THIRD SECTION

Application no. 69810/12 Isteyfo ÖZÇELİK against the Netherlands lodged on 25 October 2012

STATEMENT OF FACTS

1. The applicant , Mr Isteyfo Özçelik , is a Dutch national , who was born in Turkey in 1959 and lives in Enschede . He is represented before the Court by Mr J.J. Weldam , a lawyer practising in Utrecht.

A. The circumstances of the case

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

3. On 21 May 2010 the applicant was convicted of theft. The Almelo Regional Court ( rechtbank ) imposed the measure of placement in a Persistent Offenders Institution ( inrichting voor stelselmatige daders ) for the duration of two years on him. It took into account the statements of different police officers and probation officers who had had direct contact with the applicant. From these statements it appeared that the applicant was a drug addict who would not voluntarily cooperate with treatment plans. The Regional Court further decided that the measure would be reviewed six months from the date the judgment became final (5 June 2010).

4. On 1 December 2010 the Regional Court reviewed the measure and decided not to terminate it , because it was deemed that there was still a high risk of the applicant reoffending. The applicant appealed this decision on 6 December 2010 , but on 19 April 2011 the Arnhem Court of Appeal ( gerechtshof ) rejected the appeal.

5. On 19 May 2011 G.D. , the applicant ’ s personal case officer , issued a progress report about the applicant , containing , amongst other things , the following:

“[The applicant ] is currently residing in FPA De Cederborg . The placement is progressing reasonably well. ( ... )

If the measure were terminated , [the applicant] will immediately find himself in a situation where he has no income , housing or daily activities. The risk of reoffending is consequently high. To lower the risk of reoffending the measure should be continued.”

6. On 9 June 2011 the Regional Court decided to continue the measure once more , holding that there was a considerable chance that the applicant would reoffend after his release.

7. The applicant appealed that decision on 15 June 2011. On 8 November 2011 counsel for the applicant made inquiries with the Court of Appeal about the progress of the appeal and requested that its examination be given priority. Prior to the hearing before the Court of Appeal , counsel for the applicant requested in a letter of 18 November 2011 that , for the benefit of the applicant , an interpreter be present who spoke Aramaic or Assyrian , and he named an interpreter who spoke the correct language. On 12 December 2011 a hearing took place before the Court of Appeal. It appeared that the applicant was unable to understand the interpreter who spoke Assyrian. The case was adjourned for a maximum period of three months to allow counsel for the applicant to put written questions to certain of the applicant ’ s counsellors. It was also determined that case officer G.D. should be heard as an expert witness and that an interpreter speaking Aramaic should be present at the next hearing.

8. After a period of three months had elapsed , counsel for the applicant inquired with the Court of Appeal into the progress of the proceedings on 13 March as well as on 2 April 2012. The proceedings were resumed on 10 May 2012 , when a hearing took place. On that occasion case officer G.D. declared the following:

“[The applicant] is no longer addicted to substances. The risk of reoffending is maximally reduced at this moment. The parole board has made several attempts to include [the applicant] in a treatment plan , but unfortunately this has not been sufficiently achieved. The clinical features of [the applicant] play an important role in this , but Cederborg [the institution] could have signalled earlier that there were no further possibilities to treat [the applicant]. The measure has contributed to the protection of society since [the applicant] is no longer addicted , thus reducing the risk of him reoffending. [The applicant] is now residing in a halfway house and has been placed on the waiting list for sheltered accommodation.”

9. On 16 May 2012 the Court of Appeal delivered its judgment , holding , amongst other things , the following:

“No violation of Article 6 ECHR

The court considers that in the present case it cannot be said that the appeal was dealt with speedily within the meaning of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It took more then ten months after the appeal was lodged before it was dealt with on the merits. Unlike counsel [for the applicant] , the court is of the opinion that the decision to accept that a violation of the Convention has occurred in itself constitutes sufficient satisfaction of the infringed sense of justice.

Termination

The court has held that the execution of the measure has not been sufficiently expeditious in all stages. The court deems that the difficult progress of the measure cannot only be attributed to [the applicant] and finds that FPA De Cederborg could have signalled the difficult progress of the measure earlier.

Having regard to the fact that [the applicant] currently has accommodation where he can stay as well as a prospect of placement in appropriate sheltered accommodation where he can also stay if the measure is terminated , and the fact that partly due to this the risk that the termination of the measure will lead to endangerment , nuisance and degradation of society is small , the court considers that continuation of the measure is no longer necessary.”

