EHRM, 30-06-2005, nr. 5379/02

A person who has been found guilty of certain serious crimes and who, at the time of committing the offence, suffered from a mental deficiency or derangement may be placed at the Government's disposal if required in the interests of the safety of others or, more generally, in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall be confined in a secure institution in the interests of public safety (Article 37b § 1).

According to Article 38d of the Criminal Code, the person concerned shall be placed at the disposal of the Government for an initial period of two years which may be prolonged, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons, or such further extension is necessary for the protection of other persons (Article 38e).

In a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, the Supreme Court declared null and void a decision of a trial court because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record.

In two other judgments, delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) respectively, decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held.

The applicant alleged that Article 25 of the Code of Criminal Procedure, which requires an official record to be drawn up of hearings in camera, had been disregarded by the Court of Appeal. From this it followed, in his submission, that the prolongation of his placement at the Government's disposal with confinement to a secure institution had not been ordered ‘in accordance with a procedure prescribed by law’, as required by Article 5 § 1 of the Convention.

The applicant pointed to the terms of Article 25 of the Code of Criminal Procedure, paraphrased above. An official record of a hearing was, in his submission, a record of what was said and done during a hearing, and was therefore entirely different in nature from a judicial decision which followed a hearing in time.

In the applicant's submission, the Code of Criminal Procedure also recognised the difference in principle between decisions and official records of hearings. He quoted a large number of domestic legal provisions in support of this argument, as well as a number of comments by learned authors, the drafting history of the legal provision concerned and case-law of the Supreme Court.

Finally, the applicant argued that the importance of a separate official record of the hearing was its character as a public record of everything that was actually discussed at the hearing, perhaps including matters which did not make their way into the eventual decision.

The Government admitted that it was the normal practice of the Arnhem Court of Appeal not to draw up separate official records in cases of this nature, thus saving time and money. Instead, a summary of what was said by the person concerned or his counsel was incorporated in the document containing the decision. The Government submitted that this was sufficient to satisfy domestic law. In any event, they argued, an official record in the form of a separate document would have had no added value whatsoever for the applicant.

It is no longer in dispute that the applicant's continued detention was ‘lawful’ in the sense that the authorities of the respondent Party found sufficient substantive grounds for their decision. The sole question remaining is whether the absence of a separate document containing an official hearing of the Arnhem Court of Appeal's hearing of 9 April 2001 violated Article 5 § 1 of the Convention.

The Court would acknowledge in general the usefulness of keeping detailed records of what happens at hearings. It points out that the importance of such a record may transcend national proceedings; indeed, such a record may enable relevant facts to be established by an international body called upon to investigate complaints arising from domestic proceedings (compare Pardo v. France, judgment of 20 September 1993, Series A no. 261-B).

Nonetheless, neither Article 5 nor any other provision of the Convention or its Protocols contains a requirement that an official record of a hearing be kept, whether verbatim or in summary form. It follows a fortiori that incorporating a record of events occurring and words spoken at a hearing in the resulting court decision is not in itself contrary to the Convention. The absence of an official record as a separate document can therefore only raise questions under the Convention in so far as the Convention refers back to domestic law.

Precisely on the question whether detention is ‘lawful’, including whether it complies with ‘a procedure prescribed by law’, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof (see, among many other authorities, Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24; Öcalan v. Turkey [GC], no. 46221/99, § 83, 12 May 2005).

It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, as a recent authority, Öcalan, cited above, § 84).

Domestic case-law specifically finding fault with the Arnhem Court of Appeal's practice of not drawing up separate official records of its hearings in cases concerning the prolongation of placements at the Government's disposal does not exist. Nor could it: the Arnhem Court of Appeal's decisions in the matter are final and not subject to any appeal (see paragraph 24 above).

Two different provisions of the Code of Criminal Procedure set out the formal requirements to which the review chamber's decisions and its official records must conform, namely Articles 24 and 25 respectively. There is a certain overlap in that both must be signed by the president of the review chamber and the registrar who attended the hearing and both are added to the case file.

Responsibility for the two documents, however, is attributed separately. It is implicit in the nature of a decision that its content is the collective responsibility of the judges who constitute the review chamber. In contrast, the official record is primarily the responsibility of the registrar; it is he who prepares it, and he who finalises it together with the president of the review chamber or one other judge.

More importantly, the case-law of the Netherlands Supreme Court sets out the purpose of the official record in domestic law, which is to record the observance of the applicable formal requirements. The Supreme Court has consistently held that this function cannot be fulfilled by the decision (see paragraphs 26 and 27 above).

There is no reason to doubt that, had it had jurisdiction to do so, the Supreme Court would have found the practice of the review chamber of the Arnhem Court of Appeal in violation of domestic procedure. The Court is thus led to conclude that the procedure prescribed by domestic law was not followed.

There has accordingly been a breach of Article 5 § 1.

The applicant claimed 1,000 euros (EUR) in respect of non-pecuniary damage. He did not claim compensation for pecuniary damage.

The Government were prepared to acquit the applicant of a debt which he owed to the State.

The Court finds that, in the circumstances, the finding of a violation constitutes sufficient just satisfaction in respect of any non-pecuniary damage which the applicant may have suffered.

Having received State-financed legal aid in the domestic proceedings, the applicant claimed reimbursement only of the costs and expenses which he had incurred in the proceedings before the Court. He submitted that he was liable to pay his representative EUR 130 per hour for 15.5 hours' work referable to the complaint declared admissible, plus EUR 99.96 for translation costs and EUR 120.90 for office expenses; value-added tax came to EUR 405.82. The legal aid payable by the Court, EUR 701, had to be deducted from this sum. The final amount claimed was thus EUR 1.840,72.

The Government accepted these amounts.

The Court allows the applicant's claim in respect of costs and expenses in its entirety, that is EUR 1,840.72 including value-added tax and after deduction of the legal aid amount paid by the Court.

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.