Resolution CM/ ResDH (2011)233 [1]

Execution of the judgments of the European Court of Human Rights

Nakach and Schenkel against Netherlands

(Applications No. 5379/02 and 62015/00, judgments of 30 June 2005 and 27 October 2005,

final on 30 September 2005 and 27 January 2006)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the failure by a regional Court of Appeal (Arnhem Court of Appeal) to draw up formal records of hearings concerning the extention of the applicants ’ detention in a secure institution and a custodial clinic, respectively (placement at the government ’ s disposal) (violation of Article 5, paragraph 1); the Schenkel case also concerns the failure to examine promptly the applicant ’ s appeal against the decision extending his confinement in the custodial clinic (violation of Article 5, paragraph 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)233

Information on the measures taken to comply with the judgments in the cases of

Nakach and Schenkel against the Netherlands

Introductory case summaries

These cases concern the failure by a regional higher court in the Netherlands (Arnhem Court of Appeal) in 2001 and 2000 respectively, to draw up formal records of appeal hearings concerning the extension of the applicants ’ detention on mental health grounds. The applicants, having been found guilty of attempted homicide but deficient in mental powers, were ordered to be confined in a secure institution ( Nakach case) and a custodial clinic ( Schenkel case) and placed at the government ’ s disposal (TBS order). The placement orders were prolonged for two more years. Appeals introduced by the applicants before the Arnhem Court of Appeal against the extension decisions were rejected. The applicants ’ representatives requested a copy of the official record of the relevant hearing; however this request could not be satisfied, since no formal record had been drawn up: this had been felt as unnecessary, since no appeal could be filed against such rulings; in addition, this practice was considered as time- and money-saving.

The European Court noted that preparing official records in such situations was a requirement under Dutch law; therefore, by not drawing up official records of the relevant hearings, the Arnhem Court of Appeal did not respect the procedure prescribed by domestic law (violations of Article 5, paragraph 1).

The Schenkel case also concerns the failure to examine promptly the applicant ’ s appeal against the decision of the Amsterdam Regional Court extending the confinement order in a custodial clinic (more than 17 months) (violation of Article 5, paragraph 4).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Nakach (5379/02)

-

-

1 840,72 EUR

1 840,72 EUR

Paid on

07/07/2005

Schenkel (62015/00)

-

-

3 236,35 EUR

3 236,25 EUR

Paid on 29/11/2005

b) Individual measures

The Court found in both cases that the finding of a violation constitutes sufficient just satisfaction in respect of non-pecuniary damage.

In the Nakach case, the Court noted that “it is no longer in dispute that the applicant ’ s continued detention was ‘ lawful ’ in the sense that the authorities of the respondent Party found sufficient substantive grounds for their decision” (§ 34).

In the Schenkel case, the Court indicated that the applicant “must have realised that, pending his admission to a custodial clinic, an appeal against a prolongation of his TBS order would – given the reasons why it was imposed – in all likelihood not result in a release from detention” (§ 45).

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

1) Violation of Article 5, paragraph 1: the Arnhem Court of Appeal, as all other Courts of Appeal, now draw up official records of appeal hearings concerning such issues. In addition, the judgment of the European Court in the case of Nakach was sent out to the judiciary and was published in several legal journals, in particular in European Human Rights Cases (2005, No. 8, pp. 817-821), Nederlands Juristenblad (2005, No. 38, p. 1994), Nederlandse Jurisprudentie (2010, 322) and Delikt en Delinkwent (2005, p. 807).

2) Violation of Article 5, paragraph 4: the Schenkel case presents similarities to that of Rutten (Application No. 32605/96, closed by Final Resolution CM/ ResDH (2009)6, adopted on 09/01/2009 ). It seems nonetheless that the violation was not caused by a systemic problem but rather by an erroneous interpretation by the regional court. Given the direct effect of the European Court ’ s judgments in the legal order of the Netherlands , the domestic courts are expected to align their practice with the Court ’ s findings and the Convention requirements. For that purpose, the judgment in question was published in legal journals in the Netherlands ( Trema, 2005, no. 10, p. 442-444; Nederlands Juristenblad 2006, 266; and Delikt en Delinkwent 2006, 20B).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies