EHRM, 31-07-2012, nr. 21203/10

The applicant, Mr Hendrik Jan van der Velden, is a Netherlands national who was born in 1965. As far as the Court is aware, he is currently detained in a custodial clinic in Groningen.

On various dates in 2002, the applicant committed five bank robberies and stole four cars.

In the course of the criminal investigation, the applicant underwent psychological and psychiatric examinations. The report by the psychologist contains the following:

The psychiatrist's report contained the following:

Both recommended a finding of diminished criminal responsibility.

The applicant was tried by the Roermond Regional Court (rechtbank), which on 22 April 2003 convicted him of extortion and theft by means of breaking and entering. It sentenced him to six years' imprisonment. It ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter ‘TBS order’) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). Its reasoning, as relevant to the case before the Court, included the following:

The prosecution did not appeal against this judgment. The applicant did, but withdrew his appeal before it was heard.

The TBS order started to run on 29 August 2005, the day on which the applicant would otherwise have become eligible for provisional release from his prison sentence. On 12 September 2007, after an initial two-year term, the Roermond Regional Court extended it for a further two years.

On 7 July 2009 the public prosecutor applied to the Roermond Regional Court for a further two-year extension of the TBS order. The application stated that the original order had been given in connection with ‘a crime of violence directed against, or endangering, one or more persons’, and that it was necessary for the safety of others or the general safety of persons for it to be extended.

An expert report prepared by the custodial clinic, dated 29 June 2009, noted a certain improvement in the applicant's state but expressed the view that his return to society should be a gradual and supervised process. It accordingly recommended extending the TBS order.

The Regional Court, sitting in a composition other than at the time of the applicant's trial, gave its decision on 18 August 2009. It declared the public prosecutor's application inadmissible. Its reason for so doing was that the TBS order could not lawfully be extended beyond four years: the judgment of the trial court did not state that the applicant had been found guilty of an indictable offence (misdrijf) directed against, or endangering, the bodily inviolability of one or more persons (Article 38e § 1 of the Criminal Code (Wetboek van Strafrecht); see below). Its reasoning included the following:

The public prosecutor appealed, arguing that the danger posed to physical integrity was apparent from the circumstances in which the bank robberies had been committed. These had included the threat of violence using a handgun.

The custodial clinic submitted an additional report. It stated that the Regional Court's decision had raised the applicant's hopes, but that a process of gradual and supervised resocialisation remained preferable to the complete termination of the TBS order.

The appeal was heard by the Arnhem Court of Appeal, which gave a decision on 13 October 2009. Its reasoning included the following:

It went on to find that the applicant's use of a gas alarm pistol to threaten bank staff constituted violence directed not only against the mental integrity of persons but also against their bodily inviolability, which meant that the four-year maximum provided in Article 38e § 1 of the Criminal Code did not apply, and to extend the TBS order for one year.

The Government submitted that the applicant had not suffered any ‘significant disadvantage’, within the meaning of Article 35 § 3 (b), as a result of the violation alleged. In particular, a ‘significant disadvantage’ could not result from the mere fact that it was not the Regional Court responsible for originally imposing the TBS order but the Court of Appeal responsible for dealing with the application for the extension of that order which explicitly set out its grounds justifying the view that a ‘violent crime’ was in issue. Indeed, this was purely a question of law which did not require any investigation into the facts and the findings of the Court of Appeal could in principle be the same as those of the Regional Court which had imposed the TBS order in the first place.

In the Court's view the Government's argument begs the question whether the sentencing judgment delivered by the Roermond Regional Court on 22 April 2003 (see paragraph 8 above) can be construed in the sense suggested by the decision given by the Arnhem Court of Appeal on 13 October 2009 (see paragraph 16 above). This is a question going to the very heart of the case before the Court.

The Court of Appeal's decision, the lawfulness of which the applicant disputes, extended the TBS order by two years beyond the time during which the applicant could lawfully be detained under it if the crime of which the Regional Court convicted him be not a crime of violence. It also made further extensions possible for an indefinite period. It is therefore not possible for the Court to find that the applicant has not suffered any ‘significant disadvantage’ as a result of the alleged violation.

The Court notes that the application 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.

