THIRD SECTION
DECISION
Application no. 8715/24
Seref ÇELEM
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 24 September 2024 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. 8715/24) 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 20 March 2024 by a Turkish national, Mr Seref Çelem, who was born in 1966 and is detained in Heerhugowaard (“the applicant”) and was represented by Mr Jebbink, a lawyer practising in Amsterdam;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The issue in the present case is whether the prison sentence that was imposed on the applicant after a new law on conditional release had come into force is in violation of Article 7 of the Convention.
2. On 6 November 2013 the applicant committed two offences of manslaughter. The maximum sentence for two counts of manslaughter at that time was twenty years’ imprisonment. This maximum term of imprisonment remained the same during the criminal proceedings against the applicant at the first instance and the appeal level courts. What changed during these proceedings, were the provisions on conditional release (voorwaardelijke invrijheidsstelling).
3. At the time when the applicant committed the criminal offences, the Criminal Code contained a provision under which - as far as relevant for the present case - conditional release was in principle granted after two thirds of a prison sentence had been served. The Criminal Code (“the old law”) entailed that conditional release could be postponed or excluded in certain cases. If the prosecution considered that there was reason to postpone or exclude conditional release, it had to address a written request to that effect to the court that had imposed the sentence.
4. On 2 November 2017 the Amsterdam Regional Court convicted the applicant on two counts of manslaughter and sentenced him to fourteen years and six months’ imprisonment. It considered that a combined sentence of fifteen years’ imprisonment would be appropriate for these offences, but it mitigated the sentence to fourteen years and six months because of a violation of the reasonable time requirement.
5. The Punishment and Protection Act (Wet Straffen en Beschermen) changed the conditional release system after that judgment had been issued. As from 1 July 2021, the period of conditional release was set at a maximum of two years. The prosecutor would decide whether conditional release would be granted. The convicted person could file an objection with a court against such a decision. One of the transitional provisions provided that the new regime would apply to all custodial sentences handed down after the date of entry into force of the Punishment and Protection Act. The explanatory memorandum to the bill introducing the new regime stated that the aim of that transitional provision was to draw a clear distinction between the old and new conditional release regimes, so that when imposing a sentence, it was also clear to the judge under which regime the imposed sentence would be executed. The legal provisions concerning the conditional release were no longer included in the Criminal Code, but in the Code of Criminal Procedure (“the new law”).
6. The applicant appealed against the judgment of the Regional Court because he neither agreed with the conviction nor with the penalty. He asked the Amsterdam Court of Appeal, in case it deemed him guilty, to take into account the negative effects of the new law and to reduce his sentence.
7. On 3 August 2022 the Court of Appeal convicted the applicant on two counts of manslaughter and sentenced him to fifteen years and three months’ imprisonment. It considered that, in principle, the maximum of twenty years’ imprisonment would be an appropriate sentence in the applicant’s case. It took into consideration that the law on concurrence of criminal offences applied because of other offences the applicant had been convicted of after 2013 and it reduced the sentence by a year because of a violation of the reasonable time requirement. As regards the new law, the Court of Appeal held that it concerned the execution of the penalty. It further noted that when determining the sentence, it was not precluded from taking into consideration that the new law contained changes regarding the possibility of conditional release, but that there were no circumstances in the present case that gave rise to do so.
8. On 30 January 2024 the Supreme Court dismissed the applicant’s appeal on points of law concerning an alleged violation of Article 7 of the Convention. It considered that both under the old law and under the new law it was possible that the convict had to serve his full prison sentence without being granted conditional release. It also noted that in line with the transitional provisions, the court that imposed a prison sentence knew which conditional release regime would apply to that sentence.
THE COURT’S ASSESSMENT
9. The applicant complained under Article 7 of the Convention that his position had worsened because of the change of law. He pointed out that he would have to spend more time in prison than would have been possible under the old law and that his chances of being conditionally released had diminished because of the stricter rules that applied under the new law. In his view, the Court of Appeal had imposed a heavier penalty than the one that had been applicable when he had committed the criminal offences.
10. In its established case law, the Court has drawn a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the penalty. Where the nature and purpose of a measure relate to the remission of a sentence or a change in a regime for early release, this does not form part of the “penalty” within the meaning of Article 7 (see Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, and Kafkaris v. Cyprus [GC], no. 21906/04, § 142, ECHR 2008). However, it acknowledged that in practice this distinction may not always be clear-cut (see Del Río Prada v. Spain [GC], no. 42750/09, § 85, ECHR 2013). In order to determine whether a measure concerns only the manner of execution of the sentence, or affects its scope, the Court examines what the “penalty” actually entails (see Del Rio Prada, cited above, § 90).
11. Turning to the present case, the Court notes that the fifteen years and three months’ imprisonment which was imposed on the applicant by the Court of Appeal did not exceed the maximum penalty that was applicable at the time when he had committed the offences. Neither under the old law nor under the new law was it certain that the applicant would be granted conditional release. The fact that under the new law the applicant will have to undergo a longer part of his prison sentence before conditional release can be granted, and that the procedure for conditional release has become stricter, does not alter the fact that this concerns the execution of the penalty. Therefore Article 7 of the Convention does not apply to the applicant’s situation. The application is incompatible ratione materiae.
12. It follows that this complaint must be declared inadmissible in accordance with Article 35 §3 under a of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 October 2024.
Olga Chernishova Peeter Roosma
Deputy Registrar President