BRAND v. THE NETHERLANDS

FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 49902/99
by Fredericus C. BRAND
against the Netherlands

The European Court of Human Rights (First Section), sitting on 11 September 2001as a Chamber composed of

MrsE. Palm, President,
MrsW. Thomassen,
MrL. Ferrari Bravo,
MrC. Bîrsan,
MrJ. Casadevall,
MrB. Zupančič,
MrT. Panţîru, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application introduced on 20 July 1999 and registered on 27 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Dutch national, born in 1956 and living in Eindhoven. He is represented before the Court by Mr M.A.M. Wolters, a lawyer practising in Groningen.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 23 June 1994 the ’s-Hertogenbosch Regional Court (Arrondissementsrechtbank) convicted the applicant of participation in robbery with use of violence resulting in grievous bodily harm and sentenced him to fifteen months’ imprisonment with deduction of the time spent in pre-trial detention. In addition, having found that the applicant was suffering from a mental disorder and dangerous, the Regional Court further imposed a TBS order (terbeschikkingstelling) with confinement to a secure institution (met bevel tot verpleging van overheidswege).

On 10 October 1994, when the applicant had served his prison sentence, the TBS order took effect. However, the applicant was not transferred to a secure institution. He remained in detention in the ‘s-Hertogenbosch ordinary remand centre, mainly because of a lack of place in any secure institution.

In order to expedite his admission to a secure institution, the applicant instituted summary civil proceedings (kort geding) against the Netherlands State. He withdrew these summary proceedings after his transfer to a secure institution in Nijmegen on 28 December 1995.

On 8 February 1996, the applicant took civil proceedings against the Netherlands State before the Hague Regional Court, claiming compensation for tort (onrechtmatige daad) in an amount of 29,200 Netherlands guilders (NLG), i.e. an amount of NLG 50 for each day during the first ten months of his detention after 10 October 1994 pending transfer to a secure institution and NLG 100 for each subsequent day until 28 December 1995.

In its judgment of 24 July 1996, the Regional Court held that a delay of six months was acceptable for a transfer to a secure institution and that the Netherlands State had only acted unlawfully insofar as this delay had exceeded six months. It awarded the applicant compensation in the amount of NLG 50 for each day spent in detention awaiting admission to a secure institution between 6 and 10 months after 10 October 1994 and NLG 100 for each subsequent day until 28 December 1995, i.e. a total amount of NLG 20,100. It rejected the applicant’s claim for the remainder.

The Netherlands State filed an appeal with the Hague Court of Appeal (Gerechtshof). The applicant filed a cross-appeal (incidenteel beroep) in which he reduced his claim for damages to an amount of NLG 24,900 in that he no longer sought compensation for the first three months of the period between 10 October 1994 and 28 December 1995.

In its judgment of 20 March 1997, the Court of Appeal rejected the principal appeal filed by the Netherlands State. It did, however, quash the judgment of 24 July 1996 on the basis of the cross-appeal filed by the applicant insofar as in this judgment the applicant’s claims in excess of NLG 20,100 had been dismissed. It ordered the Netherlands State to pay a further amount of NLG 4,800 to the applicant. The Netherlands State filed an appeal in cassation with the Supreme Court (Hoge Raad).

On 5 June 1998, the Supreme Court quashed the judgment of 20 March 1997 and referred the case back to the Amsterdam Court of Appeal. It held inter alia:

“3.3  Article 9 § 1 (b) of the Prison Act (Beginselenwet Gevangeniswezen) reads:

“The remand centres are destined: b for admission of all others, who are lawfully deprived of their liberty by a judgment or judicial decision or by a public authority, insofar as no other place has been indicated or for as long as admission to the place indicated for them is not possible.”

The point of departure in the examination ... must therefore be that the continued stay in the remand centre “for as long as admission to the place indicated for him is not possible” is in principle lawful as being based on the law. ...

However, where it can no longer reasonably be held that the fact that admission to a secure institution is not forthcoming remains justified by the circumstances, the continuation of detention in the remand centre must be regarded as unlawful (Supreme Court 28 June 1963, Nederlandse Jurisprudentie 1963, 480). ...

3.4.1  ...

