THIRD SECTION
DECISION
Application no. 73560/12
Julien Hira Bisnudew CONSTANCIA
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 3 March 2015 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Dragoljub Popović,
Kristina Pardalos,
Valeriu Griţco,
Iulia Antoanella Motoc, judges,
Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 13 November 2012,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Julien Hira Bisnudew Constancia, is a Netherlands national born in 1984. He is currently detained in Vught. He was represented before the Court by Ms D. de Jonge, a lawyer practising in Amsterdam.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
3. On 1 December 2006 the applicant entered a primary school in Hoogerheide carrying a kitchen knife. In one of the classrooms he found an eight-year-old boy, J.D., alone. He cut the boy’s neck and throat several times and left him dead.
4. Following his arrest, the applicant was sent to the Pieter Baan Centrum in Utrecht, an observation clinic belonging to the Netherlands Institute for Forensic Psychiatry and Psychology (Nederlands Instituut voor Forensische Psychiatrie en Psychologie), to be examined. It would appear that the applicant refused to cooperate in any examination, thus making it impossible for the clinic’s experts to draw up a report on his mental state.
2. Proceedings in the Regional Court
5. The applicant was tried at first instance by the Breda Regional Court (rechtbank).
6. On 6 September 2007 the Regional Court gave judgment. It found the applicant guilty of manslaughter. It sentenced the applicant to twelve years’ imprisonment and in addition ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). Its reasoning included the following:
“The suspect has been admitted to the Pieter Baan Centrum [PBC]. The PBC’s experts have established that the suspect has refused to cooperate in any examination, and that they are therefore professionally unable to conclude whether the suspect was suffering from a mental disturbance. It is therefore up to the Regional Court to decide, based on all the information available, whether the existence of such a disturbance can be established.
In this connection, the Regional Court considers it noteworthy that in an earlier criminal case in 2004 a report was submitted by the psychologist L. The suspect did cooperate in that examination. This expert reached the diagnosis that the suspect presented antisocial and narcissistic personality traits, but that in view of his age (at the time), and his personality as yet not having fully matured, he considered it premature to use the expression ‘inadequate development of his mental faculties’. Since his personality development was under threat, there was a chance of further distortion of his personality. The suspect required treatment for that.
The Regional Court finds it established that the propensity for a mental disturbance accordingly existed in 2004.
In that earlier criminal case, the suspect was required to submit to the specific condition of obligatory supervision by the probation and social rehabilitation service (reclassering) and within that framework he underwent treatment by the W. institution in The Hague. However, he never finished that course of treatment. The suspect disregarded the advice to seek professional help for his inflated ego, impulsive nature and learning objectives in the emotional field. He did not accept further treatment and, as now appears, he proved unable after breaking off his course of treatment to build a stable life or develop harmoniously.
In addition, the PBC experts indicate that there are many indications that the suspect is suffering from a mental disturbance or inadequate development of his mental faculties.
This leads the Regional Court to the last, but not necessarily the least important, argument, namely the act itself: the bestial slaughter, without any (apparent) motive, of a defenceless eight-year-old child. Such an act is not compatible with a human being with a healthy mental development.
The Regional Court takes the view that all these arguments provide so many indications that it cannot conclude otherwise than that the suspect was suffering from a mental disturbance or inadequate development of his mental faculties at the time of the commission of the act. This disturbance is such that the Regional Court considers that it would be irresponsible to allow the suspect to be released back into society untreated in due course.”
3. Proceedings in the ‘s-Hertogenbosch Court of Appeal
7. Both the applicant and the prosecution appealed against the judgment of the Regional Court.
8. The appeal was heard by the ‘s‑Hertogenbosch Court of Appeal (gerechtshof), which gave judgment on 26 February 2008. It convicted the applicant of murder. Finding itself unable to draw any conclusions regarding the applicant’s mental faculties from the expert reports from the Pieter Baan Centrum, it sentenced the applicant to life imprisonment.
