EHRM, 07-06-2011, nr. 277/05

The applicant was born in 1988 and lives in Groningen.

The applicant's parents' relationship ended in 1990. The applicant's mother was invested with parental authority.

In 2001 the Child Care and Protection Board (Raad voor de Kinderbescherming) investigated the applicant's situation because he had been displaying severe behavioural difficulties, had dropped out of school, had committed a number of crimes and appeared disinclined to acknowledge authority in any shape or form.

By a decision of 9 October 2002, the Juvenile Judge of the Groningen Regional Court (kinderrechter bij de rechtbank) placed the applicant under the supervision (ondertoezichtstelling) of the Groningen Juvenile Care Foundation (Stichting Jeugdzorg; ‘the Foundation’) for a period of one year and also issued an authorisation to the Foundation for the applicant's custodial placement in a confined institution for treatment (gesloten uithuisplaatsing) for a period of three months. On 14 November 2002 the applicant was admitted to Juvenile Institution ‘Het Poortje’, a confined institution for treatment, in order to be observed and psychologically examined.

On 8 January, 6 March and 3 April 2003 the Juvenile Judge prolonged the authorisation for the applicant's placement in a confined institution. The last such prolongation was set to expire on 9 October 2003 - one full year after the first decision.

On 1 August 2003 the Juvenile Judge received the Foundation's request (dated 29 July) for a prolongation of the authorisation for the applicant's custodial placement for the duration of the supervision order. Reference was made to a report containing the results of an examination of the applicant's personality by a remedial educationalist/psychologist that had been issued on 1 February 2003.

On 10 September 2003 a hearing was held before the Juvenile Judge. The applicant stated that he did not want to be placed in a confined institution for treatment and that his behaviour had improved. On behalf of the Foundation it was submitted that the applicant had recently been placed in Rentray, a confined orthopsychiatric institution for persons with severe behavioural difficulties, that the intended treatment would take one to one and a half years, and that it was out of the question that the applicant would be able to live with his father or his grandmother as he had indicated he wished to do. The Juvenile Judge stated that the report about the applicant's personality was clear and that a relapse, which was considered to be a real possibility, had to be prevented at all cost. Treatment was necessary, also in view of his age, and he had already been admitted to Rentray.

On 17 September 2003 the Juvenile Judge decided to prolong the period of supervision for one year, effective from 9 October 2003, and to prolong the authorisation issued to the Foundation for the applicant's custodial placement in a confined institution for treatment for the duration of the supervision order.

On 17 October 2003 the applicant lodged an appeal with the Leeuwarden Court of Appeal against the decision of 17 September 2003, in so far as it concerned the custodial placement.

A hearing was held on 11 December 2003. At the hearing the applicant's counsel, emphasising that the case was not a particularly complicated one, requested the applicant's immediate release as the case at issue had not been dealt with speedily within the meaning of Article 5 § 4 of the Convention. After having deliberated on this matter, the Court of Appeal considered that there appeared to be insufficient grounds to release the applicant immediately; nevertheless, a decision would be rendered as soon as possible and at the latest on 19 December 2003.

On 19 December 2003 the Court of Appeal quashed the decision of 17 September 2003 and prolonged until 1 May 2004, i.e. for six months rather than one year, the authorisation issued to the Foundation for the applicant's custodial placement in a confined institution for treatment. In this respect the court ruled:

As regards Article 5 § 4 of the Convention the Court of Appeal held as follows:

On 13 January 2004 the applicant lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). He complained explicitly of a breach of Article 5 § 4 of the Convention in that the Court of Appeal had been wrong to have had regard only to the period between 17 October 2003, the date on which the appeal had been lodged, and 19 December 2003, the date of the decision. He argued that the court should have included the period from 14 November 2002 until 17 October 2003 during which time he had also been deprived of his liberty, as well as the fact that (at that time) he had been a minor below the age of 16. He further claimed that the considerations of the Court of Appeal relating to the shorter time than usual for the submission of observations could not warrant the conclusion that the decision had been taken speedily, nor were they relevant in that context. The statement of points of appeal was lodged by a member of the Supreme Court bar, a lawyer practising in The Hague.

On 10 September 2004 an Advocate General (advocaat-generaal) to the Supreme Court, acting as deputy to the Procurator General (procureur-generaal), submitted an advisory opinion. She considered that as the period for which the authorisation had been granted had in the meantime lapsed, the applicant no longer had an interest in the appeal and it therefore ought to be declared inadmissible in accordance with the established case-law of the Supreme Court. Nevertheless, with a view to developing the law, the Advocate General addressed the merits of the appeal. Reference was made to the Court's judgments and decision in the cases of Sanchez-Reisse v. Switzerland (judgment of 21 October 1986, Series A no. 107), E. v. Norway (judgment of 29 August 1990, Series A no. 181-A), Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-…); Navarra v. France (judgment of 23 November 1993, Series A no. 273-B), and Bouamar v. Belgium (judgment of 29 February 1988, Series A no. 129). The Advocate General noted that the period between 17 October 2003, i.e. the date on which the appeal to the Court of Appeal had been lodged, and the hearing before that court on 11 December 2003 had already lasted 54 days, and that a further eight days had elapsed until the decision of 19 December 2003. However, the entire procedure — from the first request for a prolongation of the authorisation until the decision taken on appeal — had lasted from 1 August 2003 until 19 December 2003, that is a period of 141 days. As to other circumstances that had to be taken into consideration, such as the complexity of the case and the applicant's behaviour, the Advocate General pointed out that the prolongation at issue was based on reports that had been issued before the start of the proceedings in question and that the only delay that could be attributed to the applicant concerned the time elapsed between the decision of the Juvenile Judge of 17 September 2003 and the lodging of the appeal on 17 October 2003. The Advocate General concluded that, in her opinion, the decision of the Court of Appeal had not been taken speedily within the meaning of Article 5 § 4.

The applicant, through counsel, submitted a written response to the Advocate General's advisory opinion on 23 September 2004. He argued that the lawfulness of the detention orders following on from the original order depended on the lawfulness of the original order. Furthermore, domestic law provided for an appeal to the Supreme Court in cases such as the present; such an appeal could only be effective if the Supreme Court declared the applicant's appeal admissible and ruled on its merits.

By a final decision of 5 November 2004 the Supreme Court declared the applicant's appeal inadmissible for lack of interest, since the authorisation at issue had already lapsed in the meantime.

On 29 April 2004, shortly before the day on which the Court of Appeal's order of 19 December 2003 was due to expire (i.e. 1 May 2004), the Juvenile Judge of the Groningen Regional Court extended its validity for four more weeks. It was extended for a further two months on 19 May 2004. The intention was to transfer the applicant to an open setting during this time.

On 14 June 2004 the applicant was transferred to an open, i.e. non-custodial, unit within the Rentray institution. It appears that the applicant absconded from this unit three times between July and September 2004.

On 6 October 2004 the Juvenile Judge gave a new supervision order and authorised the applicant to be placed in a custodial institution for a period of six months backdated to 30 September 2004. The applicant and his mother appealed on 17 October and 4 November respectively.

On 8 December 2004 the Leeuwarden Court of Appeal, ruling on both appeals, shortened the placement order to three months instead of six on formal grounds. It dismissed an argument based on Article 5 § 4 of the Convention, holding that the proceedings had been sufficiently speedy, and that anyway a finding of a violation of the requirement of ‘speediness’ would not ipso iure have entitled the applicant to immediate release since such might well have gone against his own best interests.

It appears that the applicant remained in a secure institution until the time he reached his majority, which was in mid-2006.

According to Article 1:254 of the Civil Code (Burgerlijk Wetboek - ‘CC’), the Juvenile Judge may, on the application of inter alia the Child Care and Protection Board, order a minor child's placement under supervision of a family supervision agency (gezinsvoogdij-instelling) within the meaning of section 60 of the Juvenile Care Services Act (Wet op de Jeugdhulpverlening), if the child is growing up under such conditions that he or she is threatened with moral or physical ruin (zedelijke of lichamelijke ondergang). Such an order may be given for a maximum period of one year, but can be prolonged by a maximum of one year at a time (Article 1:256 CC).

If it is deemed necessary in the interest of the child's care and upbringing or for the purposes of an examination of the child's mental or physical health, the Juvenile Judge may further authorise a custodial placement of the child (Article 1:261 § 1 CC). An authorisation for a custodial placement in a confined institution can only be prolonged if this is required on account of severe behavioural difficulties of the minor concerned (Article 1:261 § 3 CC). Such an authorisation can only be given for a maximum period of one year, with the possibility of subsequent prolongations for a maximum of one year at a time (Article 1:262 § 1 CC).