3.4.2   ... the findings of the Court of Appeal concern a situation prior to the entry into force of Article 12 of the Act on confinement to a secure institution of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden). ... this provision entered into force on 11 July 1997. The Supreme Court’s following considerations will thus concern the legal situation until 11 July 1997.

3.4.3  In 1963 the Minister of Justice gave an undertaking to the Upper House of Parliament that the admission to a secure institution of persons in respect of whom a TBS order had been given and in respect of whom a secure institution had been selected would take place within eight weeks after the TBS order had taken effect. ...

In a letter to the Lower House of Parliament of 3 June 1986, the State Secretary of Justice ... stated that she was unable to maintain this undertaking given the growth of the waiting lists.

Article 12 of the of the Act on confinement to a secure institution of persons subject to a TBS order reads:

“1.The admission of a person in respect of whom a TBS order has been issued takes place within a period of six months after the date on which the TBS order has become effective.

2.When Our Minister, taking account of the requirements mentioned in Article 11 § 2 , considers that admission is not possible within the period set out in the first paragraph, he may extend this period by three months each time.

3.With a decision to extend within the meaning of the second paragraph is equated a refusal to decide within the period mentioned in the first paragraph.”

In the Explanatory Memorandum to this Article it is stated inter alia:

“... in the proposed first paragraph of Article 12 a delay of six months is set out within which period in general the admission must be effectuated. This delay has been opted for on the basis of the consideration that, in addition to the previously accepted guideline for a maximum duration for a TBS admission of twelve weeks, also the time needed for the selection examination, the consultation with the envisaged institution of admission and the decision-making at the Ministry must be taken into consideration.

In 1986 my predecessor has abandoned the above mentioned delay of twelve weeks as, due to the lack of capacity of the institutions including the Dr F.S. Meijers Institute, this delay could no longer be respected.

It cannot be expected within a foreseeable time that all persons in respect of whom a TBS order has been issued can be admitted to the institution destined for them within the stated delay. The proposed second paragraph of Article 12 opens therefore the possibility of an extension of the six months period by three months each time.”

3.4.4  The following must be derived from the statements of the Minister and the State Secretary of Justice. After 1963, the Government apparently assumed that the undertaking made in 1963 concerned the time needed for selection and admission of persons awaiting admission to a secure institution and that this period would not exceed a maximum of twelve weeks. The State Secretary has “abandoned” this undertaking in 1986 on grounds of “the lack of capacity of the institutions, including the Dr F.S. Meijers Institute”. It follows from this that, where the above mentioned lack of capacity is not taken into consideration, the point of departure is that the procedure of selection and admission of persons subject to a TBS order in principle does not need to take more than three months. The consequences of this lack of capacity and other circumstances that can influence the delay of admission will be addressed in considerations nos. 3.4.5 – 3.4.10.

In the light of the presupposed standard in 3.3 it can, however, not be said that already the mere exceeding of the three months’ delay renders, under Article 9 § 1 (b) of the Prison Act, a lawful detention in a remand centre into an unlawful detention. This situation only arises where it can no longer reasonably be held that the failure to admit to a secure institution remains to be justified by the circumstances. Only then can it be said that, although there is a legal basis for the continued detention in a remand centre of a person subject to a TBS order, a further duration of that detention is contrary to what is fitting conduct in society according to unwritten (customary) law (in strijd is met hetgeen volgens ongeschreven recht in het maatschappelijk verkeer betaamt).

3.4.5  For cases like the present one, this unwritten law is as follows.

It must be stated first that the TBS order in cases like the present one starts to run from the date of early release and that the Minister of Justice, pursuant to Article 4 of the TBS Execution Rules (Reglement tenuitvoerlegging TBS) (as in force until 2 October 1997), had to decide “as soon as possible on the admission to a institution intended to execute the confinement order”. This did, however, not mean that the Minister of Justice was obliged to ensure that the required capacity for persons subject to a TBS order was available at any given point in time. A certain friction between available and needed capacity is indeed acceptable from a point of view of efficient expenditure of financial means. It has already become clear in 3.4.3 that the Minister of Justice, when he allowed a delay of twelve weeks in 1963, took into account beforehand that this delay would not be sufficient in all cases.