4. First round of proceedings in the Supreme Court
9. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad).
10. On 17 November 2009 the Supreme Court quashed the judgment of the ‘s-Hertogenbosch Court of Appeal on grounds not relevant to the case before the Court and remitted the case to the Arnhem Court of Appeal.
5. Proceedings in the Arnhem Court of Appeal
11. Following remittal the appeal was heard afresh by the Arnhem Court of Appeal.
12. On 26 August 2010 this court gave an interlocutory judgment ordering the Advocate General (advocaat-generaal) to find out what documents from the investigation file had been available to the Pieter Baan Centrum experts when they reported on the applicant; to forward to the Pieter Baan Centrum certain information from the file of the criminal proceedings, including audio and audio-visual recordings of the interrogations of the applicant; and to add the recordings to the file. The Pieter Baan Centrum experts were to supplement their report and appear at a future hearing as expert witnesses.
13. The Court of Appeal resumed its hearing on 3 February 2011. The experts, the psychiatrist R. and the psychologist O., who had taken part in the examination of the applicant in the Pieter Baan Centrum, were heard. Both repeated that they could not rule out that the applicant was suffering from a mental disturbance or inadequate development of his mental faculties but, lacking definite information because of the applicant’s refusal to cooperate with them, felt unable to state any definite conclusion. The Court of Appeal ordered the applicant’s penitentiary file to be sent to the experts in order that they complete their report with the information therein contained, but declined to order the applicant returned to the Pieter Baan Centrum for a second round of observation, the applicant having announced his intention to continue to withhold his cooperation.
14. The hearing was again resumed on 20 April 2011. The experts R. and O. again refused under questioning to take any definite position as to whether the applicant should be found to have been suffering from a mental disturbance or inadequate development of his mental faculties. In its closing statement, the prosecution asked the Court of Appeal so to find nonetheless, on the information available, and to impose a sentence of twenty years’ imprisonment and a TBS order; should the Court of Appeal feel unable to give a decision in such terms, the only alternative was imprisonment for life.
15. The defence argued, as relevant to the case before the Court, that the premeditation needed for a murder conviction could not be found proven and that the expert reports available failed to establish the mental deficiency required for a TBS order.
16. The Arnhem Court of Appeal gave judgment on 18 May 2011. Finding that premeditation was not proven, it convicted the applicant of manslaughter not murder. It imposed a prison sentence of twelve years and a TBS order. In considering the applicant’s mental state, it had regard to the following:A report by a psychologist drawn up on 21 March 2004, in connection with a prosecution for armed robbery. It was noted that the applicant’s personality had not yet matured, so that it was not yet possible to find that the applicant was afflicted with an inadequate development of his mental faculties in the sense of a personality disorder. The applicant’s personality was characterised by an inadequate sense of values, a lack of fear as an inhibiting factor, impulsiveness and a tendency to overestimate himself and overlook his limitations. The danger of reoffending was considered real. The applicant’s personality development was under threat and there was a danger of further personality distortion.A report by a forensic psychiatrist drawn up on 4 December 2006. This reflected that the applicant behaved as if nothing could affect him and pictured himself above the situation in which he found himself as a homicide suspect; it also related some “bizarre statements” reflecting disturbed reality testing.A report drawn up on 21 June 2007 by a psychologist and a psychiatrist (the latter being the above-mentioned expert R.). It is noted that the applicant was diagnosed with a “borderline syndrome” at the age of 15 and with an “as yet immature personality with narcissistic and antisocial traits” at the age of 19. The report posited narcissistic and antisocial personality disorders, identity problems and psychotic episodes such as would indicate a so-called borderline personality, but a schizophrenic development was not excluded. The applicant’s refusal to cooperate had made it impossible however to draw any definite conclusions.A supplementary report drawn up on 27 January 2011 by the above-mentioned psychologist O. and psychiatrist R. Based on all the information available, including the criminal file and the audio and audio-visual recordings of interrogations, this reflected the “worrying development” of a young man who had led a detached and antisocial existence, had abused cannabis and lived in a world of his own. As the report itself mentions, this was, in effect, the same finding as that made in 2007. The experts O. and R. were unable to supplement it with findings resulting from their own observation.
