Published on 29 January 2024

THIRD SECTION

Application no. 55447/22 Necmi KOC against the Netherlands lodged on 21 November 2022 communicated on 12 January 2024

SUBJECT MATTER OF THE CASE

The application concerns the question whether the applicant had at his disposal a procedure whereby the lawfulness of his confinement in a custodial clinic - ordered in the context of his placement at the disposal of the Government (hereafter “TBS-order”) - could be examined “speedily” by a court and his release ordered, in particular if new factors had arisen in between the periodic review intervals.

On 19 January 1999 the Regional Court convicted the applicant of multiple murders, possession of hard drugs and illegal weapons. In addition to a prison sentence of eight years, it imposed a TBS-order on him, with confinement in a custodial clinic. The order has since then been extended by the Regional Court for periods of one year or two years, with a conditionally release from the confinement in the custodial clinic on 7 September 2020 in order to assess whether he would function well under the supervision of the probation service. In 2021 the applicant violated the terms of his conditional release and was returned to the custodial clinic. On 15 March 2022 the TBS-order, including the confinement in the clinic, was extended by the Regional Court for two years. The applicant appealed, requesting to be again conditionally released from confinement in the clinic or, alternatively, to have the order extended for one year. On 28 July 2022 the Court of Appeal dismissed the appeal and confirmed the Regional Court’s decision.

The applicant complains under Article 5 § 4 that for nearly two years after the decision of the Regional Court on 15 March 2022 (as confirmed by the Court of Appeal on 28 July 2022) he has been unable to obtain a fresh review by a court of the lawfulness of his confinement in a custodial clinic.

QUESTION TO THE PARTIES

Did the applicant have at his disposal a procedure whereby the lawfulness of his confinement in a custodial clinic could be examined “speedily” by a court and his release be ordered, as required by Article 5 § 4? In particular, can any new relevant factors arisen in the intervals between periodic reviews be assessed, without unreasonable delay, by a court having jurisdiction to decide whether or not the confinement has become unlawful in the light of these new factors (see Keus v. the Netherlands , no. 12228/86, § 28, 25 October 1990; Gorshkov v. Ukraine , no. 67531/01, §§ 44-46, 8 November 2005; and Abdulkhakov v. Russia , no. 14743/11, §§ 212 and 215, 2 October 2012)?