AS TO THE ADMISSIBILITY OF
Application no. 22954/04
by Danny VAN GILST
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 10 November 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr L. Caflisch,
Mr C. Bîrsan,
Mrs A. Gyulumyan,
Mrs R. Jaeger,
Mr E. Myjer, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 21 June 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Danny van Gilst, is a Netherlands national who was born in 1983 and is currently detained in the Netherlands. He was initially represented before the Court by his mother, Ms L van Gilst-Kezalowa, and subsequently by Mr C.F. Wassenaar, a lawyer practising in Rotterdam. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 May 2001, the applicant was placed in pre-trial detention on suspicion of having committed attempted homicide on 26 May 2001. He remained in pre-trial detention throughout the criminal proceedings that were subsequently brought against him.
On 16 April 2003, following proceedings on appeal, the Court of Appeal (gerechtshof) of The Hague, quashing the judgment given by the first instance trial court, convicted the applicant of (part of) the charges that had been brought against him. Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for this offence to a limited degree, the Court of Appeal sentenced him to eighteen months’ imprisonment less the time spent in pre-trial detention in combination with an order for his confinement in a custodial clinic (terbeschikkingstelling met bevel tot verpleging van overheidswege; hereinafter “TBS order”).
The applicant’s TBS order took effect on 1 May 2003. He was, however, not transferred to a custodial clinic but was held in pre-placement detention in an ordinary remand centre (huis van bewaring).
On 5 October 2003, the applicant’s parents filed a complaint with the National Ombudsman about the duration of their son’s pre-placement detention in a remand centre.
On 23 October 2003, the Minister of Justice prolonged the six-month period of pre-placement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden; hereinafter “the Act”) by three months.
On 18 November 2003, the National Ombudsman informed the applicant’s parents that their complaint would not be entertained as, under the Act, an appeal could be filed with the Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming) against a failure to admit to a custodial clinic.
On 3 December 2003, the National Ombudsman informed the applicant’s parents that – in accordance with their request of 23 November 2003 – he had transmitted their complaint of 5 October 2003 to the Appeals Board and that is was up to the latter to determine whether to accept this complaint as an appeal within the meaning of the Act.
By letter of 10 December 2003, the Appeals Board informed the applicant’s parents that, pursuant to Article 12 of the Act, a person subject to a TBS order must be admitted to a custodial clinic within six months and that, where this is not possible, the Minister of Justice can prolong the period of pre-placement detention by three months. Within seven days after receipt of the notification of such a prolongation, an appeal can be filed. In their son’s case, the Minister had prolonged his pre-placement detention for a first time on 23 October 2003. However, no appeal had been filed against this decision and, as it predated this decision, the parent’s letter of 5 October 2003 could not be regarded as such an appeal. The first possibility to challenge the duration of their son’s pre-placement detention would arise when the Minister would take a further prolongation decision.
On 20 January 2004, the Minister prolonged the applicant’s pre-placement detention by a further period of three months, i.e. until 24 April 2004. On 23 January 2004, the applicant filed an appeal against this decision with the Council.
On 29 April 2004, the Appeals Board quashed the Minister’s decision to prolong the applicant’s pre-placement detention from 26 January to 25 April 2004 on a formal ground, namely the Minister’s failure to comply with a procedural regulation under Article 54 § 2 of the Act concerning the notification of the decision to the applicant. Finding also that the total duration of the applicant’s pre-placement detention could not be regarded as having been so long that, balancing all relevant interests, it should be considered unreasonable or inequitable, and having found no indication that the applicant’s mental condition required a priority placement in a custodial clinic, the Appeals Board did not find that the impugned decision should be quashed for being in material breach of the Act. It decided that the applicant’s pre-placement detention should be prolonged until 25 April 2004. The Appeals Board decided to replace the Minister’s decision with its own decision to prolong the applicant’s pre-placement from 26 January to 25 April 2004 and awarded the applicant compensation in an amount of EUR 50 in respect of the procedural shortcoming in the Minister’s decision. No further appeal lay against this decision.