In addition, the Court of Appeal made use of statements of witnesses, some of them close relatives of the applicant, and of reports by police and prison staff made after the applicant’s arrest. All described the applicant as manifesting unusual behaviour.
The judgment quotes extensively and in detail from police reports of statements made by the applicant in December 2006, after his arrest following the killing of J.D. The applicant is quoted as saying inter alia that he wishes to help children stuck behind a mirror, that he has paid Osiris to obtain knowledge from the dead with which to gain material advantage in the present life, that he has tricked the Devil by signing a contract with him in wine rather than blood, and that the death of the child J.D. (which he does not admit having caused) will clarify for him the meaning of our earthly existence.
The Court of Appeal’s reasoning included the following:
“If, as in the present case, the suspect has withheld his (complete) cooperation in an examination by behavioural experts, then the requirement of a (full (volwaardig)) multidisciplinary examination within the meaning of Article 37 § 2 of the Criminal Code (Wetboek van Strafrecht) disappears.
But the need remains for the establishment of a mental disturbance or inadequate development of the suspect’s mental faculties at the time when he committed the act. Without it, a TBS order cannot be imposed.
It is up to the trial court (de rechter die over de feiten oordeelt) to make that establishment. The trial court will have to let itself be guided to a very considerable extent by the findings and conclusions of behavioural experts, when the behavioural experts reach the limits of what they can take responsibility for within their scientific knowledge, the trial court will have to take its own responsibility in so far as the law gives it the necessary room.
Neither statute nor case-law requires the disturbance to be classified according to the DSM-IV manual and determined by a behavioural expert. This means that, contrary to what the defence has argued, it is ultimately for the trial court, obviously with great caution, to establish the existence of a mental disturbance, even though the behavioural experts cannot reach that conclusion based on the scientific criteria and deontological standards applicable to them. The trial court will however have to find sufficient support for its decision in what the behavioural experts may have been able to establish and whatever other facts and circumstances may have become apparent to the trial court regarding the person of the suspect.”
6. Second round of proceedings in the Supreme Court
17. The applicant appealed on points of law against the judgment of the Arnhem Court of Appeal.
18. As relevant to the case before the Court, the applicant complained under Article 5 § 1 (e) of the Convention that in the absence of any definite finding by a medical expert and in the light of the doubts expressed by the experts O. and R. he had not reliably been shown to be of unsound mind, so that the TBS order was unlawful.
19. The Advocate General to the Supreme Court submitted an advisory opinion recommending that the appeal be dismissed. He expressed the view that the applicable Convention provision was not only Article 5 § 1 (e) of the Convention but also Article 5 § 1 (a), which meant that the applicant’s detention under the TBS order was covered in any event by his conviction.
20. On 22 May 2012 the Supreme Court gave judgment. It dismissed on summary reasoning the applicant’s complaint that he had not reliably been shown to be of unsound mind but, finding that the proceedings had not been brought to a close within a “reasonable time”, reduced the prison sentence to eleven years and seven months.
B. Relevant domestic law
21. As relevant to the case, the Criminal Code provides as follows:
Article 37
“1. The court can order that the person who cannot be held responsible for a criminal act because of the inadequate development or pathological disturbance of his mental faculties shall be placed in a psychiatric hospital for the time of one year, but only if he poses a danger to himself, to others, or to the general safety of persons or goods.
2. The court shall give an order as referred to in the first paragraph only after it has ordered the submission of a reasoned, dated and signed advisory opinion of at least two behavioural experts of different disciplines – one of whom shall be a psychiatrist – who have examined the person concerned. Such an advisory opinion shall be submitted by the behavioural experts together or by each of them separately. If this advisory opinion is signed more than one year before the trial opens, the court shall only make use of it with the assent of the prosecution and the suspect.
