FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32605/96 by Ronald G.J. RUTTEN against the Netherlands

The European Court of Human Rights ( First Section ), sitting on 28 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr R. Türmen, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges , [Note1] and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 28 May 1996 and registered on 13 August 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Netherlands national born in 1970.  As far as the Court is aware he is in detention.

He is represented before the Court by Ms J. Kuijper, a lawyer practising in Amsterdam (Netherlands).

A. Particular circumstances of the case

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

On 13 August 1992, following proceedings on appeal, the Court of Appeal ( Gerechtshof ) of Arnhem convicted the applicant of attempted manslaughter and sentenced him to eight months' imprisonment with deduction of the time spent in pre-trial detention and to placement at the Government's disposal ( terbeschikkingstelling ) with committal to a psychiatric institution. The period of placement at such an institution began on 4 September 1992 and expired two years later, on 4 September 1994.

By decision of 9 September 1994, the Regional Court ( Arrondissementsrechtbank ) of Arnhem prolonged the applicant's placement at the Government's disposal for one year. The applicant's placement was consequently due to expire on 4 September 1995.

On 18 July 1995 the Public Prosecutor filed a request for a further prolongation with the Regional Court, where it was registered on 19 July 1995.

The Regional Court examined the request in the course of a hearing held on 22 September 1995. The applicant submitted that the Public Prosecutor's request for a prolongation should be declared inadmissible since the Regional Court was no longer competent to prolong his placement as its statutory period had already expired on 4 September 1995. The applicant further submitted that the Regional Court had failed to comply with Section 509t of the Code of Criminal Procedure ( Wetboek van Strafvordering , hereinafter referred to as "CCP") which provides that a decision on a request for prolongation has to be taken within two months after the submission of the request for an extension.

In its decision of 6 October 1995, the Regional Court rejected the applicant's arguments and prolonged his placement at the Government's disposal by one more year.

In its decision the Regional Court admitted that, as its work had been disrupted during the holidays due to an insufficiency of judges with the specialised knowledge needed, the examination of the request had not taken place within the time-limit contained in Article 509t of the CCP.  However, it held that a failure to observe the time-limit in Article 509t of the CCP did not imply that the Public Prosecutor's request should be declared inadmissible. The Regional Court noted that, by summons of 28 July 1995, the applicant had been invited to appear at the hearing of 22 September 1995 and that a copy of the summons had been sent to his representative. The Regional Court considered that, if the latter had objected to the fixing of that date, the hearing could have been listed for an earlier date.

The applicant appealed to the Court of Appeal on 11 October 1995.

In its decision of 29 January 1996, the Court of Appeal noted that the decision of 6 October 1995 had been given seventeen days after the expiry of the time-limit of Section 509t.  It found that the Regional Court could have, and should have, set a hearing date before the expiry of the time-limit.  Moreover, Article 509t of the Code of Criminal Procedure made it the responsibility of the Regional Court, not of the applicant or his lawyer, to see to it that the time-limit was observed. However, it considered that failure to observe the time-limit entailed neither the inadmissibility of the prosecution's request, nor the incompetence of the Regional Court to examine this request, nor yet the expiry of the placement. Having regard to an expert opinion concerning the applicant's medical condition, the Court of Appeal decided to extend the placement for the period of one year.

B. Relevant domestic law and practice

The relevant provisions of the Code of Criminal Procedure are the following:

Article 509o

“1. 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.

…”

Article 509q

1. The placement shall remain in force as long as a final decision on the request [for its prolongation] has not been taken.  Should the request be allowed after the day on which the placement would have expired had the request for its prolongation not been submitted, the new placement period shall nevertheless start to run on that day.

…”

Article 509t

1. The Regional Court shall decide on the request for prolongation as speedily as possible, but no later than two months from the day on which the request was submitted.

…”

According to a judgment of the Civil Division of the Supreme Court ( Hoge Raad ) 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.

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.

COMPLAINTS

The applicant complains under Article 5 §§ 1 and 4 of the Convention that the decision to prolong his placement at a psychiatric institution was not given speedily in a procedure prescribed by law.

He submits that his placement at the Government’s disposal was unlawful between 4 September and 6 October 1995. He recalls that Section 509t CCP provides that the decision has to be taken within two months of the submission of the request for prolongation. This provision was breached since the decision of the Regional Court was given on 6 October 1995 while the prosecution's request was registered at the Court on 19 July 1995. Furthermore, the statutory period of placement had expired on 4 September 1995.

PROCEDURE

The application was introduced on 28 May 1996 and registered on 13 August 1996.

