THIRD SECTION
DECISION
Application no 35965/14
Adrianus Cornelis Hendricus Johannes HERMAN
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 17 November 2015 as a Committee composed of:
Helen Keller, President,
Johannes Silvis,
Pere Pastor Vilanova, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 9 May 2014,
Having regard to the declaration submitted by the respondent Government on 17 February 2015 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Adrianus Cornelis Hendricus Johannes Herman, is a Dutch national, who was born in 1975 and lives in Helmond. He was represented before the Court by Mr T.P.M. Kouwenaar, a lawyer practising in ‘s‑Hertogenbosch.
2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 10 June 2012 at 10.27 a.m. the applicant was arrested on suspicion of robbery. He was brought before the assistant public prosecutor an hour after his arrest, i.e. at 11.25 a.m., and subsequently held for questioning. It is noted that article 61 of the Code of Criminal Procedure (Wetboek van Strafvordering; “CCP”) stipulates that a suspect can be held for investigative purposes for a maximum of six hours from the moment he or she is brought before the (assistant) public prosecutor. On the same day at 7.00 p.m. the applicant was taken into police custody (inverzekeringstelling).
5. On 13 June 2012 the investigating judge (rechter-commissaris) found the police custody order lawful, even though it appeared that the procedural requirements had not been complied with because the above-mentioned maximum period of deprivation of liberty for the purpose of questioning had been exceeded. However, after balancing the interests at stake, the investigating judge decided that the applicant would not be released immediately and subsequently his initial detention on remand (inbewaringstelling) was ordered. No further appeal lay against this decision.
6. On 20 June 2012 the Regional Court, sitting in chambers, ordered the applicant’s extended detention on remand (gevangenhouding). The applicant appealed this decision and claimed that the police custody had been unlawful. The Court of Appeal rejected this claim as it was held that the alleged unlawfulness of the police custody could not be discussed anymore at this stage of the proceedings, but it could be put forward in the criminal proceedings against the applicant when it came to the determination of the sentence. The applicant’s appeal was dismissed on 12 July 2012.
7. On 8 October 2012 the applicant was convicted of inter alia the robbery in connection with which he had been placed in police custody on 10 June 2012. The applicant asked the Regional Court to mitigate his sentence in view of the fact that the abovementioned maximum period during which a person could be held for questioning had been exceeded. It was held by the Regional Court that there were no reasons to mitigate the sentence, because the applicant had not suffered any concrete disadvantage as a result of that period having been exceeded. The Regional Court sentenced the applicant to a partially suspended prison term of 22 months.
8. The applicant appealed this decision and claimed that the police custody had been unlawful. In its decision of 12 February 2013 the Court of Appeal quashed the decision of the Regional Court, but the applicant’s claim was rejected on the same grounds as those employed by the Regional Court.
9. On 1 April 2014 the Supreme Court rejected the applicant’s appeal on points of law.
THE LAW
10. The applicant complained of a violation of Article 5 of the Convention in that he was deprived of his liberty for longer than legally allowed and was not awarded any compensation for this unlawful deprivation of liberty.
A. Application of Article 37 § 1 (c) of the Convention
11. On 23 October 2014 the application was communicated to the Government.
12. After attempts to reach a friendly settlement had failed, the Government informed the Court by a letter of 17 February 2015 that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. In this connection they informed the Court that the standard amount of compensation in the Netherlands for one day of unlawful detention was 105 euros (EUR). They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration provided as follows:
“[T]he Government ... hereby acknowledge that the applicant was deprived of his liberty in breach of Article 5 § 1 (c) of the Convention during the period between 5.25 and 7.00 p.m. on 10 June 2012. The deprivation of liberty during this period exceeded the statutory limit on holding a suspect for questioning by one hour and thirty-five minutes. Although the national courts confirmed that the statutory limit was exceeded, they concluded that this procedural violation did not cause such harm to the applicant as to justify a reduction of his sentence by way of compensation. Therefore, the applicant did not have an effective and enforceable right to compensation for his unlawful detention in contravention of Article 5 § 5 of the Convention.
The Government sincerely regrets this course of events and is willing to offer the applicant just satisfaction to the amount of EUR 105 and reimbursement of any costs made in relation to the proceedings before the Court, provided they are specified, reasonable and necessarily incurred.”
13. By a letter of 25 February 2015, the applicant indicated that he was not satisfied with the terms of the unilateral declaration, arguing that if he had been released once the maximum period during which he could have been held had expired, he would not have found himself in the situation where the investigating judge had ordered his initial detention on remand and the authorities would then not have been able to proceed to execute still outstanding prison terms to which he had previously been sentenced. Thus, the unlawful deprivation of liberty had led to the applicant having been kept detained for a year.
14. The Court recalls 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 application”.
15. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
16. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03).
17. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed, and noting that it does not appear that the execution of the outstanding prison sentences subsequent to the applicant having been taken in initial detention on remand amounted to an unlawful deprivation of liberty, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
18. 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 application (Article 37 § 1 in fine).
19. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application 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).
20. Accordingly, the application should be struck out of the list.
B. Application of Rule 43 § 4 of the Rules of Court
21. When it strikes out an application, the Court may award legal costs (Rule 43 § 4 of the Rules of Court). In this respect it notes that the Government have indicated in their unilateral declaration that they are prepared to reimburse costs made by the applicant in relation to the present proceedings (see paragraph 12 above).
22. In respect of costs thus incurred the applicant submitted on 11 March 2015 that he had been provided with State-sponsored legal aid (toevoeging) pursuant to which he was to pay a mandatory personal contribution (eigen bijdrage) of EUR 143 to his legal representative.
23. Although invited to do so, the Government did not comment on the amount of costs which the applicant claimed he had incurred in the present proceedings.
24. The Court considers it reasonable to award the applicant the amount of EUR 143 as regards costs incurred.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 5 §§ 1 (c) and 5 of the Convention;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Holds
(a) that the respondent State is to pay to the applicant, within three months, in addition to the sum contained in the unilateral declaration submitted by the Government on 17 February 2015, EUR 143 (one hundred and forty-three euros) for costs and expenses incurred in the proceedings before the Court;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the overall amount 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 10 December 2015.
Marialena TsirliHelen Keller
Deputy RegistrarPresident
Full & Egal Universal Law Academy