 March 2004, following proceedings on appeal, the Amsterdam Court of Appeal ( gerechtshof ), quashing the judgment given on 21 March 2003 by the Amsterdam Regional Court ( rechtbank ), convicted the applicant of criminal charges that had been brought against him. Having found that his mental faculties were so poorly developed that he could only be held responsible for his acts to a limited degree, the Court of Appeal sentenced him to fifteen months ’ imprisonment with deduction of the time spent in pre-trial detention, in combination with an order for his confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ; hereinafter “TBS order”). This judgment became final on 19 March 2004. On the same date, his TBS order took effect. However, the applicant was not transferred to a custodial clinic , as there were no places available. He therefore remained in pre-placement detention in a special care ward in an ordinary remand centre ( huis van bewaring ) .

On 23 September 2004, the applicant filed an appeal with the Appeals Board ( beroepscommissie ) of the Council for the Administration of Criminal Justice and Juvenile Protection ( Raad voor Strafrechtstoepassing en Jeugdbescherming ) against a decision taken on 14 September 2004 by the Minister of Justice prolonging the six-month period of pre ‑ placement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order ( Beginselenwet verpleging ter beschikking gestelden ; hereinafter “the Act”) by three months , namely from 15 September to 14 December 2004.

On 19 November 2004 , the Minister prolonged the applicant ’ s pre ‑ placement detention by a further period of three months. The applicant also filed an appeal against this decision with the Appeals Board .

On 30 December 2004, the Appeals Board accepted the applicant ’ s appeal of 23 September 2004. Having noted the Court ’ s findings in its judgments in the cases of Brand v. the Netherlands , (no. 49902/99, 11 May 2004 ) and Morsink v. the Netherlands (no. 48865/99, 11 May 2004 ) which had become final on 10 November 2004, it concluded that the Minister ’ s decision of 14 September 2004 was unlawful. As to various other requests made by the applicant, the Appeals Board stated that it was not competent to release the applicant or to issue an order for his immediate admission to a custodial clinic or another institution and outside of a remand centre. The Appeals Board, having noted the parties ’ submissions on this matter, reserved its decision on the question of compensation ( tegemoetkoming ) and decided to invite the Minister to state his views on this point.

On 5 January 2005, the applicant filed a petition ( verzoekschrift ) with the Amsterdam Court of Appeal to lift or suspend his detention and the TBS order, and to order his immediate release, as he was still held in pre-placement detention awaiting admission to a custodial clinic, whereas at the material time the State knew or should have known that this order could not be executed. On 23 March 2005, the Amsterdam Court of Appeal declared this petition inadmissible, holding that it lacked competence to determine the matter raised by the applicant.

On 12 January 2005, the applicant filed with the Supreme Court ( Hoge Raad ) a request for revision ( herziening ) of the judgment of 4 March 2004 of the Amsterdam Court of Appeal. The Supreme Court declared this request inadmissible on 15 February 2005.

In its decision of 2 June 2005 and further to its decision of 30 December 2004, t he Appeals Board determined that the applicant was entitled to compensation to be paid by the Minister of 350 euros (EUR) per month as from the date on which his pre ‑ placement detention had exceeded six months until the date of his admission to a custodial clinic and on the understanding that this amount was to be increased by EUR 125 per month after the expiry of each further period of three months .

On 21 June 2005, the Council for the Administration of Criminal Justice and Juvenile Protection transmitted to the applicant – stating that by mistake this had not been done earlier – a copy of a letter sent on 16 February 2005 by the Minister to the Council in which the Minister made a new proposal for compensation awards to be made to persons held in pre ‑ placement detention, namely in line with the just satisfaction award made by the Court in the case of Brand v. the Netherlands .

At the time of the introduction of the application, the applicant was still held in pre-placement detention awaiting admission to a custodial clinic.

COMPLAINT S

Relying on Article 5 §§ 1 and 4 of the Convention, the applicant complained of the duration of his pre-placement detention pending his admission to a custodial clinic .

The applicant further complained under Article 13 of the Convention taken together with Article 5 §§ 1 and 4 that he did not have an effective remedy in respect of his pre-placement detention as the Appeals Board and the Amsterdam Court of Appeal did not deal with his request to order his immediate admission to a custodial clinic or to release him, and as the Supreme Court rejected his revision request.

He also complained under Article 6 of the Convention that he was denied a fair hearing in the criminal proceedings against him in that the TBS order imposed has remained unexecuted and, under Article 5 § 5 taken together with Article 6, that he was not given an opportunity to react to the Minister ’ s submissions of 16 February 2005 before the Appeals Board rendered its decision of 2 June 2005 .

THE LAW

On 10 April 2008 the Court received the following joint declaration from the parties:

“The undersigned:

● Mr Armand Ernst Enait, represented in this matter by his counsel mr G.P. Hamer (“the applicant”), on the one hand; and

● The Government of the Netherlands represented in this matter by its Agent, mr Roeland Böcker, (“the Government”) on the other:

Agree as follows with a view to secure a friendly settlement

1.) The Government will pay the applicant the sum of € 655.00. This sum includes statutory interest;

2.) The Government will pay the applicant the sum of € 2,207.45 in respect of costs and expenses. This sum includes taxes, as well as interest;

3.) The applicant will withdraw his application to the European Court of Human Rights;

4.) The amounts mentioned under 1. and 2. will be transferred to account no. ... [in the name] of ....; there are no relevant outstanding claims that will be deducted from these amounts by the Government;

5.) The amounts mentioned under 1. and 2. will be payable before 1 July 2008. In the event of failure to pay these sums before this date, the Government will pay statutory interest;

6.) Payment will constitute the final resolution of this case.

Done and signed in triplicate

For the applicant, For the Government,

Amsterdam The Hague ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Stanley Naismith Josep Casadevall Deputy Registrar President