THIRD SECTION

Application no. 52269/11 E.M.S. against the Netherlands lodged on 16 August 2011

STATEMENT OF FACTS

The applicant is a Dutch national, who was born in 1991 and lives in Almere . He is represented before the Court by Ms E.C. Cerezo-Weijsenfeld , a lawyer practising in Haarlem .

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

The applicant had lived with his mother and step-brother for most of his life. The family had been under supervision of social services for years. The applicant and his step-brother acted aggressively towards each other and the applicant at a certain point also threatened to harm himself. After having skipped school now and again for some time, the applicant quit school altogether in December 2006. The Youth Care Agency ( Bureau Jeugdzorg ) became aware of the applicant ’ s situation and advised placement in Groot Emaus , a residential and treatment facility for people with psychological and learning difficulties. The applicant was informally placed on the waiting list on 27 February 2007. On 8 March 2007, the Juvenile Judge ( kinderrechter ) of the Zwolle- Lelystad Regional Court issued a custodial placement order ( machtiging uithuisplaatsing ) for a period of three months and placed the applicant under supervision ( ondertoezichtstelling ) of the Youth Care Agency for a period of one year, which period was subsequently prolonged for another year in March 2008. From March to August 2007, the applicant was placed in three different reception facilities, from each of which he ran away to stay at home or with friends. On 1 August 2007, the Juvenile Judge issued an urgent custodial placement order in an institution for juveniles ( spoedmachtiging uithuisplaatsing in een justitiële jeugdinrichting ), which order was subsequently prolonged on 14 August 2007, 18 October 2007 – the latter decision being confirmed by the Court of Appeal –, 6 March 2008 and 10 June 2008. The stated ground for these orders was that problems in the applicant ’ s upbringing were seriously hindering his development towards adulthood, as a result of which a stay in a closed institution for juveniles was deemed imperative.

On the basis of the placement order the applicant was placed, on 2 August 2007, in the custodial institution for juveniles Het Poortje . On 23 August 2007 he was transferred to Rentray , another custodial institution for juveniles, where he was placed in a group containing juveniles who were being held in pre-trial detention or were serving a custodial sentence. During his stay at Rentray , the applicant described himself as sad and depressed because he was locked up.

A report containing a psychological diagnostic assessment of the applicant was finalised on 18 March 2008. It concluded that the applicant had a Pervasive Developmental Disorder Not Otherwise Specified and recommended he be placed in Groot Emaus , i.e. the same (non-custodial) treatment facility already selected for him in January 2007.

On 23 April 2008, an official indication decision for placement in Groot Emaus was taken, while the earlier indication of 27 February 2007 was taken into account for the applicant ’ s place on the waiting list.

In the above-mentioned decision of 10 June 2008 to prolong the custodial placement order once more, the Juvenile Judge held that although she considered it unacceptable that the applicant had to stay for a long time in closed institutions for juveniles due to the problem of waiting lists, there was no other option.

On 12 June 2008 the applicant ’ s representative filed a petition with the Zwolle- Lelystad Regional Court to be appointed his special guardian ( bijzonder curator ) so that summary proceedings might be instituted against the State on the applicant ’ s behalf in order to enforce placement in Groot Emaus . This petition was granted on 26 June 2008.

Even though summary proceedings were not actually instituted, the applicant ’ s representative did submit a draft indictment to the Minister for Youth and Family ( Minister voor Jeugd en Gezin ), the Minister of Health, Welfare and Sport ( Minister van Volksgezondheid , Welzijn en Sport ) and other responsible bodies, and requested that a plan of action be drawn up within four weeks setting out how treatment of the applicant at the place most suitable for him would be ensured within a very short time. A plan of action was produced on 17 July 2008. While the applicant agreed with the plan, he did submit that he was angry because he had been kept detained for nearly a year without treatment. The damage caused to him could not be undone, but a financial compensation would nevertheless be appropriate. No reply was received to this request for compensation.

On 29 July 2008 the applicant was placed in Groot Emaus .

On 30 January 2009 the applicant lodged a request with the Minister for Youth and Family (hereafter: the Minister) for financial compensation for the period of almost twelve months that he had been placed in a custodial institution for juveniles without receiving any treatment. An objection ( bezwaar ) against the Minister ’ s failure to decide on that request was lodged on 7 May 2009. The Minister rejected the request on 15 July 2009, on the grounds, inter alia , that the applicant ’ s placement in custodial institutions had been in conformity to the law, that all the necessary court orders had been given, and that the indicated treatment for the applicant had started after the finalisation of the diagnostic report.

In his objection against the Minister ’ s decision, the applicant referred to Article 5 § 1 (d) of the Convention. The objection was declared inadmissible on 6 October 2009, with the Minister considering that since the law did not provide for compensation in cases such as these and since any damage suffered by the applicant could not be attributed to the Minister, proceedings pursuant to administrative law were not available to the applicant. Only in civil proceedings could the question whether or not compensation should be granted be dealt with.

The applicant ’ s appeal to the Zutphen Regional Court was rejected on 14 April 2010. The Regional Court , considering inter alia that no objection or appeal lay to the administrative courts as regards the Minister ’ s alleged failure to eliminate the waiting lists in the juvenile care system, found that the applicant ’ s objection had correctly been declared inadmissible. Even if a request for compensation in civil proceedings entailed a longer duration and higher cost for the applicant, this did not mean that there was a lack of access to court or of an effective remedy.

In his further appeal ( hoger beroep ) to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) the applicant argued inter alia that minors are not entitled to institute civil proceedings according to Dutch law. This argument was rejected; in its decision of 23 February 2011 dismissing the applicant ’ s further appeal, the Administrative Jurisdiction Division held that the applicant ’ s statutory representative ( wettelijk vertegenwoordiger ) was able to institute civil proceedings on the applicant ’ s behalf.

COMPLAINTS

The applicant complains that his having been placed, as a minor and on the basis of an order issued by a civil court, in a custodial institution for juveniles for almost twelve months, awaiting placement in a suitable facility, and without receiving treatment, constituted a violation of Article 5 § 1 (d) of the Convention. Furthermore, he complains under Article 5 § 5 that he had no enforceable right to compensation for the time he spent in the aforementioned facility.

QUESTIONS

1. Can the applicant still be considered a “victim” within the meaning of Article 34 of the Convention in relation to his complaints that his detention in Het Poortje and Rentray between 2 August 2007 and 29 July 2008 was not compatible with Article 5 § 1 (d) and that he did not receive any compensation for that period of detention in conformity with Article 5 § 5?

2a. Which remedies did the applicant have at his disposal to expedite the realisation of the order for his placement in an appropriate treatment facility?

2b. Has the applicant exhausted any such effective remedies, as required by Article 35 § 1 of the Convention?

3a. Which remedies did the applicant have at his disposal to obtain compensation for the alleged violation of Article 5 § 1 (d) of the Convention?

3b. More specifically, was the applicant expected, through his mother or a court-appointed special guardian ( bijzonder curator ), to initiate civil proceedings for tort in order to obtain such compensation?

3c. Has the applicant exhausted any such effective domestic remedies, as required by Article 35 § 1 of the Convention?

4a. Why did it take nearly 12 months for the applicant to be transferred to an appropriate treatment facility?

4b. Is a waiting period of such length during which the applicant was deprived of his liberty lawful according to Dutch law?

4c. Is a waiting period of such length in accordance with the requirements of Article 5 § 1 (d) of the Convention?

4d. If this is not so, does the applicant have an enforceable right to be compensated for such a waiting period in conformity with Article 5 § 5?