Communicated on 30 August 2016

THIRD SECTION

Application no. 70043/13 Mark BALLEGEER against the Netherlands lodged on 1 November 2013

STATEMENT OF FACTS

1. The applicant, Mr M. Ballegeer , is a Dutch national, who was born in 1982. He is detained in Poortugaal , the Netherlands. He is represented before the Court by Mr H.M. Dunsbergen , a lawyer practising in Breda.

A. The circumstances of the case

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

1. The applicant ’ s conviction and placement at the disposal of the Government attended by compulsory (supervisory) measures

3. On 3 July 2006 the applicant was convicted of rape and multiple accounts of indecent assault ( feitelijke aanranding van de eerbaarheid ) of Article 246 of the Criminal Code ( Wetboek van Strafrecht )) by the Middelburg Regional Court ( rechtbank ) . He was sentenced to three years ’ imprisonment and placement at the disposal of the Government (hereafter a “TBS order” – terbeschikkingstelling ) attended by compulsory (supervisory) measures ( met voorwaarden ) entailing treatment on an out-patient basis . The TBS order took effect on 23 December 2007.

4. On 19 February 2008 the compulsory measures of the applicant ’ s TBS order were revised. On 29 December 2009 the TBS order was prolonged for an additional two years and the compulsory measures were again revised. One of those measures required the applicant to cooperate with the psychiatric clinic where he received treatment. It appears that as of this time the applicant was placed in a psychiatric clinic for supervision and treatment.

2. Proceedings concerning the applicant ’ s placement at the disposal of the government with confinement in a custodial clinic

5. On 7 March 2011 the public prosecutor filed a request under Article 509i of the Code of Criminal Procedure ( Wetboek van Strafvordering ), for the provisional confinement ( voorlopige verpleging ) of the applicant in a custodial clinic until a decision on the request under Article 38c of the Criminal Code for a TBS order with confinement in a custodial clinic ( terbeschikkingstelling met bevel tot verpleging van overheidswege ) was taken .

6. By decision of 8 March 2011 the investigating judge ( rechter-commissaris ) granted this request. The applicant was apprehended and detained in a remand institution ( huis van bewaring ) on the same day. On the same day the public prosecutor filed a request for a TBS order with confinement in a custodial clinic under Article 38c of the Criminal Code .

7. The Regional Court imposed a TBS order with confinement in a custodial clinic by decision of 19 July 2011 as the applicant had repeatedly failed to abide by the conditions of his TBS order attended by compulsory (supervisory) measures. It referred in this regard to two progress reports of the probation services ( reclassering ) of November 2010 and March 2011 where mention was made that the applicant had had sexual relations with a fellow patient in the psychiatric clinic where he had been placed, despite the fact that he had been warned a year earlier, when a similar incident had occurred, that such behaviour was forbidden. The reports further mentioned that treatment had been suspended in November 2010 due to a lack of progress in the applicant ’ s behaviour , that he had violated other rules of the psychiatric clinic and acted aggressively towards his doctors and other health care staff and therefore should be excluded from the clinic.

8. The applicant lodged an appeal against this decision. In the appeal proceedings a report from the Pieter Baan Centre, an observation clinic belonging to the Netherlands Institute for Forensic Psychiatry and Psychology ( Nederlands Instituut voor Forensische Psychiatrie en Psychologie ), of 23 October 2012 was submitted. This report concluded, amongst other things, that the applicant ran a high risk of suffering a relapse in the medium term and that he required intensive clinical treatment.

9. On 3 December 2012 the Court of Appeal quashed the Regional Court ’ s decision of 19 July 2011 due to the additional evidence that had been introduced and which it had considered but maintained the imposition of the TBS order with confinement in a custodial clinic.

10. In the meantime, the applicant ’ s TBS order attended by compulsory (supervisory) measures had expired by lapse of time on 23 November 2011. According to Article 509o of the Code of Criminal Procedure, a request for the extension of a TBS order must be made by the public prosecutor two months before or in any case not later than one month after the expiry of the order. The last day for making such a request in the present case was 23 December 2011.

3. Proceedings concerning the extension of the applicant ’ s placement at the disposal of the Government with confinement in a custodial clinic

11. On 21 December 2012 the public prosecutor lodged a request with the investigating judge for the provisional extension of the TBS order with confinement in a custodial clinic based on Article 509oa of the Code of Criminal Procedure (see paragraph 22 below).

