THIRD SECTION
DECISION
Applications nos. 62318/16 and 34414/17
Cosmin Florian CERNEA against the Netherlands
and Nicolae VOICU against the Netherlands
The European Court of Human Rights (Third Section), sitting on 25 September 2018 as a Committee composed of:
Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 25 October 2016 and 3 May 2017 respectively,
Having regard to the declaration submitted by the respondent Government on 7 May 2018 as adjusted on 9 July 2018 requesting the Court to strike the applications out of the list of cases and the applicants’ reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant in the first case, Mr Cosmin Florian Cernea, is a Romanian national, who was born in 1978 and, at the time of the introduction of the application, staying in the Netherlands.
2. The applicant in the second case, Mr Nicolae Voicu, is a Romanian national, who was born in 1970 and, at the time of the introduction of the application, staying in the Netherlands.
3. Both applicants were represented before the Court by Mr Th.O.M. Dieben, a lawyer practising in Amsterdam.
4. The Dutch Government (“the Government”) were represented by their Agent, Ms B. Koopman, and their Deputy Agent, Ms K. Adhin, both from the Ministry of Foreign Affairs.
5. The applicants complained that their detention in the Netherlands for the purpose of their surrender to Romania beyond 90 days was in breach of Article 5 § 1 of the Convention.
6. The applications had been communicated to the Government.
THE LAW
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
8. The applicants complained about their detention for the purpose of their surrender to Romania in excess of 90 days, i.e. 3 days in the case of Mr Cernea, and 119 days in the case of Mr Voicu. The applicants relied on Article 5 § 1 of the Convention.
9. After the failure of attempts to reach a friendly settlement, by a letter of 7 May 2018 the Government informed the Court in each of the two cases that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applications. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
10. The declaration submitted in respect of the applicant Mr Cernea, provided as follows:
“The Government’s attempts to reach a friendly settlement with the applicant have not been successful. In view hereof, the Government, by means of a unilateral declaration, acknowledges that the prolongation of the applicant’s detention for the purpose of his surrender to Romania beyond 90 days amounted to a violation of article 5, paragraph 1, of the Convention.
The Government regrets this course of events and is willing to offer the applicant just satisfaction to the amount of € 216,00 (based on the period beyond 90 days) and reimbursement of the costs for legal assistance made in relation to both the domestic proceedings and the proceedings before the Court provided they are specified, reasonable and necessarily incurred and in line with domestic tariffs as laid down in the Besluit Vergoedingen Rechtsbijstand [Legal Aid Payments Decree]. In case the applicant was provided with legal aid in the proceedings, the Government will reimburse the applicant’s contribution to the provided legal aid.”
11. The declaration submitted in respect of the applicant Mr Voicu was phrased in identical terms. In his case, the Government offered 8,570 euros (EUR) for the period of detention beyond 90 days, and in addition reimbursement of legal costs incurred.
12. By letter of 8 June 2018, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the amount offered by the Government was lower than the amount for compensation for unlawful detention under the applicable domestic guidelines, i.e. EUR 80 per day, and pointed out that this standard amount had been accepted by the Court as appropriate in, for instance, Geisterfer v. the Netherlands, (no. 15911/08, §§ 46-48, 9 December 2014). Furthermore, arguing that detention abroad is more difficult for a detainee in his or her home country, they considered that an appropriate amount for compensation for immaterial damages would be at least EUR 100 per day. For costs and expenses Mr Cernea claimed EUR 11.50 and Mr Voicu EUR 11.95.
13. On 9 July 2018 the Government informed the Court that they wished to adjust their unilateral declarations of 7 May 2018 in the sense that the just satisfaction amounts would be brought in compliance with the domestic guidelines. In the case of Mr Cernea, the Government increased the amount to EUR 255 plus EUR 11.50 for costs and expenses and, in the case of Mr Voicu, to EUR 10,115 plus EUR 11.95 for costs and expenses.
14. On 30 July 2018 the applicants informed the Court that they had noted that the Government were now offering compensation based on a daily amount of EUR 85. Referring to the reasons given in their letter of 8 June 2018, they maintained that in their circumstances an amount of EUR 100 per day would appropriate. They left it to the Court’s discretion whether this difference justified a continuation of the Court’s examination of their cases.
15. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the applications”.
16. It also reiterates that in certain circumstances, it may strike out an applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued.
17. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
18. The Court has established in a number of cases, including those brought against the Netherlands, its practice concerning complaints about the violation of Article 5§ 1 (see, for example, Brand v. the Netherlands, no. 49902/99, 11 May 2004; Morsink v. the Netherlands, no. 48865/99, 11 May 2004; Nelissen v. the Netherlands, no. 6051/07, 5 April 2011; and Geisterfer, cited above, §§ 46-48.
19. Having regard to the nature of the admissions contained in the Government’s respective declarations, as well as the amounts of compensation proposed – which are consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).
20. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine).
21. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
22. In view of the above, it is appropriate to strike the cases out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declarations under Article 5 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to join the applications;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 18 October 2018.
Fatoş AracıDmitry Dedov
Deputy RegistrarPresident
Full & Egal Universal Law Academy