An appeal against decisions taken in petition-based proceedings, including those of the Juvenile Judge, lies to the Court of Appeal (Article 358 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering - ‘CCP’)). The time-limit for bringing such an appeal is three months from the date of the decision (Article 358 § 2).

Pursuant to Article 426 § 1 CCP, those who have participated in the proceedings at first instance or at the appellate stage may lodge an appeal on points of law with the Supreme Court within three months from the date of the decision. Such an appeal is introduced by way of a petition signed by a member of the Supreme Court bar (Article 426a CCP). The Supreme Court shall decide after the Procurator General has submitted a written advisory opinion within a time-limit set by the Supreme Court itself (Article 429 § 1 CCP).

At the relevant time, the Supreme Court bar was composed of all legal practitioners who were members of the bar of The Hague and of them alone (section 1 (2) of the Legal Profession Act (Advocatenwet)).

It is standing case-law of the Supreme Court to declare appeals on points of law contesting the lawfulness of detention inadmissible if the detention has ended, for whatever reason, by the time the Supreme Court comes to consider the question. It did so, for example, in its judgment of 7 October 1997, Nederlandse Jurisprudentie (Netherlands Law Reports, ‘NJ’) 1998, no. 227.

The Supreme Court confirmed this position in its judgment of 31 May 2005, NJ 2005, no. 531, in which it declared inadmissible an appeal on points of law lodged by a person committed to detention for twelve days for failing to give evidence as a witness in court but who had been released nearly eleven months earlier. Even so, the Supreme Court saw fit to address the merits of the case obiter dictum, considering that had the appeal been admissible, it would have failed nonetheless.

The applicant further complained that the lack of expedition had deprived the proceedings of their effectiveness, since it had led the Supreme Court to declare his appeal on points of law inadmissible for lack of interest.

The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage. He argued that the Leeuwarden Court of Appeal ought to have found Article 5 § 4 to have been violated and, as a consequence, ordered his immediate release. He stated that this was what the Leeuwarden Court of Appeal had in fact done in a different case.

The Government considered the applicant's claim unjustified.

In a case like the present the basis for the Court's examination of the applicant's claim can only be the situation that would have obtained had the violation not taken place, not the situation that would have obtained had the domestic courts afforded redress under domestic law. The violation found in the present judgment lies in the lack of speediness and effectiveness of the proceedings before the Supreme Court; the Court cannot find it established that the Supreme Court would have ordered the applicant released had its decision been given any more speedily (E. v. Norway, cited above, § 70; compare also Nikolova v. Bulgaria [GC], no. 31195/96, § 76, ECHR 1999-II; H.L. v. the United Kingdom, no. 45508/99, §§ 148–49, ECHR 2004-IX; Fodale v. Italy, no. 70148/01, § 50, ECHR 2006-VII).

Nevertheless, the Court considers that the applicant has suffered non-pecuniary damage that cannot be made good merely by the finding of a violation of the Convention (compare Hutchison Reid v. the United Kingdom, no. 50272/99, § 87, ECHR 2003-IV; Kolanis v. the United Kingdom, no. 517/02, § 86, ECHR 2005-V; Mooren [GC], cited above, § 130). Deciding on an equitable basis, the Court awards the applicant EUR 2,000 under this head.

The applicant also claimed as ‘reasonable’ a sum of EUR 3,500 for ‘legal expenses’. He did not specify these or submit any corroborating documents.

The Government asked the Court to dismiss this claim as unsubstantiated.

According to the Court's consistent case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum; furthermore, legal costs are only recoverable in so far as they relate to the violation found (see, as recent authorities among many others, Kafkaris v. Cyprus [GC], no. 21906/04, § 176, ECHR 2008-…; Salduz v. Turkey [GC], no. 36391/02, § 78, 27 November 2008; Mooren [GC], cited above, § 134; Micallef v. Malta [GC], no. 17056/06, § 115, ECHR 2009-…; Gäfgen v. Germany [GC], no. 22978/05, § 196, ECHR 2010-…; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 109, ECHR 2010-…; and M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, 21 January 2011).

In the present case, all pertinent information is lacking. The Court therefore rejects the applicant's claim under this head in its entirety.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.