12. The investigating judge found that the public prosecutor ’ s request for the provisional extension of the TBS order had been submitted without delay ( onverwijld ) after the public prosecutor had become aware of the judgment of the Court of Appeal of 3 December 2012. The investigating judge noted that, while the transgression of the time-limit to submit the extension request was considerable, the applicant had committed grave offences, that his clinical treatment had not yet begun, that the applicant had assumed that he was still held due to the TBS order imposed on him by the Regional Court ’ s decision of 19 July 2011, that there was a risk of the applicant suffering a relapse, that he posed a threat to others and public security and that no information was available as to where the applicant would reside if the extension request were to be rejected due to the limited time between the submission of the extension request and the hearing. The provisional extension of the TBS order was therefore granted on 21 December 2012.

13. On 4 February 2013 the Middelburg Regional Court examined the request submitted by the public prosecutor on 21 December 2012 for a two-year extension of the applicant ’ s TBS order pursuant to Article 509oa of the Code of Criminal Procedure.

14. The public prosecutor submitted that the error due to which the extension request had not been timely submitted was of an administrative nature as the public prosecution department ( parket ) had not been timely alerted by the relevant department of the Ministry of Justice. This error was caused by the fact that the applicant ’ s case had been removed from the time tracking system after his TBS order attended by compulsory (supervisory) measures was replaced by a TBS order with confinement in a custodial clinic. He added that despite the time lapse, the request should not be found inadmissible as the applicant was yet to commence his treatment based on the TBS order with confinement in a custodial clinic. He further added that the applicant had counsel throughout the procedure, who had kept the applicant informed of the procedure.

15. The applicant persisted that the prosecutor ’ s request should be found inadmissible as the transgression of the time-limit for the extension request was of a grave nature and the public prosecutor had still not found a place for the applicant for his treatment. He also refuted the claim that he was yet to begin his treatment as he had already been on a treatment trajectory for four years during the time of his placement at the disposal of the Government attended by compulsory (supervisory) measures.

16. In its decision of 18 February 2013 the Regional Court considered that as of 23 November 2011 the applicant was detained without a court order. Since that time and the prosecutor ’ s extension request thirteen months had passed. The Regional Court noted that, although Article 509oa of the Code of Criminal Procedure provided an opportunity to remedy the time lapse, there may well be an issue under Article 5 of the Convention in light of the Erkalo judgment ( Erkalo v. the Netherlands , 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI ). In deciding whether the prosecutor ’ s request was still made within a reasonable time the Regional Court considered, inter alia , that the proceedings of the TBS order could not be seen as an ordinary one, that the applicant had only been detained in a remand institution, that no treatment of any kind had been given to him from 8 March 2011 onwards and that it was unclear when he would be able to commence treatment. The court added that it was unpleasantly surprised that the public prosecution had also not acquainted itself with the particular aspects of this case after 21 December 2012 and thus had not been able to inform the court about that latter aspect. It further noted that the applicant was at the beginning of his treatment trajectory as regards his TBS order with confinement in a custodial clinic and that there was a high risk of relapse in the medium-term if he were released. The Regional Court, taking note of the aforementioned factors, concluded as follows:

“The court is faced with a great dilemma as both the interests of the person placed at the Government ’ s disposal and society should be characterised as exceptionally substantial, both from a legal and societal perspective. The obvious necessity to protect society from violent crimes as committed by the person placed at the Government ’ s disposal required in this regard little explanation. Not less evident is the need to protect the rights of the person placed at the Government ’ s disposal as guaranteed by Article 5 §§ 1 and 4 of the Convention. It is indeed the core of a society governed by the rule of law that [an] individual is protected from unlawful acts by the Government. That such acts have taken place in the current situation is clear for the court, as the detention of the person concerned was from 23 December 2011 no longer based on a court order and the person concerned was not brought before a judge within the applicable time-limits to ask for a ruling [on this matter].

The court will nonetheless, considering all the above-mentioned factors, accord most weight to the need for the applicant to undergo treatment and to protect society. The disorders the applicant was suffering from would cause a serious risk to the security of others in the medium term and required treatment in the short term. Therefore the Regional Court will find the public prosecutor ’ s request admissible.

