Communicated on 2 November 2015

THIRD SECTION

Applications nos 7599/15 and 7603/15 Daniel Cornelis CASTELIJNS against the Netherlands and Johannes Martinus SMETSERS against the Netherlands lodged on 6 February 2015

STATEMENT OF FACTS

1. The applicant in the first case, Mr Daniel Cornelis Castelijns, is a Netherlands national, who was born in 1971 and is currently detained in a remand institution ( huis van bewaring ) in Roermond.

2. The applicant in the second case, Mr Johannes Martinus Smetsers, is also a Netherlands national; he was born in 1980 and is detained in a remand institution in Dordrecht.

3. Both applicants are represented before the Court by Ms J. Kuijper and Mr Th.O.M. Dieben, lawyers practising in Amsterdam.

A. The circumstances of the cases

4. The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Mr Castelijns (application no. 7599/15)

(a) Criminal proceedings

5. Mr Castelijns was arrested on suspicion of having, in association with others, robbed a firm of jewellers. On 12 April 2013 he was taken into police custody ( inverzekeringstelling ). On 15 April 2013 he was taken into detention on remand ( voorlopige hechtenis ). Mr Castelijns ’ detention on remand has been periodically extended ever since.

6. On 4 March 2014 the Eastern Brabant Regional Court ( rechtbank ) found Mr Castelijns guilty of armed robbery. As relevant to the case before the Court, it sentenced him to four years ’ imprisonment for that crime. At the same time it ordered the execution of an earlier suspended sentence of ten months ’ imprisonment.

7. Mr Castelijns appealed. On 23 January 2015 the ‘ s-Hertogenbosch Court of Appeal ( gerechtshof ) quashed the judgment of the Regional Court on technical grounds and considering the evidence afresh also convicted Mr Castelijns of armed robbery. It proceeded to sentence him to four years ’ imprisonment and order the execution of the suspended sentence of ten months ’ imprisonment, as the Regional Court had done.

8. Mr Castelijns has lodged an appeal on points of law ( cassatie ) with the Supreme Court ( Hoge Raad ) which, as far as the Court is aware, is still pending. He remains in detention on remand as long as there is no final judgment.

(b) Proceedings relating to unsupervised visits

9. In February 2014 Mr Castelijns (then detained in a remand institution in Sittard) lodged a request with the governor of the remand institution (hereafter “the governor”) for permission to receive unsupervised visits ( bezoek zonder toezicht ) from his life partner, Ms H. The latter wrote to the governor separately in support of this request, citing the emotional needs of Mr Castelijns and herself as a couple.

10. On 26 February 2014 the governor informed Mr Castelijns orally that he had refused the request. On 4 March 2014 he so informed Ms H., referring to the regulatory framework.

11. Mr Castelijns lodged a complaint ( beklag ) against this decision with the complaints committee ( beklagcommissie ) of the supervisory board ( commissie van toezicht ) of the remand institution. He prayed in aid, in general terms, the Court ’ s case-law and the European Prison Rules.

12. On 17 March 2014 a single-judge formation of the complaints committee rejected Mr Castelijns ’ request, finding that he did not qualify for unsupervised visits since he was being held in a remand centre not an ordinary security prison and dismissing the reference to “European jurisprudence” as “lacking a sufficient basis” ( onvoldoende onderbouwd ).

13. Mr Castelijns appealed to the Appeals Board ( beroepscommissie ) of the Council for the Administration of Criminal Justice and Juvenile Protection ( Raad voor Strafrechtstoepassing en Jeugdbescherming ).

14. Mr Castelijns, assisted by counsel, prayed in aid the judgment of this Court in Varnas v. Lithuania , no. 42615/06, 9 July 2013.

15. The Appeals Board gave its decision on 8 August 2014 dismissing the applicant ’ s appeal.

2. Mr Smetsers (application no. 7603/15)

(a) Criminal proceedings

16. Mr Smetsers was arrested on 11 September 2013 on suspicion of having made preparations for the manufacture of illegal synthetic drugs. He was taken into police custody, then – on 13 September 2013 – into detention on remand.

17. Mr Smetsers ’ s trial opened before the Eastern Brabant Regional Court on 8 November 2013.

18. On 18 June 2014 the Regional Court ordered the suspension ( schorsing onder voorwaarden ) of Mr Smetsers ’ s detention on remand with effect from the following day and until the Regional Court gave judgment.

19. The Regional Court gave judgment on 19 September 2014. It sentenced Mr Smetsers to three years ’ imprisonment. Mr Smetsers was taken back into detention on remand immediately after the delivery of the judgment.

