Resolution CM/ResDH(2012)131[1]
S.T.S. against Netherlands
Execution of the judgment of the European Court of Human Rights:
(Application No. 277/05, judgment of 07/06/2011, final on 07/09/2011)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established (see document DH-DD(2012)748E);
Recalling that the respondent State’s obligation under Article 46, paragraph 1, of the Convention to abide to by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above mentioned obligation;
Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)748E);
Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted;
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Action Report of the Government of the Netherlands
on the implementation of the judgment of the Court
concerning Application no. 277/05, S.T.S. v. the Netherlands
Judgment of 7 June 2011, Final on 7 September 2011
Introduction
1. On 21 December 2004, Mr S.T.S. (‘the applicant’) submitted an application to the European Court of Human Rights (‘the Court’) under article 34 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).
2. On 7 June 2011, the Court found a violation of article 5, paragraph 4 of the Convention. Under article 41 of the Convention, the Court ordered the Government of the Netherlands (‘the Government’) to pay the applicant €2,000 plus any tax that might be applicable within three months of the date on which the judgment became final in accordance with article 44, paragraph 2 of the Convention. The judgment became final on 7 September 2011.
3. With reference to the standard classification procedure,[2] the Government of the Netherlands wishes to present its report, with a view to informing the Secretariat about the measures taken.
Case description
4. Excessive length of the proceedings on the lawfulness of the minor applicant’s custodial placement in a confined institution (Article 5 § 4). Lack of effective proceedings on the lawfulness of the detention due to the Supreme Court’s failure to decide the case before the expiry of the validity of the placement order and due to the subsequent dismissal of the case for having become devoid of interest (Article 5 § 4).
Publication and dissemination of the judgment
5. The Dutch authorities consider that, given the direct effect of the Court’s judgments in the Netherlands, all the authorities concerned are expected to align their practice with the present judgment. To this end, the judgment and commentary on the judgment have been published in several Dutch legal journals, including European Human Rights Cases[3], Nederlands Juristenblad[4] and Rechtspraak Familierecht.[5]
6. Furthermore, the Ministry of Security and Justice informed the Supreme Court of the Netherlands (Hoge Raad) about the judgment on the day it was delivered and also brought it to the attention of the Council for the Judiciary (Raad voor de Rechtspraak).
Individual measures
7. The Government will not take any individual measures following the Court’s judgment, other than the payment of just satisfaction (see below), since no consequences of the violation for the applicant persist.
8. The applicant was released from the secure institution in mid-2006, when he came of age.
General measures
9. Very shortly after the Court’s judgment, the Supreme Court of the Netherlands reversed its settled case law concerning ‘no interest’. Referring to the Court’s judgment in this case, the Supreme Court held:
10.‘It must be assumed that anyone who seeks a remedy against a temporary order that has deprived him of his liberty should not have his interest in bringing an action denied solely because the period for which that order applied has already elapsed. Nor may his interest be denied on the ground that he did not put forward the argument that he had requested a review of the order in order to assert a claim to compensation, or on the ground that he did not adduce any facts or circumstances that demonstrate that he has suffered any damage qualifying for compensation.’[6]
11.The Supreme Court has also attached consequences to the judgment in respect of the related issue regarding care orders (machtigingen tot uithuisplaatsing) whose period of validity has expired in respect of which no interest in bringing an action was formerly accepted. By judgment of 14 October 2011, the Supreme Court ruled that, in the light of the above-mentioned judgment, ‘in cases such as the present one, too, in which a parent opposes a care order for a minor child, it is to be assumed that this parent, having regard to the right to respect for his or her family life guaranteed by article 8 of the Convention, has a legally relevant interest in having the lawfulness of the care order reviewed, and this parent should therefore not have his or her legal interest denied solely because the period for which the order applied has already elapsed’.[7]
12.The Supreme Court has also adjusted its internal work processes in order to reduce the average throughput time for cases of this type so as to prevent similar violations in the future. The Supreme Court has introduced a screening system in order to filter out those civil cases in which an appeal in cassation has been lodged against an order for deprivation of liberty. Incoming cases of this type will immediately be sent to the responsible Advocate General to avoid delays. It was recently checked whether registry staff also in practice screen incoming cases for the presence of appeals against deprivations of liberty. That proved to be the case.
Just satisfaction
13.In its judgment the Court held that the Government has to pay the applicant, within three months of the date on which the judgment becomes final in accordance with article 44, paragraph 2 of the Convention, €2,000 in non-pecuniary damages plus any tax that may be chargeable. The Government has paid this amount and notified the Execution Department by emailing it the payment registration form on 1 February 2012.
Conclusion
14.The Government believes that the measures taken fulfil the requirements arising from the Court’s judgment and will prevent similar violations in the future.
The Hague, 7 March 2012
Roeland Böcker
Agent of the Government of the Netherlands
[1] Adopted by the Committee of Ministers on 26 September 2012 at the 1150th Meeting of the Ministers’ Deputies.
[2] As set out in CM/Inf/DH(2010)45 and CM/Inf/DH(2010)37E.
[3] EHRC2011, 130, with commentary from J.H. Crijns.
[4] NJB 2011, 1591.
[5] RFR 2011, 92.
[6] LJN: BQ2292, Supreme Court, 24 June 2011.
[7] LJN: BR5151, Supreme Court, 14 October 2011.
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