CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 juin 2016

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THE NETHERLANDS   (Application no. 69810/12)                 JUDGMENT     STRASBOURG   28 June 2016     FINAL   28/07/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Özçelik v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Johannes Silvis,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková,   Georgios A. Serghides, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 7 June 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 69810/12) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Netherlands national, Mr Isteyfo Özçelik (“the applicant”), on 25 October 2012. 2.     The applicant was represented by Mr J.J. Weldam, a lawyer practising in Utrecht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that the lawfulness of his continued detention had not been decided “speedily” as required by Article   5 § 4 of the Convention. 4.     On 4 June 2013 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1959 and lives in Enschede. 6.     On 21 May 2010 the applicant was convicted of shoplifting. 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). 7.     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 against this decision on 6 December 2010, but on 19 April 2011 the Arnhem Court of Appeal ( gerechtshof ) dismissed the appeal. 8.     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 should be 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.” 9.     On 9 June 2011 the Regional Court decided to prolong the measure further, holding that there was a considerable likelihood that the applicant would reoffend after his release. 10.     The applicant lodged an appeal against 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 gave the name of an interpreter who spoke the correct language. 11.     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. With the applicant’s agreement, 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. 12.     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 and again 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.” 13.     It would appear that sheltered accommodation became available for the applicant on 11 May 2012. 14.     On 16 May 2012 the Court of Appeal delivered its decision, holding, amongst other things, the following: “ No violation of Article 6 ECHR The Court of Appeal 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 than 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 for the outrage to his sense of justice. Termination The Court of Appeal has held that the execution of the measure has not been sufficiently expeditious in all stages. The Court of Appeal 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 of Appeal considers that continuation of the measure is no longer necessary.” II.     RELEVANT DOMESTIC LAW 15.     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.” 16.     The measure is aimed at the protection of society and at preventing reoffending (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). 17.     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). 18.     When imposing the measure or afterwards, the court may, at the request of the public prosecutor or the accused, or of its own motion, decide that an interim review of the necessity of the measure shall 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 court decides that continuation of the measure is no longer required, the measure shall be terminated (§ 3). 19.     Pursuant to Article 509gg of the Code of Criminal Procedure ( Wetboek van Strafvordering ) the Court of Appeal shall decide as speedily as possible on an appeal in a case involving the measure of placement in a Persistent Offenders Institution. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A.     Complaint about the length of the proceedings 20.     The applicant complained that it took the Arnhem Court of Appeal too long to decide his appeal of 15 June 2011 against the continuation of his detention. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 21.     The Court, as master of the characterisation to be given in law to the facts of the case (see, as a recent authority, Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), takes the view that it is appropriate to consider this complaint under Article 5 § 4, which provides as follows: “4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 1.     Admissibility 22.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2.     Merits 23.     The parties agreed that there had been a violation of Article 5 § 4 of the Convention in that the applicant’s appeal against the rejection for his request for release from a Persistent Offenders Institution was not decided “speedily”. 24.     In the present case, the Court is disposed to accept the Court of Appeal’s admission of a violation of Article 6 of the Convention contained in its decision of 16 May 2012 as an acknowledgment that the applicant’s rights under Article 5 § 4 have been violated. Note is taken of the heading “No violation of Article 6 ECHR”, which must be interpreted in context as meaning that no redress going beyond the sole finding of a violation is needed. 25.     Having regard to its abundant case-law in the matter (see, among many other authorities, Musiał v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II; and S.T.S. v. the Netherlands , no. 277/05, § 43, ECHR 2011), the Court sees no reason to hold otherwise. It accordingly finds a violation of Article 5 § 4. B.     Complaint about the failure to afford redress 26.     The applicant acknowledged that the Court of Appeal had recognised the violation of his rights by finding a violation of Article 6 of the Convention on that point but complained that it had failed to attach any consequences to that finding, and in particular, that it had failed to order his immediate release. 27.     The Court communicated this complaint to the respondent Government under Article 5 § 5, which provides as follows: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” 1.     The Government’s preliminary objections (a)     No longer a victim 28.     Relying on the Court of Appeal’s decision of 16 May 2012 ordering the applicant’s release ahead of time, the Government argued that the applicant could no longer be considered a “victim”, as that term is to be understood for purposes of Article 34 of the Convention, of the violation alleged. They pointed to the Court of Appeal’s finding of a violation of Article   6 § 1 of the Convention contained in its decision of 16 May 2012 and submitted that that finding was sufficient redress in the circumstances. 