It further needs to be taken into consideration that Article 12 of the Act on confinement to a secure institution of persons subject to a TBS order entered into force on 11 July 1997. In this provision, the identical text of which was already included in the Bill submitted on 12 October 1993, the point of departure is an admission delay, continuously eligible for extension, of six months. The views of the Government and Parliament that have appeared during the history of the adoption of the aforementioned Act are relevant in the examination of the question which delay in a remand centre awaiting admission to a secure institution destined for the person concerned in general can be considered as justified by the circumstances and thus acceptable in society.

Noting the above and with due regard for the considerations set out in 3.4.4, the Supreme Court is of the opinion that after the end of the prison sentence the continued detention in a remand centre for a period of six months of a person subject to a TBS order awaiting admission to a secure institution destined for him cannot be regarded as unlawful. A period longer than six months was unlawful, unless there were special circumstances as referred to in 3.4.7 below.

3.4.6  ...

3.4.7  In part 6 the complaint is raised that the Court of Appeal has not accepted that it is incompatible with the standard given in the Supreme Court’s judgment of 28 June 1963 (NJ 1963, 480) that a distinction is made between general circumstances, which could be relevant for a waiting period for admission to a secure institution of three months, and special circumstances which could be relevant for the period after three months. The Supreme Court assumes that this complaint has also been raised for the situation as in the present case that it would be held that the maximum acceptable waiting period is not three but six months.

The complaint fails. Only on grounds of special circumstances to be submitted by the State and in case of dispute to be proven relating to the person concerned and/or the State – such as for instance an incidental and extensive friction between available and required capacity for persons subject to a TBS order – can an exceeding of the maximum duration of an admission delay be justified.

3.4.8  ...

3.4.9  ...

3.4.10  Since the State has not aduced special circumstances as referred to in 3.4.7, the above entails that the detention of in the ‘s-Hertogenbosch remand centre must be considered as unlawful as from the moment when six months had passed after the start of his stay there awaiting admission .

3.4.11  ...

3.4.12  The complaint set out in part 10 about the reasons is well–founded. The State has disputed ... on grounds that cannot be immediately refuted that the ending date of the TBS would move where the starting date has been postponed. By ignoring this, the Court of Appeal has not sufficiently reasoned its finding challenged.

3.4.13  Part 10 further contains a complaint that the Court of Appeal has used an incorrect standard in the determination of the compensation by assuming that the stay of in the remand centre can at best be compared to the case of a suspect having spent more time in pre-trial detention than was justified. Also this complaint is well–founded. The unlawfulness of the detention in a remand centre after six months does not arise from the continued deprivation of liberty but from the failure to timely start treatment in a institution destined for this. The comparison used by the Court of Appeal does not fit the nature of this form of unlawfulness and the immaterial damages resulting therefrom. It fits with this nature to determine the scope of this damage according to equity and with due regard to all circumstances of the case, including the duration of the continued stay of a person awaiting admission to a secure institution in a remand centre and the possible influence of this on the (possibilities of) treatment.”

On 10 January 1999, the TBS order against the applicant expired. The public prosecutor had not sought a prolongation of this order.

In its judgment of 25 February 1999, the Amsterdam Court of Appeal quashed the judgment of the Hague Regional Court of 24 July 1996 insofar as it had awarded compensation to the applicant in an amount of NLG 20,100. It awarded the applicant compensation in an amount of NLG 11,250, rejected the remainder of his claim and upheld the judgment of 24 July 1996 for the remainder.

The Amsterdam Court of Appeal found it established that the delay of admission of the applicant to a secure institution constituted an unlawful act insofar as this delay had exceeded a period of six months. It held that the applicant had been unable to demonstrate that in his case there were special circumstances on grounds of which it should be held that a delay in excess of three months already constituted an unlawful act. It agreed with both parties to the proceedings that it could not be determined what, in concrete terms, the effect had been of the applicant’s lengthy stay in the remand centre on his treatment. Relying on a report of 5 December 1996 by the National Ombudsman, the Court of Appeal further held that also no general definite findings could be made as to such an effect. It did not find it established that, in the applicant’s case, the delay of admission had had a great and acute negative influence on the possibilities of treatment.

