Committee of Ministers

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SECRETARIAT GENERAL
SECRETARIAT OF THE COMMITTEE OF MINISTERS
SECRETARIAT DU COMITE DES MINISTRES
Contact: Abel Campos
Tel: 03 88 41 26 48
Date:
19/06/2013
DH-DD(2013)702
Documents distributed at the request of a Representative shall be under the sole responsibility of the said
Representative, without prejudice to the legal or political position of the Committee of Ministers.
Meeting:
1179 meeting (24-26 September 2013) (DH)
Item reference:
Action report (26/04/2013)
Communication from the Netherlands concerning the case of Van der Velden (II) against Netherlands
(Application No. 21203/10)
***********
Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de
ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.
Réunion :
1179 réunion (24-26 septembre 2013) (DH)
Référence du point :
Bilan d'action
Communication des Pays-Bas concernant l’affaire Van der Velden (II) contre Pays-Bas (requête
n° 21203/10) (anglais uniquement).
DH-DD(2013)702 : distributed at the request of the Netherlands / Pays-Bas.
Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative,
without prejudice to the legal or political position of the Committee of Ministers. / Les documents distribués à la demande d’un/e
Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou
politique du Comité des Ministres.
Action Report
of the Government of the Netherlands
on the implementation of the judgment of the Court
concerning Application No. 21203/10
VAN DER VELDEN
v.
the Netherlands
Judgment of 31 July 2012
Final on 31 October 2012
Introduction
1. On 6 April 2010, Mr Hendrik Jan VAN DER VELDEN (‘the applicant’) submitted an application
to the European Court of Human Rights (‘the Court’) under article 34 of the European
Convention
for
the
Protection
of
Human
Rights
and
Fundamental
Freedoms
(‘the
Convention’).
2. On 31 July 2012, the Court found a violation of article 5 § 1 of the Convention.
3. With reference to the standard classification procedure,1 the Government of the Netherlands
(‘the Government’) wishes to present its action report, with a view to closure of the case by
the Committee of Ministers.
Case description
4. The applicant claimed that the extension of his TBS order, which involved committal to a
custodial clinic, was not in accordance with a procedure prescribed by law and therefore
violated article 5, paragraph 1 of the Convention. The Court concluded that the extension of
the applicant's detention after 29 August 2009 was not in accordance with national law, which
constituted a violation of the aforementioned article.
Individual measures
5. The Government would observe that the applicant was freed before the Court's judgment; his
TBS order was terminated on 29 August 2011.
General measures
6. First, the judiciary has adopted measures to guarantee that when a court imposes a TBS
order, its judgment will now indicate whether that order is being imposed in relation to a
violent offence, giving reasons. The case has been raised on a number of occasions in the
National Consultative Committee of Criminal Law Sector Chairpersons for the appeal courts
(gerechtshoven) and district courts (rechtbanken), procedures have been adapted and
specific 'building blocks' for judgments have been drawn up. Sufficient reasons will thus be
given in cases where the courts impose a TBS order that is not subject to a maximum
1
As set out in CM/Inf/DH(2010)45 and CM/Inf/DH(2010)37E.
2
duration. See the press release of the Council for the Judiciary (Raad voor de Rechtspraak)
dated 30 January 2013.2
7. The Court's judgment also led to national case law setting out the implications for the
administration of justice by the national courts. On 12 February 2013, the Supreme Court
delivered a leading judgment in this respect3 The Supreme Court interpreted the Court's
judgment to mean that the conditions to be satisfied in order for the deprivation of liberty to
be lawful must be clearly defined and the manner in which they are applied must be
reasonably foreseeable. The opinion of the court imposing the TBS order as to whether the
order relates to a violent crime is therefore decisive in determining whether the measure can
be extended on the basis of articles 38d and 38e of the Dutch Criminal Code (Wetboek van
Strafrecht). Usually it will be fairly simple for the court that considers extension to determine
whether the court that imposed the TBS order set a maximum duration if the latter court
explicitly stated in its reasons whether or not the order was imposed in connection with a
violent crime. This will mainly be relevant where the offence cannot automatically be classed
as a violent crime, for instance in the case of making criminal threats or stalking, for which a