20. Mr Smetsers has lodged an appeal, which remains pending before the ‘ s -Hertogenbosch Court of Appeal. He remains in detention on remand as long as there is no final judgment.

(b) Proceedings relating to unsupervised visits

21. In February 2014 Mr Smetsers lodged a request with the governor for permission to receive unsupervised visits from his life partner.

22. On 26 February 2014 the governor informed Mr Smetsers orally that he had refused the request.

23. Mr Smetsers lodged a complaint against this decision with the complaints committee of the supervisory board of the remand institution. He prayed in aid, in general terms, the Court ’ s “judgment of 19 July 2013” (i.e. Varnas v. Lithuania ) .

24. On 17 March 2014 a single-judge formation of the complaints committee rejected the applicant ’ s request, finding that Mr Smetsers did not qualify for unsupervised visits since he was being held in a remand centre not an ordinary security prison and dismissing the reference to “European jurisprudence” as “lacking a sufficient basis”.

25. Mr Smetsers appealed to the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection.

26. Mr Smetsers, assisted by counsel, prayed in aid the Varnas judgment.

27. The Appeals Board gave its decision on 8 August 2014 dismissing Mr Smetsers ’ s appeal.

3. The reasoning of the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection

28. The decisions of the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection included the following reasoning, identical in both decisions:

“ Decision in the case in hand

As far as the Appeals Board can determine, the purpose of the detention on remand does not (or no longer) stand in the way of granting unsupervised visits in the present case. It is not apparent that there remained any interest linked to the investigation that would oppose unsupervised visits. Nor is there any need for special security.

Although, accordingly, these circumstances do not provide ground for denying unsupervised visits, such grounds can in the present case be found as will be explained. In the Netherlands, the differences between the possibilities for ordinary visits in remand institutions and in prison (unlike, apparently, in Lithuania) are quite inconsiderable as regards the frequency and length of visits. Moreover, in visits both in the remand institution and in prison some, albeit limited, physical contact is possible between the visitor and the prisoner, unlike in the European Court of Human Right ’ s Varnas case. Finally, unlike in the Varnas case, the (uninterrupted) length of the detention (in the remand institution) is not more than three years, but just over a year at the time of the complaint. There has therefore been no unjustified difference in treatment (discrimination) between [the applicant ] as a remand prisoner and convicts, even though [the applicant] was denied unsupervised visits. [The applicant] has not been discriminated against, because no significant differences can be found as regards frequency, length and physical contact between him as a remand prisoner and convicts; nor has he been discriminated against because a convict prisoner in practice does not generally qualify for unsupervised visits immediately after having been sent from free society to prison.

Although in the present case the request has been rejected by the governor with reference only to the circular of 2000, so that arguments particular to the case have not been decisive, the Appeals Board will not attach any consequences to his flawed reasoning. After all, terms of reference ( een toetsingskader ) for the purpose of the governor ’ s decision was, and remains, lacking and the governor ’ s decision is neither contrary to a legal provision nor unreasonable or unfair in the light of all relevant interests.

Obiter dictum

The case-by-case approach means that the governor, when faced with a request for unsupervised visits in a remand institution by a remand prisoner, will have to take a specific decision particular to the prisoner making the request and will not be able to consider the statement that the circular of 2000 does not provide for unsupervised visits sufficient. In general, the purpose of the detention on remand (in particular the question whether there is an investigative interest involved), the need for security and the length of the detention on remand will have their part to play in the governor ’ s decision. If the possibility for physical contact in regular visits should need to be further restricted in future, this will weigh in favour of a remand prisoner in deciding whether to allow him unsupervised visits.

It will have to be seen in practice whether the case-by-case approach is manageable or whether further regulation will be necessary. In the latter case, it will be for the regulator to act.”

B. Relevant domestic law and practice

29. On 8 September 2000 the Acting Head of the Prisons Service ( plv. directeur gevangeniswezen ), signing on behalf of the Minister of Justice ( Minister van Justitie ), issued a circular (reference 5041936/DJI) addressed to, among others, prison governors, secretaries of supervisory boards and the Central Council for the Administration of Criminal Justice ( Centrale Raad voor de Strafrechtstoepassing , predecessor to the Council for the Administration of Criminal Justice and Juvenile Protection). As relevant to the case before the Court, the circular sets out the following rules:

Section 1

“Unsupervised visits shall be possible in institutions or departments designated as ordinary security prisons.”