3. The second paragraph shall not apply if the person concerned refuses to cooperate in the examination that needs to be undertaken for the purpose of preparing the advisory opinion. As far as possible, the behavioural experts shall, together or separately, prepare a report about the reason for the refusal. The court shall, as far as possible, order the submission of another advisory opinion or report that can enlighten it about the desirability or need for an order as referred to in the first paragraph and in the preparation of which the person concerned is willing to offer his cooperation.”
Article 37a
“1. The court may impose a TBS order on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if:
1º 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, ... and
2º the said measure is necessary in the interests of the safety of others or the general safety of persons or goods.
...
3. The second and third paragraphs of Article 37 shall apply by analogy.
4. In giving an order under paragraph 1, the court shall take account of the statements contained in the other opinions and 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.”
Article 37b
“1. The court may order that a person who is subject to a TBS order shall be confined in a custodial clinic if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...”
Article 38d
“1. A TBS order shall remain in force for a period of two years, counting from the day on which the judgment imposing it has become final.
2. Except as provided in Article 38e ..., the duration of the TBS order can be extended, on the application of the public prosecution service (openbaar ministerie), for either one year or two years at a time, if the safety of others or the general safety of persons or goods requires such extension. A second extension is possible only when an order as mentioned in Article 37b ... has been given.”
Article 38e
“1. The total duration of the TBS order shall not exceed a four-year period, unless the TBS order is imposed in connection with an indictable offence that is directed against, or endangers, the physical integrity of one or more persons.
2. If the total duration of the TBS order is not limited in time, the duration of the TBS order can be extended periodically, if the safety of others or the general safety of persons requires such extension.”
22. The crime of manslaughter carries a maximum sentence of fifteen years’ imprisonment (Article 287 of the Criminal Code).
COMPLAINT
23. The applicant complained under Article 5 § 1 (e) of the Convention that he had been ordered detained as a person of unsound mind even though he had not been diagnosed as mentally unfit.
THE LAW
Complaint under Article 5 § 1 (e) of the Convention
24. The applicant alleged that the TBS order imposed by the Arnhem Court of Appeal had been imposed without objective medical expertise to support it, thus violating Article 5 § 1 (e) of the Convention, which reads as follows:
“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:
...
(e) the lawful detention ... of persons of unsound mind ...”
25. The Court reiterates its established case-law according to which an individual cannot be considered to be of “unsound mind” and deprived of his or her liberty unless the following three minimum conditions are satisfied: firstly, he or she must reliably be shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see, among many other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; X v. the United Kingdom, 5 November 1981, § 40, Series A no. 46; Ashingdane v. the United Kingdom, 28 May 1985, § 37, Series A no. 93; Johnson v. the United Kingdom, 24 October 1997, § 60, Reports of Judgments and Decisions 1997‑VII; Varbanov v. Bulgaria, no. 31365/96, § 45, ECHR 2000‑X; Hutchison Reid v. the United Kingdom, no. 50272/99, § 48, ECHR 2003‑IV; H.L. v. the United Kingdom, no. 45508/99, § 98, ECHR 2004‑IX; Shtukaturov v. Russia, no. 44009/05, § 114, ECHR 2008; Stanev v. Bulgaria [GC], no. 36760/06, § 145, ECHR 2012; and X v. Finland, no. 34806/04, § 149, ECHR 2012 (extracts)).
26. Where no other possibility exists, for instance because of a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be sought, failing which it cannot be maintained that the person has reliably been shown to be of unsound mind (see X v. the United Kingdom, cited above, passim, and Varbanov, cited above, § 47). Furthermore, the medical assessment must be based on the actual state of mental health of the person concerned and not solely on past events (see Varbanov, ibid.).
