THIRD SECTION DECISION Application no. 40060/13 Mohamed AHACHAK against the Netherlands and 3 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 13 November 2014 as a Chamber composed of: Josep Casadevall, President, Luis López Guerra, Ján Šikuta, Dragoljub Popović, Johannes Silvis, Valeriu Griţco, Iulia Antoanella Motoc, judges, and Stephen Phillips, Section Registrar, Having regard to the above applications, lodged on 11 June 2013, 13 August 2013, 8 November 2013 and 24 October 2013 respectively; Having deliberated, decides as follows: THE FACTS 1. The facts of the cases, as submitted by the applicants, may be summarised as follows. A. Particular circumstances of the cases 1. Mr Mohamed Ahachak 2. Mr Mohamed Ahachak is a Moroccan national born in 1981. He is currently detained in a custodial clinic in Poortugaal (near Rotterdam), the Netherlands. He was represented by Mr J.C. de Goeij, a lawyer practising in Alkmaar.
2 AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 3. On various dates in August and September 2002 Mr Ahachak forced shopkeepers at knifepoint to hand him money. 4. On 16 October 2003 the Court of Appeal (gerechtshof) of The Hague convicted Mr Ahachak on appeal of various counts of robbery with the threat of violence. It sentenced him to two years imprisonment and ordered him placed at the disposal of the Government (terbeschikkingstelling, hereafter TBS order ) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). The judgment included the following reasoning: These serious crimes, committed with the threat of violence, have had psychological consequences for the victims in addition to the pecuniary damage caused. Moreover, such crimes cause disquiet in society and increase feelings of insecurity. 5. After an initial four-year period which ended no later than 2008, the TBS order was extended several more times. In 2012 it came up for biennial review once more (Article 38d 2 of the Criminal Code (Wetboek van Strafrecht)). 6. On 10 July 2012 the Regional Court (rechtbank) of The Hague gave a decision extending the TBS order for a further two years. 7. Mr Ahachak appealed to the Arnhem Court of Appeal, which held a hearing on 17 December 2012. Mr Ahachak s counsel, relying on this Court s judgment in the case of Van der Velden v. the Netherlands, no. 21203/10, 31 July 2012, argued that since the judgment of 16 October 2003 made no mention of an offence directed against, or endangering, the bodily inviolability of one or more persons (Article 359 7 of the Code of Criminal Procedure (Wetboek van Strafvordering)), the duration of the TBS order could be no more than four years (Article 38e 1 of the Criminal Code). 8. The Arnhem Court of Appeal gave its decision on 3 January 2013. It extended the TBS order by a further two years, reasoning as follows: Contrary to the argument made by counsel, the Court of Appeal takes the view that the TBS order is not bound to any maximum duration, since... in view of the conviction, the qualification and the reasoning on which the imposition of the measure is based, considered in context (in onderling verband en samenhang bezien), the offences in question were directed against, or endangered, the bodily inviolability of one or more persons. 2. Mr Stephanus Maria Anna Hendrikus Janssen 9. Mr Stephanus Maria Anna Hendrikus Janssen is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented by Mr D.W.H.M. Wolters, a lawyer practising in Hoofddorp. 10. On 5 March 2002 Mr Janssen started a fire in a lavatory in an office building by setting a towel alight with a burning cigarette.
AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 3 11. On 24 September 2002 the Roermond Regional Court convicted Mr Janssen of arson endangering property and life. It sentenced him to seven months imprisonment and imposed a TBS order with confinement in a custodial clinic. The judgment included the following reasoning: In setting the sentence, the Regional Court has considered, in particular, the seriousness of the fact found proven in relation to other criminal offences, in addition to the interest of enforcing compliance with standards and the circumstance that the accused... has been convicted before. In addition, the Regional Court has considered the dangerousness (gevaarzettend karakter) of the fact found proven and the social unrest to which it has contributed. and The safety of others and the general safety of persons and goods require the imposition of a TBS order. and Since the safety of others than the accused and the general safety of persons and goods so require, the accused shall be confined in a custodial clinic. 12. After an initial four-year period which ended no later than 2006, the TBS order was extended several more times. In 2012 it came up for biennial review once more. 13. On 12 October 2012 the Roermond Regional Court held a hearing. Mr Janssen s counsel argued, among other things, that the duration of the TBS order was limited in time to four years since it had not been imposed for an offence directed against, or endangering, the bodily inviolability of one or more persons. 14. The Regional Court gave a decision on 26 October 2012 extending the TBS order for a further two years. Its reasoning included the following: The Regional Court takes the view that the conviction and the qualification, together with the reasons given in sentencing, which refers to the dangerousness of the fact found proven and the social unrest to which it has contributed, unambiguously shows that the crime in question is of the type referred to in Article 359 7 of the Code of Criminal Procedure. 15. On 21 February 2013 the Arnhem-Leeuwarden Court of Appeal, sitting in Arnhem (which by this time had succeeded the Arnhem Court of Appeal), having held a hearing on 7 February 2013, confirmed the decision of the Regional Court including its reasoning. 3. Mr Charles Ferdinand van Akerlaken 16. Mr Charles Ferdinand van Akerlaken is a Netherlands national born in 1965. He is currently detained in a custodial clinic in Venray. He was represented before the Court by Ms D.N. de Jonge and Mr T. de Bont, lawyers practising in Amsterdam.
4 AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 17. In April 2001 Mr van Akerlaken induced the staff of a dispensing chemist s to hand over medicine by banging his fist on the counter and threatening murder and arson. 18. On 7 July 2002 the Amsterdam Court of Appeal convicted Mr van Akerlaken on appeal of extortion and threatening lethal violence and arson. It sentenced him to 23 weeks imprisonment and imposed a TBS order with confinement in a custodial clinic. Its reasoning included the following: By his behaviour and actions, the accused has caused the persons involved great fear. The facts set out above cause serious feelings of unrest and insecurity in society in general and retail staff in particular. Moreover, extortion causes nuisance and damage to victims. 19. After an initial four-year period which ended no later than 2007, the TBS order was extended several more times. In 2012 it came up for biennial review once more. 20. On 7 December 2012 the Amsterdam Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence directed against, or endangering, the bodily inviolability of one or more persons as referred to in Article 359 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended. 21. The public prosecutor appealed to the Arnhem-Leeuwarden Court of Appeal. 22. Having held a hearing on 11 April 2013, the Court of Appeal gave a decision on 25 April 2013 extending the TBS order for a further year. Its reasoning included the following: The Court of Appeal finds that the [applicant] was convicted by the judgment of the Amsterdam Court of Appeal of 7 October 2002 of: extortion; threatening lethal violence and arson. In view of the conviction, the qualification and the reasoning on which the sentence and the measure [i.e. the TBS order] is grounded, viewed in context, it is implicit in the judgment that the TBS order was given in connection with a crime of violence within the meaning of Article 38e 1 of the Criminal Code, namely: extortion, involving non-verbal action by the [applicant] (banging a counter forcefully with his fist), with the intention to add force to the verbal threat, such action by its nature being aggressive towards the person so threatened. It cannot therefore be said that the possibility of an extension of the [TBS order] beyond four years could not reasonably be foreseen by [the applicant]. Unlike the Regional Court, the Court of Appeal therefore takes the view that the TBS order in this case is not limited in duration.
AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 5 4. Ms Mulki Mohamed Wehelie 23. Ms Mulki Mohamed Wehelie is a Somali national born in 1969. She is currently detained in a custodial clinic in Balkbrug. She was represented by Mr I. Vreeken, a lawyer practising in Zutphen. 24. In September 1997 Ms Wehelie removed her five-year-old son, who had been taken into public care, from the supervision of the child-care authorities by threatening social workers and a police officer with an object that had the appearance of a firearm but later turned out to be a gas alarm pistol. 25. On 21 October 1999 the Amsterdam Court of Appeal convicted Ms Wehelie on appeal of threatening the social workers and the police officer with a crime directed against their lives and removing a minor from the supervision of the person to whom the minor had been lawfully entrusted. It imposed a TBS order with confinement in a custodial clinic without an additional penal sentence. The judgment referred to, among other things, the threatening and frightening nature of the facts found proven. It included the following reasoning: In view of the above findings, the Court of Appeal considers that the safety of others requires the imposition of a TBS order. Moreover, the safety of others requires the accused to be confined in a custodial clinic. 26. After an initial four-year period which ended no later than 2003, the TBS order was extended several more times. 27. On 3 March 2011 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Jusititie) decided to impose an exclusion order (ongewenstverklaring) on Ms Wehelie pursuant to the Aliens Act 2000 (Vreemdelingenwet 2000). 28. In 2012 the TBS order came up for biennial review once more. 29. On 26 November 2012 the Utrecht Regional Court gave a decision finding that the sentencing judgment failed to make mention of an offence directed against, or endangering, the bodily inviolability of one or more persons as referred to in Article 359 7 of the Code of Criminal Procedure. In the light of the Van der Velden v. the Netherlands judgment of this Court, the TBS order therefore could not be extended. 30. The public prosecutor (officier van justitie) appealed to the Arnhem- Leeuwarden Court of Appeal. 31. Having held a hearing on 14 February 2013, that Court of Appeal, sitting in Arnhem, gave a decision on 7 March 2013. Overturning the decision of the Regional Court, it found in view of the reference in the sentencing judgment to the threatening and frightening nature of the facts found proven that the offence of which Ms Wehelie had been convicted was one directed against, or endangering, the bodily inviolability of one or more persons so that the TBS order was not limited in duration and could reasonably be expected to be extended beyond four years. However, it
6 AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION adjourned the case in order to seek certain information not relevant to the complaint before the Court from the Immigration and Naturalisation Service (Immigratie- en naturalisatiedienst) and the Ministry of Security and Justice (Ministerie van veiligheid en justitie). 32. On 4 July 2013, having obtained the information required and having held a fresh hearing in the meantime, the Court of Appeal gave a decision extending the TBS order by one year. 33. Ms Wehelie s TBS order has since been extended for a further period of one year, by a decision given on 31 October 2013 by the Central Netherlands Regional Court (rechtbank Midden-Nederland, successor to the Utrecht Regional Court). B. Relevant domestic law and practice 1. The Criminal Code 34. As relevant to the case, the Criminal Code provides as follows: 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.... 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. 35. All applicants were found guilty of offences carrying a maximum sentence of four years or more. 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
AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 7 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 bodily inviolability 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. 2. The Code of Criminal Procedure 36. As relevant to the case, the Code of Criminal Procedure provides as follows:... Article 359 7. If a TBS order with an order for confinement in a custodial clinic has been imposed in connection with an indictable offence directed against, or endangering, the bodily inviolability of one or more persons, the judgment shall so indicate, giving reasons. 8. All on pain of nullity. COMPLAINTS 37. The applicants all complained under Article 5 1 of the Convention about the prolongation of their TBS orders. In their submission the TBS orders were limited in duration pursuant to Article 38e 1 of the Criminal Code given that the sentencing judgments did not, as required by Article 359 7 of the Code of Criminal Procedure, specify that they had been convicted of indictable offences directed against, or endangering, the bodily inviolability of one or more persons. 38. The applicant Ms Wehelie complained in addition of her detention under Article 7 1 of the Convention and of the modalities of her detention under Article 3 of the Convention.
8 AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION THE LAW A. Joinder of the applications 39. The Court finds that, given the common legal background of the applications and the similarity of the facts on which they are based, it is appropriate to examine them in a single decision. It will therefore join the applications. B. Complaints under Article 5 1 of the Convention 40. The applicants all complain that the extension of their TBS orders beyond an initial period of four years violates domestic law, and consequently is contrary to Article 5 1 of the Convention, which in its relevant part provides 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: (a) the lawful detention of a person after conviction by a competent court;... (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;... 41. Article 35 1 of the Convention provides as follows: The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken. 42. According to the standing case-law of the Court and the Commission, the six-month time-limit starts to run on the day following delivery of the final domestic decision and expires six calendar months later (see, among many other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, 44, 29 June 2012, with further references). 43. The final decision, for purposes of Article 35 1 of the Convention, is the domestic decision which finally determines the applicant s position in relation to the matter complained of (see, among many other authorities, Demicoli v. Malta, 27 August 1991, 27, Series A no. 210; Aerts v. Belgium, 30 July 1998, 41, Reports of Judgments and Decisions 1998-V; and Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, Commission decision of 7 June 2001). 44. In Van der Velden (cited above, 35-36) the Court found a violation of Article 5 1 on the ground that the extension of the TBS order with confinement in a custodial clinic after the end of the fourth year of its duration had not been in accordance with a procedure prescribed by law.
AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION 9 It appeared that the domestic court granting extension beyond the four-year period in that case had thereby deviated from the final judgment of the convicting domestic court. The Court observes that the application in that case was lodged within six months from the decision which first extended the order beyond four years. 45. The Court finds that the final decision relevant to the applicants complaints was in each case the decision by which the TBS orders were first extended beyond the initial four years, that being the decision which in the applicants submission ought to have given due effect to Article 38e 1 of the Criminal Code (see paragraph 35 above) but did not. The six-month period therefore began to run no later than 2008 in the case of Mr Mohamed Ahachak; no later than 2006 in the case of Mr Stephanus Maria Anna Hendrikus Janssen; no later than 2007 in the case of Mr Charles Ferdinand van Akerlaken; and no later than 2003 in the case of Ms Mulki Mohamed Wehelie. 46. The applications were lodged on various dates in 2013. It follows that they have been introduced out of time and must be rejected in accordance with Article 35 1 and 4 of the Convention. C. Other complaints 47. Referring in general terms to her complaint under Article 5 1 of the Convention, Ms Wehelie also complained under Article 7 of the Convention, which provides as follows: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.... 48. She also complained that her detention which in her submission was unlawful constituted inhuman and degrading treatment, and that, having been handed an exclusion order, she was denied treatment aimed at facilitating her gradual return to society. She relied on Article 3 of the Convention, which provides as follows: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 49. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention.
10 AHACHAK v. THE NETHERLANDS AND OTHER APPLICATIONS DECISION For these reasons, the Court by a majority Decides to join the applications; Declares the applications inadmissible. Stephen Phillips Registrar Josep Casadevall President APPENDIX List of applicants: 1. 40060/13 AHACHAK, Mohamed 2. 53189/13 JANSSEN, Stephanus Maria Anna Hendrikus 3. 67732/13 VAN AKERLAKEN, Charles Ferdinand 4. 70992/13 WEHELIE, Mulki Mohamed