On 27 May 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 24 July 1998. The applicant replied on 6 October 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

Article 5, in so far as it is relevant, provides as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

…

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

…”

1. The Government objected that the applicant had not exhausted the available domestic remedies.  They argued that the Convention had not been invoked either before the Regional Court or before the Court of Appeal.

The applicant admitted that he had never relied on the Convention.  He argued however that he had complained before the Regional Court and the Court of Appeal that his detention was unlawful because the time-limit laid down by law had already been exceeded when the Regional Court held its hearing.

The Court notes that the complaints made before the domestic courts were identical in substance to the complaint now before it.  Even though the applicant did not cite Article 5 of the Convention, the Court therefore finds that the applicant provided the domestic courts with the opportunity which is in principle intended to be afforded to the Contracting States by Article 35 § 1 (formerly Article 26), namely the opportunity to prevent or put right the violations alleged against them (see, inter alia , the Saïdi v. France judgment of 20 September 1993, Series A no. 261-A, § 39).  The application cannot therefore be dismissed for the reason that the applicant failed to exhaust the available domestic remedies.

2. In the opinion of the Government, the complaint under Article 5 § 1 is manifestly ill ‑ founded.

They submitted that as a matter of domestic law the time-limit laid down in Article 509t of the Code of Criminal Procedure was not absolute.  The system of time-limits provided by Articles 509o and 509t admitted of the possibility that the Regional Court’s decision on prolongation was taken after the end of the statutory period of placement.  Article 509q provided that the placement remained in force until the decision on the request for prolongation had become final.  They further pointed to domestic case-law to the effect that only in exceptional circumstances would the state be obliged to terminate the placement after its statutory period had ended and no decision as to its prolongation had been taken.

The case was to be distinguished from that of Erkalo v. the Netherlands (judgment of 2 September 1998, Reports of Judgments and Decisions 1998).    Unlike in that case, the Public Prosecutor’s request for prolongation of the placement had in fact been submitted in time.  Although arguably the Regional Court could have held its hearing in time, its decision to do so after the end of the period prescribed made possible a more thorough investigation of that request; the Government was of the opinion that the Regional Court had meant to do the applicant justice.

Furthermore, given the content of the report of the psyciatric institution where the applicant was detained it must have been clear to the applicant that prolongation was in any event a real possibility.  In these circumstances, and in the absence of any protest by the applicant himself or his lawyer, the Regional Court had taken the view that scheduling a hearing three days late would not compromise the applicant’s interests.

The applicant argued that Article 509q provided for the situation in which the placement had formally ended but, exceptionally, the prolongation decision itself had not yet been taken.  It did not provide for the situation where the law itself had been violated.

The Regional Court’s decision, as sanctioned by the Court of Appeal, had been arbitrary given that the judicial authorities were themselves to blame for the fact that the legal time-limits had not been complied with.  Apart from that, the reasons given by the Regional Court, the Court of Appeal and – in Strasbourg – by the Government are insufficient.

As to the Government’s argument that the applicant ought to have been aware of the “real possibility” that the placement might be prolonged, the applicant noted that recommendations of the institution where the person concerned was placed were not binding on the courts, and that it was by no means invariably the case that the courts followed these recommendations.

The argument that neither the applicant nor his lawyer had protested against the date set for the hearing had been dismissed by the Court of Appeal, which had held the Regional Court solely responsible.

Although it had been clear to the Regional Court when it set a date for the hearing that the legal time-limit would not be met, the actual decision had been made even later, which made the violation more serious still.

3. In the Government’s submission, the complaint under Article 5 § 4 was likewise manifestly ill-founded.

In their submission, account could be taken only of the period between 19 July 1995 – the date on which the Public Prosecutor lodged the application for prolongation of the applicant’s placement – and 6 October 1995, the date on which the Regional Court gave its decision.  It thus amounted to two months and seventeen days.  This was sufficiently brief to satisfy the requirement of speediness found in Article 5 § 4.

The applicant submitted that the failure to meet the legal time-limit made the decision “arbitrary” and that Article 5 § 4 had already for that reason been violated.  He was also of the opinion that the length of the appeal proceedings had to be taken into account.  The applicant having appealed on 11 October 1995 and the date of the decision of the Court of Appeal being 29 January 1996, the length of proceedings before the Court of Appeal, namely further three months and seventeen days, was excessive.

4. Having regard to the parties’ submissions and to its case-law, including in particular the above-mentioned Erkalo judgment, the Court considers that these complaints raise complex questions of fact and of law which require an examination of the merits.   They cannot, therefore, be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, by a majority,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Elisabeth Palm Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK (Shift+Enter). When inserting names via AltS please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Section Registrar.)