FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37342/97 by Roedredat PIARE against the Netherlands

The European Court of Human Rights ( First Section ), sitting on 29 February 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 ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 20 May 1997 and registered on 11 August 1997,

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 deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1940, and currently serving a prison sentence. He is represented by Mr G. Spong and Mr C.J. van Bavel , both lawyers practising in The Hague and Utrecht respectively.

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

On 20 July 1994, the applicant was arrested and placed in detention on suspicion of narcotics offences. He remained in detention during the criminal proceedings that were subsequently brought against him.

On 24 November 1994, the Regional Court ( Arrondissementsrechtbank ) of The Hague handed down its judgment in the applicant’s case.

In its judgment of 21 July 1995, following proceedings on appeal, the Court of Appeal ( Gerechtshof ) of The Hague, quashed the judgment of 24 November 1994, convicted the applicant of participation in a criminal organisation and of narcotics offences and sentenced him to twelve years’ imprisonment and payment of a fine of NLG. 500,000.

On 26 July 1995, the applicant filed an appeal in cassation with the Supreme Court ( Hoge Raad ). On 14 May 1996, the applicant’s case-file was received by the Supreme Court. On 3 September 1996, the Supreme Court commenced its examination of the applicant’s appeal in cassation and, by judgment of 7 January 1997, rejected it. The applicant’s sole complaint was that, given the delay between the judgment of the Court of Appeal and the first examination of his appeal in cassation , the criminal proceedings against him had exceeded a reasonable time. The Supreme Court rejected this complaint, holding that the delay complained of was not of such a duration that the reasonable time requirement under Article 6 § 1 of the Convention had been violated.

The judgment of 21 July 1995 thus became final. The date on which the applicant would become eligible for early release was 31 January 2003. On the basis of the contents of a letter addressed by the applicant to the Procurator-General ( Procureur-Generaal ), which raised certain concerns as to the applicant’s mental health, it was decided to examine the applicant’s situation. To this end he was admitted to the Penitentiary Selection Centre ( Penitentiair Selectie Centrum ; “PSC”) for a clinical psychological examination. The PSC examination resulted in a finding that the applicant’s affective functioning was laboured, that he displayed an attitude of helplessness, that he was showing narcissistic, dependent and passive-aggressive tendencies and that is was clear that he was very vulnerable in detention and needed guidance and protection.

The applicant was subsequently placed in the Individual Care Unit ( Individuele Begeleidingsafdeling ; “IBA”) of the Norgerhaven prison, where inmates, who are unable to function in a regular prison environment on grounds of their mental state, are placed.

According to reports of the mental health consultative body ( Psychisch Medisch Overleg ; “PMO”) of the Norgerhaven prison on the applicant’s situation in detention, the applicant required much attention and care, and had to be stimulated constantly in order not to sink into a serious depression. With the exception of a short period, special surveillance measures had to be taken during the night on grounds of a perceived real risk of suicide.

In September 1998, the applicant filed a request for pardon ( gratie ) on, inter alia , compassionate grounds in relation to his mental problems caused by his detention. He argued that a continuation of his detention, in view of his resulting mental condition, constituted inhuman treatment. In a letter to the direction of the Norgerhaven prison, the PMO of the Norgerhaven prison supported this request for pardon.

The applicant’s request was further supported in a report dated 2 November 1998 by a rehabilitation officer ( reclasseringswerker ). This report mentions that the PSC had found that the IBA was the only option for detaining the applicant, as the chances of a suicide were so high that the applicant could too easily escape the attention of the warders working on a regular prison unit. The report further sketches the increasing mental problems of the applicant arising from his feeling to have been convicted unjustly and the detrimental effects of the applicant’s lengthy detention on his family life and his company. The applicant is described as a downcast, unstable and depressive man, who, as a consequence of continuous stress, develops more and more physical problems.

Although the Advocate-General ( Advocaat-Generaal ) to the Court of Appeal of The Hague had issued a positive opinion as to the applicant’s request for a pardon, the Court of Appeal, on 9 August 1999, advised the Minister of Justice to grant the applicant’s request only in part, i.e. by reducing the sentence from twelve years’ to ten years’ imprisonment.

As the applicant considered that his request for a pardon was not dealt with diligently, he instituted summary proceedings ( kort geding ) against the Netherlands State before the Regional Court of The Hague. He sought an injunction against the State, ordering the latter to immediately cease the execution of his sentence. He submitted that a continuation of his detention constituted inhuman treatment.

On 31 August 1999, the Regional Court examined the case and heard the parties. In the course of this hearing, the Netherlands State argued that the applicant could avail himself of the possibility of seeking an interruption of sentence ( strafonderbreking ). Following the parties’ hearing, the Regional Court decided to adjourn its further examination until 22 October 1999.