Section 2

“A prisoner shall qualify for unsupervised visits if the prisoner is held in one or more ordinary security prisons for an uninterrupted period of three months.”

30. In a decision of 29 October 2013 (no. 13/2012/GA), the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection gave a decision including the following reasoning:

“Turning to the merits, the Appeals Board finds as follows. The possibility of unsupervised visits is provided for in the circular of 8 September 2000 (reference 5041936/DJI). On the basis of that circular prisoners held in a prison with an ordinary security regime qualify for unsupervised visits. The complainant is held in a remand institution, in view of which he does not, in principle, qualify for unsupervised visits. Even so, the governor has, in the opinion of the Appeals Board, taken sufficient and adequate pains to accommodate the complainant – who is in detention for the purpose of extradition – as much as possible. That being so, the Appeals Board is of the view that the governor ’ s decision to refuse the complainant ’ s request is not unreasonable or unfair. ...”

C. Relevant international materials

1. Council of Europe

31. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2), replacing an earlier document dating back to 1987.

32. These Rules set out, inter alia, the following principle concerning remand prisoners:

“99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:

a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;

b. may receive additional visits and have additional access to other forms of communication; ...”

2. United Nations

(a) The Standard Minimum Rules for the Treatment of Prisoners

33. On 31 July 1957 the Economic and Social Council of the United Nations approved Standard Minimum Rules for the Treatment of Prisoners (resolution 663 C I (XXIV) ).

34. These Rules set out, inter alia , the following principle concerning both convict and remand prisoners:

“ PART I: RULES OF GENERAL APPLICATION

...

Contact with the outside world

Prisoners are to be allowed regular contact with family and friends, by both correspondence and personal visits.”

and as regards remand prisoners:

“ PART 2: RULES APPLICABLE TO SPECIAL CATEGORIES

...

P risoners under arrest or awaiting trial

...

An untried prisoner shall be allowed to inform his family of his detention immediately after arrest and communicate with and receive visits from family and friends. ...”

(b) The Revised Standard Minimum Rules for the Treatment of Prisoners (the “Mandela Rules”)

35. Revised Standard Minimum Rules for the Treatment of Prisoners (the “Mandela Rules”, UN Doc. E/CN.15/2015/L.6/Rev.1) were announced on 7 October 2015 in anticipation of their intended submission to the United Nations General Assembly. In so far as they may be relevant to the case before the Court, they read as follows:

“ Preliminary observation 3

1. Part I of the rules covers the general management of prisons, and is applicable to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to ‘ security measures ’ or corrective measures ordered by the judge.

2. Part II contains rules applicable only to the special categories dealt with in each section. Nevertheless, the rules under section A, applicable to prisoners under sentence, shall be equally applicable to categories of prisoners dealt with in sections B [Prisoners with mental disabilities and/or health conditions], C [Prisoners under arrest or awaiting trial] and D [Civil prisoners], provided they do not conflict with the rules governing those categories and are for their benefit.

...

I. Rules of general application

Basic principles

...

Rule 3

Imprisonment and other measures that result in cutting off persons from the outside world are afflictive by the very fact of taking from these persons the right of self-determination by depriving them of their liberty. Therefore the prison system shall not, except as incidental to justifiable separation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

...

Contact with the outside world

Rule 58

1. Prisoners shall be allowed, under necessary supervision, to communicate with their family and friends at regular intervals:

(a) By corresponding in writing and using, where available, telecommunication, electronic, digital and other means; and

(b) By receiving visits.

2. Where conjugal visits are allowed, this right shall be applied without discrimination, and women prisoners shall be able to exercise this right on an equal basis with men. Procedures shall be in place and premises shall be made available to ensure fair and equal access with due regard to safety and dignity. ... ”

COMPLAINT

36. Both applicants complain under Article 14 taken together with Article 8 of the Convention that the difference in treatment as regards unsupervised visits between remand prisoners like themselves and convict prisoners is not justifiable in terms of normal restrictions on family life inherent in deprivation of liberty.

QUESTIONS TO THE PARTIES

1. Can the Government provide information, including numerical data, on domestic practice as regards permitting remand prisoners to receive unsupervised visits as compared to convict prisoners?

2. As a result of the denial to them, as remand prisoner s not convict s , of unsupervised visits, have the applicants suffered discrimination

(a) in the enjoyment of their right to respect for their family life, contrary to Article 14 of the Convention read in conjunction with Article 8;

(b) in the enjoyment of a right set forth by law, contrary to Article 1 of Protocol No. 12?