The applicant complained that the extension of the TBS order with confinement in a custodial clinic was not ‘lawful’ or in accordance with a ‘procedure prescribed by law’ after the end of the fourth year of its duration. He relies on Article 5 § 1 of the Convention, which, in its relevant part, reads as follows:

The Government contested this allegation.

The applicant stated that the Regional Court had convicted him of crimes not involving violence. Admittedly he had committed bank robberies displaying a handgun, but there had been no injury caused; the Regional Court's judgment of 22 April 2003 (paragraph 8 above) had referred only to harm caused to the ‘mental integrity’ of bank staff.

In the applicant's submission, whether the Regional Court had omitted a finding of actual or threatened bodily harm by accident or design, in the absence of any finding that the applicant's crimes had caused harm or danger to ‘bodily inviolability’ Article 38e § 1 limited the duration of the TBS order to no more than four years. The Court of Appeal had therefore not been entitled to prolong it any further, as it had done by reading things into the Regional Court's judgment that were not there; consequently, his detention had become unlawful after 29 August 2009.

The Government argued that the failure by the Regional Court to mention the fact that the applicant's crimes had been directed against physical integrity constituted an omission to which no consequences attached in law. However, it was clear from the Regional Court's judgment and from the case file that such was the nature of the applicant's acts; the judgment of the Regional Court having become final and unappealable, the Court of Appeal had therefore had the right and the duty to repair this omission.

The applicant countered that the Government's argument failed to take into consideration Article 359 §§ 7 and 8 of the Code of Criminal Procedure. That provision required the sentencing judgment, if it imposed a TBS order with confinement in a custodial clinic for a crime of violence, so to indicate giving reasons and threatened nullity for any failure to do so.

The Court has stated the applicable principles as follows (Medvedyev and Others v. France [GC], no. 3394/03, §§ 76–80, ECHR 2010):

The Court will first consider the domestic legislation in issue. Article 38e of the Netherlands Criminal Code provides that the total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the bodily inviolability of one or more persons (see paragraph 18 above). Article 359 § 7 of the Netherlands Code of Criminal Procedure provides that if a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the bodily inviolability of one or more persons, the judgment shall so indicate, giving reasons (see paragraph 19 above).

The Court will also have regard to the drafting history of Articles 38e of the Criminal Code and 359 of the Code of Criminal Procedure. The passages excerpted above (see paragraph 20) make it clear that the domestic legislature intends the trial court which first imposes the TBS order with confinement in a custodial clinic to consider whether the indictable offence committed is such as to warrant an order of indeterminate length. If the trial court so finds, it must so state in its judgment, giving reasons therefor; if it does not, then the order cannot be indeterminate. It is not then for the court which decides on the extension of the order to substitute its own view of the matter for that of the trial court.

Turning to the facts of the case, the Court observes that the Roermond Regional Court, in the judgment of 22 April 2003 imposing the TBS order with confinement in a custodial clinic, found that the applicant had committed an interference with the mental integrity of the staff of the banks which he had robbed. That same court, in its decision of 18 August 2009 (see paragraph 13 above), held (albeit in a different composition) that the judgment could not be construed as finding the applicant guilty of an offence directed against, or endangering, the bodily inviolability of one or more persons. Such a finding occurs for the first time in the decision of the Arnhem Court of Appeal of 13 October 2009 (see paragraph 16 above).

The Court cannot but consider that the decision of the Court of Appeal is incompatible with Articles 38e of the Criminal Code and 359 § 7 of the Code of Criminal Procedure. The drafting history of these provisions moreover removes any lingering doubt.

The foregoing considerations are sufficient to enable the Court to conclude that the applicant's continued detention beyond 29 August 2009 was not in accordance with domestic law. There has accordingly been a violation of Article 5 § 1 of the Convention.

The applicant also complained that the extension of the TBS order with confinement in a custodial clinic amounted to a retrospective increase of a penalty. He relied on Article 7 of the Convention, which, in its relevant part, provides as follows:

The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible.

However, having regard to the finding relating to Article 5 § 1 (see paragraph 36 above), the Court considers that it is not necessary to examine whether, in this case, there has been a violation of Article 7 as well.

Article 41 of the Convention provides: