CASE OF HESSELINK v. THE NETHERLANDS

THIRD SECTION

CASE OF HESSELINK v. THE NETHERLANDS

(Application no. 24008/20)

JUDGMENT
 

STRASBOURG

22 October 2024

This judgment is final but it may be subject to editorial revision.

In the case of Hesselink v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Peeter Roosma, President,
 Jolien Schukking,
 Diana Kovatcheva, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 24008/20) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 June 2020 by a Dutch national, Mr Henk Jan Hesselink (“the applicant”), who was born in 1964, lives in Haaksbergen and was represented by Mr J.T.E. Vis, a lawyer practising in Amsterdam;

the decision to give notice of the application to the Government of the Kingdom of the Netherlands (“the Government”), represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated in private on 1 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged disproportionate use of violence against the applicant by two civil servants with investigative powers (buitengewone opsporingsambtenaren. hereafter “the civil servants”) who applied a neck hold (nekklem) when arresting him.

2.  On 8 October 2015 two civil servants entered the applicant’s farmyard to speak to a third person whose agricultural vehicle had been leaking oil on a public road on its way to the applicant’s farm. The applicant informed the civil servants that they were not welcome on his farmyard and had to leave. The civil servants told the applicant that they needed to establish the identity of the third person. When the civil servants left, they drove their car a short distance over part of the applicant’s newly‑sown lawn. The applicant ran to the car and slammed his hands on the window and bonnet and shouted that the grass had just been sowed. The applicant proceeded to stand in front of the car, which led the civil servants to arrest him for resisting an official engaged in his lawful duties and for attempted criminal damage to their car. During the arrest, one of the civil servants applied a neck hold. The applicant was brought to the ground and kept under control as the two civil servants held both of his arms behind his back and knelt on his back. Shortly after, the police arrived on the scene and took the applicant to the police station, where he was questioned and released the same evening.

3.  On 11 October 2015 the public prosecutor informed the applicant that he had been unjustly designated as a suspect and that the case against him would not be pursued.

4.  The applicant filed a complaint with the municipality of Enschede regarding the actions of the civil servants during his arrest. The municipality forwarded a copy to the direct supervisory authority of the civil servants, the East-Netherlands Unit of the National Police. This unit issued an advisory opinion concerning the applicant’s complaint to the chief public prosecutor, stating that the force used by the civil servants had been proportionate in that situation. The chief public prosecutor requested, nevertheless, that the police launch an investigation into the factual circumstances of the arrest and asked to be informed of the outcome. The requested investigation was never carried out.

5.  On 30 May 2016 the applicant filed a complaint with the Public Prosecution Service about his assault by the two civil servants. On 9 September 2016 the Central Twente team of the East-Netherlands Unit of the National Police closed the criminal complaint because, according to the police, both civil servants had acted lawfully, and the applicant had failed to respond to the requests for providing additional information. The criminal complaint was therefore not sent to the Public Prosecution Service.

6.  The applicant filed a complaint under Section 12 of the Code of Criminal Procedure, challenging the decision not to prosecute. On 8 June 2018 the Arnhem-Leeuwarden Court of Appeal stayed the proceedings, after hearing the applicant’s complaint in chambers, in order to initiate a mediation process between the applicant (who was open to such proceedings) and the Municipality of Enschede. On 2 October 2019 the mediation office informed the Court of Appeal that the Municipality of Enschede was not in favour of mediation.

7.  On 2 January 2020 the Court of Appeal dismissed the applicant’s complaint. It held that on the basis of the case file it could not be established that the force used by the civil servants had been disproportionate. In that connection the court noted that one witness had not observed the incident from the beginning and that based on the other witness’s statement, it could not be sufficiently established that the civil servants had acted disproportionately. It further noted that the civil servants in their official report had stated that the applicant had acted very aggressively towards them, which had led to the applicant’s arrest, that the applicant had resisted arrest, and that this had resulted in the application of a neck hold. The Court of Appeal found no reason to doubt those statements and found that the applicant’s version of events was insufficiently supported by the witness statements in the case file. The Court of Appeal considered that a criminal court would not be able to reach a conviction for assault on the basis of the case file. No appeal lay against this decision.

8.  Relying on Article 3 of the Convention, the applicant complained that the civil servants had used disproportionate force in restraining him by the neck and applying an armlock and that there had been no effective investigation by the national authorities into the use of force by the civil servants.

THE COURT’S ASSESSMENT

9.  On 17 April 2023 the Government submitted a unilateral declaration in which they acknowledged that there had been a violation of the procedural limb of Article 3 because the domestic authorities had not effectively investigated the force used by the civil servants against the applicant during his arrest and proposed an amount that they were prepared to pay for non‑pecuniary damage sustained by the applicant. The Government submitted that due to the lack of an effective investigation, they were not in a position to say whether there had been a violation of the substantive limb of Article 3 as well. The Government invited the Court to strike out the application in accordance with Article 37 of the Convention.

10.  The applicant invited the Court not to accept the terms of the declaration because he believed the facts clearly showed that there had been a violation of the substantive limb of Article 3 as well.

11.  The Court notes that the relevant principles concerning unilateral declarations are set out in Tahsin Acar v. Turkey ((preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI). In particular, the Court considered that, under certain circumstances, it might be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wishes the examination of the case to be continued. Having examined the terms of the Government’s unilateral declaration, the Court finds that the Government failed to submit in the present case a statement offering a sufficient basis for finding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (Article 37 § 1 in fine).

12.  This being so, the Court rejects the Government’s request for the application to be struck out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

13.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  Reviewing the facts of the present case in the light of the general principles established in its case-law (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81-90 and 114-123, ECHR 2015), the Court considers that the applicant raised an arguable claim of ill-treatment at the domestic level. That claim triggered an obligation on the part of the national authorities to carry out an effective official investigation. From the documents before the Court, it appears that the domestic investigations did not reflect a serious effort to determine the relevant facts. This has been acknowledged by the Government.

15.  The Court further notes that the applicant’s claim that force was used against him, including a neck hold, has been corroborated by evidence given by witnesses and that the Government did not contest that claim. The burden of proof is thus on the Government to show that the use of force against the applicant was not in breach of Article 3 of the Convention. More precisely, the Government have to show that resorting to physical force was made strictly necessary by the victim’s own conduct (see Bouyid, cited above, § 83).

16.  Given the failure of the domestic investigation to establish in detail the exact circumstances of the applicant’s arrest and his subsequent treatment by the civil servants, and in particular whether the extent and nature of the use of force by the civil servants was strictly necessary to effect the applicant’s arrest, the Government failed to discharge the burden satisfactorily to disprove the applicant’s allegation of ill-treatment (see Mafalani v. Croatia, no. 32325/13, § 126, 9 July 2015).

17.  There has, accordingly, been a violation of Article 3 of the Convention under both its substantive and procedural limbs.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicant claimed 3,925.10 euros (EUR) in respect of pecuniary damages and EUR 3,500 in respect of non-pecuniary damages.

19.  The Government contested partly the claim for pecuniary damage, noting that the applicant had failed to substantiate that the costs for hiring of external workers (EUR 3,400.10) were reasonable and necessarily incurred as a result of the applicant’s inability to work after the incident because the invoice showed that those external workers had been hired for the day that the incident took place.

20.  Having regard to the parties’ submissions, the Court awards the applicant EUR 525 for pecuniary damage and EUR 3,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

21.  The applicant claimed EUR 3,515.43 in respect of costs and expenses incurred before the domestic courts and EUR 2,783.60 for those incurred before the Court.

22.  The Government contested partly the claim concerning costs and expenses incurred during the domestic proceedings (EUR 1,700.43), as the applicant had been granted legal aid for the complaint procedure under Section 12 of the Code of Criminal Procedure.

23.  Having regard to the documents in its possession, the Court considers it reasonable to award EUR 4,598.60 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 525 (five hundred and twenty-five euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 4,598.60 (four thousand five hundred and ninety-eight euros and seventy-three cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 22 October 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Olga Chernishova Peeter Roosma
 Deputy Registrar President