As to the determination of the compensation to be awarded to the applicant, the Court held that this was to be determined on an equitable basis and with due regard to all circumstances of the case in that it constituted financial compensation for feelings of uncertainty and irritation. The Court of Appeal held that an amount of NLG 1,000 for each month in excess of six months constituted adequate compensation. Further, having found it established that the applicant’s feelings of unrest had become more intense with the passage of time pending admission to a secure institution, it held that his immaterial damage increased with the passage of time. As to this aspect, it considered that a three-monthly increase of the basic amount by NLG 250 per month on each occasion was, in the present case, in accordance with the requirements of an equitable compensation and, consequently, determined the total amount in compensation to be awarded to the applicant at NLG 11, 250.

It rejected the applicant’s argument that the compensation should be calculated on a daily basis. The Court of Appeal agreed with the State that the use of a daily compensation in cases like the present one, where the unlawfulness does not arise from the deprivation of liberty as such, suggests a precision for which there is no basis in reality.

B.  Relevant domestic law and practice

The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows:

“Article 13

1.A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, can be placed in a judicial institution (justitiële inrichting) for treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e apply by analogy. ...

Article 37

1.The judge may order that a person who, due to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, shall be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or goods. ...

Article 37a

1.The judge may impose a TBS order (terbeschikkingstelling) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:

1°  the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more or if the offence is defined in Article 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 36 § 3 of the Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432 under 3° of the Criminal Code, and

2°  the said measure is necessary in the interests of the safety of others or the general safety of persons or goods.

2.In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect can be held criminally responsible for the offence.

3.In making an order as referred to in paragraph 1, the judge shall take account of the statements contained in the reports made concerning the suspect’s personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences.

4.Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence.

Article 37b

1.The judge may order that a person who is subject to a TBS order shall be confined to a secure institution (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...

Article 37c

1.Treatment shall be provided for in secure institutions for the treatment of persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur).

2.The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a secure institution receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the secure institution in the interests of the safety of others or the general safety of persons or goods.

3.The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence or their right to receive visitors.

 Article 37d

1.Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice:

a.  private institutions managed by legal persons established in the Netherlands;

b.  state institutions.

2.Treatment shall preferably take place in a private institution. ...

Article 37e

The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in state institutions.

Article 38c

1.The judge may, upon the application of the public prosecutions department, order that a person subject to a TBS order shall, contrary to the terms of the judgment, be confined to a secure institutiuon if facts or circumstances which have emerged since the examination in court show that this is necessary in the interests of the safety of others or the general safety of persons or goods.

2.He shall make such an order only after he has ordered and received a report from at least two behavioural experts from different disciplines - one of whom must be a psychiatrist and both of whom must have examined the person concerned not more than six months before the beginning of the hearing in chambers - which report shall be dated and signed and shall state reasons for the views expressed. The behavioural experts shall issue the report either jointly or separately. ...

 Article 38f

1.The period of validity of a TBS order shall be suspended:

a.  during any period during which the person subject to the order is lawfully deprived of his liberty on other grounds or during which he evades such deprivation of liberty;

b.  during any period of more than a week during which the person subject to the order absents himself without leave from the secure institution to which he was committed under an order as referred to in Article 37b or 38c.

2.Notwithstanding the provisions of paragraph 1, opening words and (a), the period of validity of a hospital order shall not be suspended:

a.  if the person subject to the order has been admitted to a secure institution or any other psychiatric hospital under an order as referred to in Article 13 or in accordance with the provisions laid down in or pursuant to the Prisons Act (Beginselenwet gevangeniswezen), unless he absents himself without leave from the said institution or hospital for more than a week;

b.  if, after the period of validity of the TBS order has begun, the person subject to the order has been committed to a psychiatric hospital under a judicial order, unless he absents himself without leave from the said hospital for more than a week.”

According to the TBS Execution Rules (Reglement tenuitvoerlegging terbeschikkingstelling; “RTTBS”) as in force at the relevant time, the prosecution department must inform the Minister of Justice as soon as possible of any judicial decision imposing a TBS order with confinement to a secure institution (Article 3 RTTBS). Under Article 4 RTTBS, the Minister must decide as soon as possible in which specific secure institution the person concerned is to be placed, taking into account the available information on the psychological examination and observation of the person concerned, advice on mental treatment, the case-file on the criminal proceedings, the available possibilities for treatment, security demands and the personal wishes of the person concerned.

