CEDH · PRESS;GENERAL;ENG — 11 mai 2004

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s34436385 { width:54.77pt; display:inline-block } .s86E5AE5B { width:104.14pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS 234 11.5.2004   Press release issued by the Registrar   Chamber judgments concerning the Netherlands   The European Court of Human Rights has today notified in writing the following two Chamber judgments, neither of which is final. [1] (Both judgments are only available in English.)   Brand v. Netherlands (application no. 49902/99)   Violation of Article 5 § 1 Morsink v. Netherlands (no. 48865/99)   Violation of Article 5 § 1   The applicants are F. C. Brand, born in 1956 and living in Eindhoven, and P. G. L Morsink, born in 1959 and currently staying in a custodial clinic in the Netherlands. Both are Dutch nationals.   The applicants were each convicted of assault causing grievous bodily harm and sentenced to 15 months’ imprisonment. In addition, finding that both applicants were suffering from a mental disorder posing a danger to society, the criminal courts ordered their confinement in a custodial clinic (a TBS clinic) - initially for a period of two years - once they had served their prison sentence.   However, both applicants were held in pre-placement detention in an ordinary remand centre while waiting for a place in the TBS clinic selected for them to become available: Mr Brand for over 14 months (from 10 October 1994 to 28   December 1995) and Mr   Morsink for over 15 months (from 5 February 1998 to 17   May 1999).   Under the rules in force prior to 1997, the Netherlands courts found that no more than a six-month delay in transferring Mr Brand to a TBS clinic was acceptable and ultimately awarded him 11,250 Netherlands guilders (NLG) in compensation for the remaining time spent in the remand centre.     Under the rules in force as from 1997, Mr Morsink was awarded NLG 1,350 in compensation for the prolongation of his pre-placement detention after 15 months and the fact that he had not been heard in relation to a court decision concerning his detention.      The applicants complained that their detention in a remand centre while waiting for a place in the TSB clinic selected for them was in violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights. The European Court of Human Rights observed that it would be unrealistic and too rigid an approach to expect the authorities to ensure that a place was immediately available in a selected custodial clinic. Consequently, a reasonable balance had to be struck between the need to manage public funds efficiently and the applicants’ right to liberty. A significant delay in admission to a custodial clinic and thus the beginning of the treatment of the person concerned would obviously affect the prospects of the treatment’s success within the statutory two ‑ year time-frame for the initial validity of a TBS order. Moreover, the chances of having to prolong the validity of the TBS order would, correspondingly, be increased. The Court could not find that such a reasonable balance had been struck in either case.   Bearing in mind that the problem of a structural lack of capacity in custodial clinics had been identified by the Netherlands authorities as early as 1986 and having found no indication in either case that, at the material time, the authorities were faced with an exceptional and unforeseen situation, the Court was of the opinion that even a delay of six months ( Brand ) or 15 months ( Morsink ) in the admission of a person to a custodial clinic could not be regarded as acceptable. To hold otherwise would entail a serious weakening of the fundamental right to liberty to the detriment of the person concerned and thus impair the very essence of the right protected by Article 5 of the Convention.   In both cases the Court applied Article 29 § 3 (decisions by Chambers on admissibility and merits) of the Convention and held, unanimously, that the applicants’ complaint about their pre-placement detention was admissible. By five votes to two the Court held that there had been a violation of Article 5 § 1 in each case and awarded Mr Brand 1,500 euros (EUR) and Mr Morsink EUR 6,000 for non-pecuniary damage.   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.