29.     The applicant recognised that the placement order had been terminated before the end of the two-year period for which it had been ordered, but argued this had been done on substantive grounds, not on any grounds related to the violation of the Convention. While recognising that “[t]he question whether the [Court of Appeal] would have terminated the [placement order] earlier if it had handled the substance of the case earlier is difficult to answer”, he submitted that he had received no compensation of any description for the violation found. (b)     No significant disadvantage 30.     In the alternative, the Government pointed to the Court of Appeal’s decision of 16 May 2012 to lift the placement order in advance of its scheduled end date of 4 June 2012, from which it followed that the applicant had suffered no significant disadvantage as a result of the violation of Article 5 § 4. 31.     The applicant did not comment. (c)     The Court’s decision on the Government’s preliminary objections 32.     As regards the Government’s first preliminary objection, the Court reiterates that a decision or measure favourable to the applicant is not, in principle, sufficient to deprive him or her of his or her status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, among many other authorities, O’Keeffe v. Ireland [GC], no. 35810/09, § 115, ECHR 2014 (extracts). 33.     In the present case all agree that the Court of Appeal acknowledged the violation of Article 5 § 4 here in issue (although referring, mistakenly, to Article 6 § 1). It failed, however, to provide any redress other than that. The applicant can accordingly still claim to be a “victim” of the violation of Article 5 § 5 alleged. 34.     With regard to the second objection, the Court observes that the “disadvantage” claimed – the absence of an “enforceable right to compensation” for the violation of Article 5 § 4 – is unconnected to the time the placement order had still to run. 35.     It follows that both the Government’s objections must be rejected. (d)     Conclusion as to admissibility 36.     The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. No other ground for declaring it inadmissible has been established. 2.     Examination by the Court (a)     Argument before the Court 37.     The Government argued that it was most unlikely that the applicant would have been released any sooner if the proceedings had been conducted with greater speed. They pointed to the statement of case officer G.D. at the hearing of 10 May 2012, according to whom the applicant was at that time no longer a substance abuser and had been placed on a waiting list for sheltered accommodation. As it was, such accommodation had become available the following day, on 11 May 2012. 38.     Moreover, the risk of reoffending had been reduced as far as possible, but not eliminated entirely. Admittedly the applicant had been released on 16 May 2012, but by then the end of his placement in an Institution for Persistent Offenders was in sight (4 June 2012) and the remaining few days would have made little difference in this respect. 39.     The Government suggested that the above considerations, taken together with the unreasonable length of the appeal proceedings, had informed the Court of Appeal’s decision to release the applicant. In the circumstances, therefore, the applicant had received sufficient redress in the form of a finding that the appeal had been unreasonably protracted and there was no violation of Article 5 § 5 of the Convention. 40.     The applicant countered that he had been cured of his addiction problems for some time prior to the hearing of 10 May 2012 and moreover the municipality was under an obligation to provide him with suitable housing at whatever time the need might arise. He therefore disputed the Government’s argument that he would likely not have been released any earlier had the proceedings been conducted with the necessary speed. 41.     The fact remained that the Court of Appeal had given its decision unnecessarily late and had merely taken note of that fact, not compensated for it. (b)     The Court’s decision 42.     In Emin v. the Netherlands , no. 28260/07, §§ 22-25, 29 May 2012, the Court held as follows: “22.     The Court has stated the applicable principles as follows (see, as a recent authority, Stanev v. Bulgaria [GC], no. 36760/06, § 182, 17   January 2012, with further references): (a)     Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. (b)     The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. (c)     In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty. ... 25.     The principles set out in § 22 above admit of no other conclusion than that Article 5 § 5 of the Convention creates a direct right to compensation once the national courts or the Convention institutions have found that an applicant has been deprived of his or her liberty contrary to Article 5 §§ 1-4 of the Convention (see Storck v. Germany , no. 61603/00, §   122, ECHR 2005 ‑ V). This has led the Court to find violations of Article   5   § 5 when domestic courts, while recognising the unlawfulness of applicants’ detention, nonetheless denied the applicant compensation on grounds that facts justifying the deprivation of liberty, albeit unrelated to the actual detention order, could be found (see Storck , §§ 121-22; Houtman and Meeus v. Belgium , no. 22945/07, §§ 45-46, 17 March 2009; Shulgin v.   Ukraine, no. 29912/05, §§ 64-65, 8 December 2011).” 43.     The present case is yet another such. There has accordingly been a violation of Article 5 § 5 of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 44.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 45.     The applicant claimed 12,720 euros (EUR) in respect of pecuniary and non-pecuniary damage combined. He based this claim on the rates paid in the Netherlands for detention of excessive length and on the premise that he would have been entitled to social benefits upon his release. 46.     The Government considered this claim excessive. 47.     The Court does not find it established that applicant suffered any pecuniary damage; it therefore rejects this claim. On the other hand, it awards the applicant the applicant EUR 1,500 in respect of non-pecuniary damage. B.     Default interest 48.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 5 § 4 of the Convention;   3.     Holds that there has been a violation of Article 5 § 5 of the Convention;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen Phillips   Luis López Guerra   Registrar   President