The court does not have the jurisdiction to decide on the question whether any other consequence, such as damages, should be attached to the fact that a violation of the aforementioned provision of the Convention has taken place and leaves the assessment of that question to another judge.”

17. By decision of 18 February 2013 the Regional Court granted the extension of the TBS order of the applicant with retroactive effect from 23 December 2011 for a period of two years.

18. The applicant filed an appeal against this decision with the Arnhem-Leeuwarden Court of Appeal ( gerechtshof ) sitting in Arnhem. The Court of Appeal noted in its decision of 30 May 2013 that the applicant ’ s treatment had commenced on 13 March 2013 and should be pursued without any delay. It upheld the reasoning and the decision of the Regional Court.

B. Relevant domestic law

1. TBS orders

19. There are two forms of TBS order, namely a TBS order attended by compulsory (supervisory) measures ( terbeschikkingstelling met voorwaarden ) and a TBS order with confinement in a custodial clinic ( terbeschikkingstelling met verpleging van overheidswege ).

20. The system of TBS orders with confinement in a custodial clinic ( terbeschikkingstelling met verpleging van overheidswege ) is described in, inter alia , Rutten v. the Netherlands ((no. 32605/96, §§ 18-30, 24 July 2001), Morsink v. the Netherlands (no. 48865/99, §§ 26-37, 11 May 2004), Nakach v. the Netherlands ((no. 5379/02, §§ 20-27, 30 June 2005) and D.B. v. the Netherlands (( dec. ), no. 53764/07, §§ 20-30, 5 March 2013).

21. Where a convicting trial court considers that the requirements for a TBS order are met but does not find confinement in a custody clinic necessary, it can decide to impose a TBS order attended by compulsory (supervisory) measures. This means that the person concerned will not be receiving treatment whilst detained but on an out-patient basis provided that he or she respects the conditions fixed, such as, for instance, attending scheduled treatment sessions and respecting prescribed medication schemes. Failure to respect such conditions, or where the safety of others or the general safety of persons or property so requires, the convicting criminal court may, at the request of the prosecution service, order that the TBS order be implemented whilst the person is confined in a custodial clinic.

2. The Code of Criminal Procedure

22 . Provisions of the Code of Criminal Procedure ( Wetboek van Strafvordering ) relevant to the case include the following:

Article 509o

“1. No sooner than two months and no later than one month before the time at which the TBS order is due to expire, the Public Prosecution Service may submit a request for an extension of the order. ...”

Article 509oa

“1. A request as referred to in Article 509o § 1 which has been submitted later than one month before the time at which the TBS order is due to expire but within a reasonable time, shall nevertheless be admissible if there are special circumstances owing to which the safety of others or the general safety of persons and goods requires the TBS order to be extended notwithstanding the interests of the person subject to the TBS order.

2. In the case referred to in the first paragraph, the Public Prosecutor shall, if the lapse ( verzuim ) has been noted after the time at which the TBS order expired, submit without delay, in addition to the request for the extension of the TBS order, a request for the provisional extension of the TBS order to the investigating judge. ... Pending the decision on the request for provisional extension of the TBS order the person subject to the TBS order shall not be released.

3. The investigating judge shall decide within three times twenty-four hours from the submission of the request for the provisional extension of the TBS order. The person subject to the TBS order shall be heard by the investigating judge if possible.

4. An order of the investigating judge for the provisional extension of the TBS order shall be executable immediately. ...”

COMPLAINT

23. The applicant complains under Article 5 § 1 of the Convention that the extension of his TBS order, after it had already expired, did not meet the standards set out in Articles 509o and 509oa of the Code of Criminal Procedure.

QUESTIONS TO THE PARTIES

1. In light of the finding of a violation of Article 5 of the Convention by the Regional Court in its decision of 18 February 2013, c an the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the Convention?

2. What domestic proceedings may effectively compensate the applicant? Can the Government present examples of persons having made use of such a remedy with success?

3. From 23 December 2011 onwards, was the applicant ’ s detention “lawful” within the meaning of Article 5 § 1 of the Convention? In particular, was the applicant deprived of his liberty in accordance with “a procedure prescribed by law”?