27. In deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see, in particular, Winterwerp, cited above, § 40; X v. the United Kingdom, cited above, § 43; Luberti v. Italy, 23 February 1984, § 27, Series A no. 75; Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244; Stanev, cited above, § 155; and X v. Finland, cited above, § 150).
28. A necessary element of the “lawfulness” of the detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances (see generally Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III, and Enhorn v. Sweden, no. 56529/00, § 36, ECHR 2005‑I; with particular reference to the detention of persons of unsound mind, see Varbanov, cited above, § 46; Stanev, cited above, § 143; and X v. Finland, cited above, § 151).
29. However, while Article 5 § 1 of the Convention contains a list of permissible grounds of deprivation of liberty which is exhaustive, the applicability of one ground does not necessarily preclude that of another. A detention may, depending on the circumstances, be justified under more than one sub-paragraph. In particular, the Court has accepted many times that detention may be covered by sub-paragraphs (a) and (e) of Article 5 § 1 concurrently (see, among other authorities, X v. the United Kingdom, cited above, § 39, and Eriksen v. Norway, 27 May 1997, § 76, Reports 1997‑III; with particular reference to TBS orders with confinement in a custodial clinic in the Netherlands, see Erkalo v. the Netherlands, 2 September 1998, §§ 50-51, Reports 1998‑VI; Morsink v. the Netherlands, no. 48865/99, §§ 61-62, 11 May 2004; Brand v. the Netherlands, no. 49902/99, §§ 58-59, 11 May 2004; Nelissen v. the Netherlands, no. 6051/07, § 59, 5 April 2011; and D.B. v. the Netherlands (dec.), no. 53764/07, § 53, 5 March 2013). Moreover, the Court has accepted, in another case where a punitive prison sentence was followed by further detention in the interests of public safety and rehabilitation, that the Convention allows a measure of indeterminacy in sentencing (see Van Droogenbroeck v. Belgium, 24 June 1982, § 40, Series A no. 50).
30. Turning to the facts of the case, the Court notes that the Arnhem Court of Appeal had recourse to a plurality of reports of earlier examinations of the applicant by psychiatrists and psychologists as well as a report by a psychologist and a psychiatrist commissioned while the proceedings were pending before it based on the criminal file and the audio and audio-visual recordings of interrogations. Although the various psychiatrists and psychologists were unable to establish a precise diagnosis, they did express the view that the applicant was severely disturbed, which view the Court of Appeal found reinforced by its own investigation of the case file, of the applicant’s own confused statements especially (see paragraph 16 above). The Court accepts that, faced as it was with the applicant’s complete refusal to cooperate in any examination of his mental state at any relevant time, the Court of Appeal was entitled to conclude from the information thus obtained that the applicant was suffering from a genuine mental disorder which, whatever its precise nature might be, was of a kind or degree warranting compulsory confinement.
31. The Court notes in addition that the applicant was convicted of a crime of extreme violence for which he was handed a prison sentence and a TBS order with confinement in a custodial clinic. Article 5 § 1 (a) of the Convention applies to both (see Erkalo, loc. cit.; Morsink, loc. cit.; Brand, loc. cit.; Nelissen, loc. cit. and D.B. v. the Netherlands, loc. cit.). Admittedly the link between the original conviction and the measure involving confinement in a custodial clinic, required for Article 5 § 1 (a) to continue to apply, may eventually be broken if a position is reached in which a decision not to release or to re-detain is based on grounds that are inconsistent with the objectives of the sentencing court. In those circumstances, a detention that was lawful at the outset will be transformed into a deprivation of liberty that is arbitrary and, hence, incompatible with Article 5 (see Van Droogenbroeck, loc. cit.; Weeks v. the United Kingdom, 2 March 1987, § 49, Series A no. 114; Eriksen, cited above, § 78; and M. v. Germany, no. 19359/04, § 88, ECHR 2009). However, there is no suggestion that such a situation obtains already now.
32. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 26 March 2015.
Marialena TsirliJosep Casadevall
Deputy RegistrarPresident
Full & Egal Universal Law Academy