The decision on the selection of the most appropriate secure institution – given the differences between the various institutions as to security levels, patient population (gender, psychiatric diagnostics of the patients and their ability to function in a group setting etc.), methods of treatment and average stay of patients – is in most cases preceded by a seven weeks’ psychiatric observation period in the Dr F.S. Meijers Institute; a forensic psychiatric observation institution specialised in this field. In general, a selection procedure takes a total period of three months. In the National Ombudsman’s report nr. 96/575 of 5 December 1996, a delay of three months between a date on which a sentenced person becomes eligible for early release and the date of admission to a secure institution was found acceptable.

On 1 October 1997, Articles 1–11 and 13–80 of the Act on confinement to a secure institution of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden) entered into force. Article 12 of this Act had already entered into force on 11 July 1997.

According to Article 12 of this Act, a person subject to a TBS order must be admitted within six months to a secure institution after the TBS order has taken effect. This period can be extended by the Minister of Justice by further periods of three months if placement proves impossible.

C.  Relevant international material

In the Report of 29 September 1998 of the European Committee for the Prevention of Torture and Inhuman Treatment (“CPT”) on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated that:

“111.  Since the beginning of the 1990’s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT’s second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340.

Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.”

In its response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a secure institution and of the steps taken to ensure that such prisoners receive at least minimally adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and the new statutory provision for a conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering secure institutions.

The Government further informed the CPT that lengthy waiting lists for places in secure institutions would continue to exist pending a resolution of the capacity problem, but experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a secure institution in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offer a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and to reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively and there was a growing demand among prisoners awaiting admission to a TBS institution for this kind of support (pp. 40 – 41).

COMPLAINTS

The applicant complains that the lengthy period of time during which he had been detained in a regular prison awaiting his admission to a secure institution without providing any form of treatment during this period amounts to inhuman or degrading treatment contrary to Article 3 of the Convention.

The applicant further complains that his rights under Article 5 have been violated as from the moment on which the TBS order took effect or, in the alternative, as from the moment on which three months had elapsed since the TBS order had taken effect.

THE LAW

1.  The applicant complains that his detention in a regular prison awaiting his admission to a secure institution without being provided with any form of treatment constitutes inhuman or degrading treatment contrary to Article 3 of the Convention.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case (cf. Ilhan v. Turkey [GC], no. 22277/93, 27.6.2000, § 84, to be reported in ECHR 2000–VII).

The Court notes that it has not been argued and that it has not appeared that the applicant’s mental health or possibilities for his treatment have deteriorated as a consequence of the period of time the applicant awaited – in a regular prison – admission to a secure institution. The Court observes on this point that, in the proceedings before the Amsterdam Court of Appeal, both the applicant and the Netherlands State agreed that it could not be determined what concrete effects the applicant’s stay in a regular prison pending his admission to a secure institution had had on his treatment and that the Court of Appeal did not find it established that the delay of admission had had a great and acute negative influence on the possibilities of the applicant’s treatment.

The Court is therefore of the opinion that there is no indication that the applicant, as regards the period he awaited admission to a secure institution, suffered treatment that could be classified as inhuman or degrading within the meaning of Article 3 of the Convention (cf. Aerts v. Belgium judgment of 30 July 1998, Reports of Judgments and Decisions 1998–V, p. 1966, § 66).

It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.  The applicant further complains that his rights under Article 5 of the Convention were violated as from 10 October 1994, when the TBS order took effect or, in the alternative, as from 10 January 1995, when three months had elapsed since this order had taken effect.

Article 5 of the Convention, insofar as relevant, reads:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)  the lawful detention of a person after conviction by a competent court;

...

(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

...”

The Court considers that this complaint must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 3(b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that his rights under Article 5 of the Convention were violated as from 10 October 1994, when the TBS order took effect or, in the alternative, as from 10 January 1995, when three months had elapsed since this order had taken effect; and

Declares inadmissible the remainder of the application.

Michael O’BoyleElisabeth Palm
RegistrarPresident

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