On the same day, the applicant filed a request for interruption of sentence. In his reply of 23 September 1999, the Minister of Justice noted that the applicant’s request for a pardon was still pending, that, according to a recent opinion of the Psychiatric Advisor to the Ministry of Justice, a further forensic psychiatric and psychological examination of the applicant was required in order to determine his suitability for detention ( detentiegeschiktheid ) and that, to this end, the PSC had agreed to admit the applicant with priority, namely during the first week of October 1999. The Minister informed the applicant that the decision on his request for interruption of sentence was postponed until the submission of the PSC report.

On 5 October 1999, the applicant was transferred from the Norgerhaven prison to the PSC for an examination of his suitability for detention. In its report of 23 November 1999, the PSC concluded that, on grounds of his mental problems, the applicant’s suitability for detention was reduced to a significant extent and that his request for a pardon warranted support and that only a substantial reduction of his punishment by way of a pardon could reduce the stress factors which maintained the applicant’s adjustment disorder.

On 22 October 1999, the Regional Court resumed its examination in the summary proceedings instituted by the applicant. After having heard the parties’ further submissions, it decided to adjourn its further examination until 24 January 2000.

In the light of the PSC report of 5 October 1999, the applicant’s request was re-submitted to the Court of Appeal of The Hague, requesting the court to consider whether or not these new elements gave reason to the court to alter its advice on the request for pardon.

COMPLAINTS

1. The applicant complains under Article 6 of the Convention that the criminal proceedings against him exceeded a reasonable time given the delay which occurred between 21 July 1995, when the Court of Appeal handed down its judgment, and 3 September 1996, when the Supreme Court started its first examination of his appeal in cassation .

2. The applicant further complains under Article 3 of the Convention that, given his mental health condition resulting from his detention, the continuation of his detention amounts to inhuman treatment.

PROCEEDINGS BEFORE THE COURT

The application was introduced on 20 May 1997 and registered on 11 August 1997.

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.

On 17 December 1999, the applicant requested the Court to issue an interim measure within the meaning of Rule 39 of the Rules of Court in relation to his continued detention. After having examined the request, the President of the First Section of the Court rejected the applicant’s request on 21 December 1999.

THE LAW

1. The applicant complains under Article 6 of the Convention that the criminal proceedings against him have exceeded a reasonable time in that there was an unacceptable delay between the date on which the Court of Appeal gave its judgment and the date on which the Supreme Court considered his appeal in cassation for the first time.

Article 6 of the Convention, insofar as relevant, provides:

"1. In the determination of ...any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by a ... tribunal ...."

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of each case and having regard in particular to the following criteria: the complexity of the case, the conduct of the applicant and that of the competent authorities (see, inter alia , the Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60). Persons held in detention are further entitled to special diligence (see the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 35, para. 84).

In the present case, the proceedings started on 20 July 1994, when the applicant was taken into pre-trial detention, and ended on 7 January 1997, when the Supreme Court rejected the applicant's appeal in cassation . The applicant was detained pending these proceedings.

As regards the total length of the proceedings, i.e. slightly less than two years and six months in the course of which the applicant's case was examined in three instances, the Court cannot find that the total duration of these proceedings exceeded a reasonable time within the meaning of Article 6 para. 1 of the Convention.

As to delay between 21 July 1995, when the Court of Appeal handed down its judgment, and 3 September 1996, when the Supreme Court started its examination of the applicant's appeal in cassation , the Court notes that the major part of this delay appears to have been caused by the late transmission of the applicant's case-file from the Court of Appeal to the Supreme Court. Although this delay may appear rather long in relation to the total length of the proceedings, the Court finds, on balance and having regard in particular to the total duration of the proceedings, that this delay in itself is insufficient for concluding that the proceedings exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention (cf. Gibbs v. the Netherlands , No. 38089/97, Dec. 31.8.99).

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains under Article 3 of the Convention that, given his mental health condition resulting from his detention, the continuation of his detention amounts to inhuman treatment.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court considers at the outset that the Convention and its additional Protocols do not, as such, guarantee a right to pardon, remission or interruption of a lawful sentence of imprisonment or conditional release. Nevertheless, issues may arise under Article 3 of the Convention in relation to a lawful sentence of imprisonment as regards the manner of its execution and its length.

The Court recalls that, in order to fall within the scope of Article 3 of the Convention, ill-treatment must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (cf. T. v. United Kingdom judgment of 16 December 1999, § 68).

The Court observes that the applicant has serious mental problems relating to his conviction and his detention. There is, however, no indication that the Dutch penitentiary authorities have disregarded the applicant’s mental and physical condition or that they have failed to provide necessary medical care within the penitentiary system. It appears from the facts of the case that the penitentiary authorities keep the applicant’s situation under surveillance, that measures appropriate to his situation have been taken and that other such measures are currently being examined.

In these circumstances, the Court cannot find that the applicant’s continued detention amounts to a violation of Article 3 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President