B. Developments subsequent to the lodging of the application

10. On 22 February 2013, in reply to questions put to them pursuant to Rule 49 § 3 (a) of the Rules of Court on 26 November 2012, the Government submitted that the Court of Appeal had received the progress report on 19 May 2011 and that the situation of maximum reduced risk had been achieved when the applicant had stopped being addicted and housing had become available to him in the form of temporary shelter. As to the question what measures of compensation a Court of Appeal was able to impose in order to redress a situation where it had found that the proceedings had lasted too long, the Government replied that a Court of Appeal could immediately terminate the placement in a Persistent Offenders Institution , and that the Court of Appeal had indeed done so in the present case. In reply to the question whether there were examples of civil proceedings against the State in which compensation had successfully been sought for an undue delay in criminal or related administrative proceedings where the criminal or administrative court had not, or could not have, provided compensation for the established violation of the Convention, the Government referred to four judgments of the Court of Appeal of The Hague , in which that court had held that , in principle , on the basis of Articles 6 and 13 of the Convention , there was a presumption that a substantial violation of the reasonable time requirement constituted a wrongful act by the State ( onrechtmatige overheidsdaad ), giving grounds for the award of damages. Indeed , in another judgment referred to by the Government, that same court had allowed a claim for non-pecuniary damages resulting from a violation of the reasonable time requirement in a criminal case.

C. Relevant domestic law

11. The measure of placement in a Persistent Offenders Institution can be imposed if the criteria of article 38m of the Criminal Code ( Wetboek van Strafrecht ) are met. Article 38m § 1 reads as follows:

“The judge , upon request of the public prosecutor , can impose the measure of placement in a Persistent Offenders Institution if:

1 o . the offence committed by the accused is classified as a crime for which pre-trial detention ( voorlopige hechtenis ) is permitted;

2 o . in the five years prior to the offence committed by him , the accused has on at least three occasions been convicted by final judgment of a crime and sentenced to a custodial sentence or measure , a measure restricting his liberty or a community service order , or has had a community service order imposed on him by final penalty decision issued by the Public Prosecution Department ( strafbeschikking ) , and the offence was committed after the execution of these sentences or measures and , in addition , the likelihood of the accused reoffending is to be taken seriously; and

3 o . if the safety of persons or goods requires the imposition of the placement order.”

12. The measure is aimed at the protection of society and at ending recidivism (article 38m § 2). If the accused is an addict or if other specific problems exist which are connected to him or her committing criminal offences , the measure is also aimed at solving the addiction or other problems (§ 3).

13. The measure has a maximum duration of two years , counting from the day on which the judgment by which the measure was imposed became final (article 38n § 1).

14. When imposing the measure or afterwards, the judge may , at the request of the public prosecutor or the accused , or on his own accord , decide that an interim review of the necessity of the measure w ill take place (article 38s §§ 1). If no interim review was ordered when the measure was imposed, or if it was decided that a review should take place a year or more from the start of the execution of the measure , a request for review can be lodged six months after the start of the execution of the measure. In all other cases, a request for review can be lodged six months after a decision that no interim review is to take place or a decision not to terminate the measure has become final (§ 2). If the judge decides that continuation of the measure is no longer required , he terminates it (§ 3).

15. Pursuant to article 509gg of the Code of Criminal Procedure ( Wetboek van Strafvordering ) the Court of Appeal decides as speedily as possible on an appeal in a case involving the measure of placement in a Persistent Offenders Institution.

COMPLAINT

16. The applicant complains under Article 6 of the Convention that the proceedings on his appeal of 15 June 2011 against the continuation of his detention lasted too long. According to the applicant , the acknowledgement by the Court of Appeal that a violation of the Convention had occurred did not constitute compensation for this breach.

QUESTIONS TO THE PARTIES

1. Is the redress provided by the Court of Appeal , in respect of the Convention violation which it acknowledged , sufficient to consider that the applicant can no longer be considered a “victim” within the meaning of Article 34 of the Convention?

2a. What was the ( approximate ) date on which the applicant was no longer addicted to drugs and housing became available to him ?

2b. Can it be assumed that the Court of Appeal would have , from that date onwards , terminated the applicant ’ s placement in a Persistent Offenders Institute if it had decided on the appeal earlier?

2c. Was the Court of Appeal ’ s decision to terminate the applicant ’ s placement in a Persistent Offenders Instituted in any way prompted by , or connected to , that court ’ s finding that the proceedings at issue had not been conducted speedily? If so , where is this indicated in the decision?

3. Did the length of the proceedings in the present case comply with the “speed” requirement of Article 5 § 4 of the Convention?

4a. Did the Court of Appeal ’ s acknowledgement that the proceedings had lasted too long constitute sufficient compensation within the meaning of Article 5 § 5?

4b. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 4 , as required by Article 5 § 5 of the Convention?

4c. Are there examples of civil proceedings against the State in which compensation was successfully sought in relation to a court ’ s failure to decide speedily on the (continued) lawfulness of a detention , where the court responsible for that failure had already found that the proceedings had not been conducted with the required speed and had held that that acknowledgement constituted sufficient redress?