TBS order can be imposed on the basis of article 37a, paragraph 1 (1°) of the Criminal Code.
However, the mere fact that the court that imposed the order did not explicitly state in the
reasons for its decision that it was imposed in relation to a violent crime does not mean that
the order cannot be extended if its total duration exceeds four years. It can also be inferred
from other parts of the final judgment of the court that imposed the order that its imposition
was related to violent crime. If it is clear on this basis that the order related to a violent
crime, it cannot be argued that the option of extending the TBS order after four years was not
foreseeable to the convicted person. There is no rule of law preventing the court considering
extension from coming to the conclusion, by interpreting the judgment of the court that
imposed the order and drawing partly on information not stated in the final judgment, that
the TBS order was imposed in relation to a violent crime; and the possibility cannot be
excluded that other court papers at the disposal of the court that imposed the order might
provide clarification in this respect. Neither is there any rule of law preventing the court
considering extension from deciding that it is implicit in the final judgment of the court that
imposed the TBS order that a violent crime was involved. In cases like the present one, in
which the court found that a threat of homicide was proven, it must be considered reasonably
foreseeable that the court considering extension will judge that the TBS order was imposed in
connection with a violent crime; this will therefore come as no surprise to the convicted
person.
8. Following the Court's judgment, the State Secretary for Security and Justice asked the
Council for the Judiciary to identify any cases similar to Van der Velden's. A TBS Task Force
was established for this purpose, its members drawn from the Public Prosecution Service and
2
http://www.rechtspraak.nl/Actualiteiten/Nieuws/Pages/Resultaten-onderzoek-TBS-vonnissen-naar-gevolgenuitspraak-Europese-Hof.aspx
3
from among the ranks of judges, in-house lawyers and judge's clerks. The TBS Task Force
has examined almost 2,400 case files, producing a list of 111 cases that require further
attention, as the court that imposed the order may have given insufficient reasons for
imposing a TBS order in relation to a violent crime. By letter of 30 January 20134 the State
Secretary of Security and Justice presented the results of the survey to the House of
Representatives of the States General (Tweede Kamer). On 12 February 2013 the Supreme
Court gave the aforementioned judgment. In each individual case, the national courts will
now be required to determine whether the TBS order can be extended after four years in light
of your Court's judgment, drawing on the principles set out by the Supreme Court.
Non-pecuniary damage
9. On 19 December 2012 the Government paid the applicant the sum of €43,800 in respect of
non-pecuniary damage. The payment was notified to the secretariat of the Department for
the Execution of Judgments of the Court by email on 25 January 2013. The payment was
therefore within the time limit of three months from the date on which the judgment became
final in accordance with article 44, paragraph 2 of the European Convention on Human Rights.
10. Proof of payment is attached to this Action Report.5
Costs and expenses
11. On 19 December 2012 the Government paid the applicant the sum of €6,482.70 in respect of
legal assistance costs and the sum of €1,361.37 in respect of VAT on those costs. The
payment was notified to the secretariat of the Department for the Execution of Judgments of
the Court by email on 25 January 2013. The payment was therefore within the time limit of
three months from the date on which the judgment became final in accordance with article
44, paragraph 2 of the European Convention on Human Rights.
12. Proof of payment is attached to this Action Report.6
Additional information
13. The Court’s judgment in this case and its consequences have been discussed in:
3
-
Nederlands Juristenblad 2013, 326, 425 and 508;
-
Delikt en Delinkwent 2012, no. 9;
-
Rechtspraak van de Week 2013/319;
LJN: BY8434.
4
Annexe 1. (see also replies to parliamentary questions, published as Aanhangsel van de Handelingen, 20122013, 1381 & 1473).
5
Annexe 2.
4
-
Nieuwsbrief Strafrecht 2012/288, with notes by P. de Bruin.
Conclusion
14. The Government of the Netherlands believes that the measures taken fulfil the requirements
arising from the Court’s judgment and that by taking these measures similar violations will be
prevented from occurring in the future.
The Hague, 26 April 2013
Liselot Egmond
Deputy Agent of the Government of the Netherlands
6
Annexe 2.
5

Committee of Ministers

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