By decision of 3 May 2004, the Minister of Justice prolonged the applicant’s pre-placement detention by a further period of three months, i.e. until 23 July 2004. As this decision entailed that the total duration of the applicant’s pre-placement detention would exceed a period of twelve months, the Minister informed the applicant that he could – if he so wished – obtain compensation in an amount of EUR 600 for each month of pre-placement detention as from the thirteenth month of pre-placement detention and that this amount would be increased by EUR 125 per month after the expiry of a three months’ period of continued pre-placement detention. The total amount in compensation would be paid to the applicant after his admission to a custodial clinic. The applicant was invited to inform the Minister within seven days whether he wished to avail himself of this offer.
On 12 May 2004, this decision was notified to the applicant, who filed an appeal against this decision with the Appeals Board on 15 May 2004. On 21 July 2004, the applicant was admitted to a custodial clinic.
After the applicant had indicated to the Minister on an unspecified date that he wished to avail himself of the possibility to receive compensation for the time spent in pre-placement detention as proposed in the Minister’s decision of 3 May 2004, the text of a declaratory agreement (vaststellingsovereenkomst) was sent to the applicant. The applicant signed this agreement on an unspecified date and sent it to the head office of the Custodial Institutions Service (Dienst Justitiële Inrichtingen), where it was apparently received on 3 August 2004.
The copy of this agreement, made available to the Court by the Government, is signed on behalf of the Minister of Justice and the applicant in person, but is not dated apart from a handwritten note “3/8/04” followed by an illegible signature at the top of the document; apparently indicating the date of receipt.
The agreement, in so far as relevant, reads as follows:
“1. The State of the Netherlands (Ministry of Justice) ... hereinafter: the State
2. D. van Gilst ... hereinafter: Van Gilst
- on 11 July 1997 Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order has entered into force;
Van Gilst has been detained on 1 May 2003 in a remand centre awaiting placement in a custodial clinic whereas, to date, Van Gilst has not been admitted to a custodial clinic;
the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection, according to constant case-law, has considered permissible a pre-placement detention period of maximum 12 months;
no circumstances have appeared rendering necessary to have Van Gilst admitted to a custodial clinic with priority;
Van Gilst, therefore, is eligible as from 26 April 2004, for compensation for each month of pre-placement detention;
the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection, according to constant case-law, considers reasonable compensation of € 600 per month, on the understanding that this amount is increased by € 125 per period of three months;
the parties, mindful of the indications given by the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection for the determination of a reasonable compensation, wish to conclude an amicable settlement, on which the parties have reached consensus;
the parties wish to record this consensus in the present agreement.
DECLARE THEIR AGREEMENT AS FOLLOWS:
1. The State shall pay Van Gilst an amount in accordance with the above mentioned indications of the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection for compensation of the damage that he has suffered and suffers on account of his pre-placement detention. After signature of this declaratory agreement by both parties and admission of Van Gilst to a custodial clinic, the State will proceed to transfer the amount then due to the account that will be kept on behalf of Van Gilst in the custodial clinic where he will be placed.
2. Without prejudice to the foregoing, Van Gilst waives any right or claim in relation to the pre-placement detention and, in this matter, grants the State a full and final discharge (“Van Gilst doet onverminderd het voorgaande afstand van ieder recht of vordering in verband met de passantentermijn en verleent de Staat ter zake finale kwijting”).
3. Any dispute arising from this agreement must be submitted to the competent judge sitting in The Hague.
Drawn up in duplicate and signed”
On 2 September 2004, pursuant to this declaratory agreement, an amount of 1,800 euros (EUR) was transferred to the custodial clinic where the applicant was staying. On 10 September 2004, this amount was deposited in the applicant’s personal current account held at the custodial clinic.
In its decision of 29 September 2004, the Appeals Board determined the applicant’s appeal of 15 May 2004. Apparently neither party to these proceedings had informed the Appeals Board that, in the meantime, an amicable settlement had been concluded and that the agreed amount had been paid to the applicant.
It quashed the Minister’s decision of 3 May 2004 on formal grounds, namely the Minister’s failure to respect certain procedural rules, and awarded the applicant compensation for these procedural flaws in an amount of EUR 50. Further noting that – when the impugned decision was taken – the applicant’s pre-placement detention had lasted twelve months, it also decided to quash the Minister’s decision on substantive grounds. It found that such duration, balancing all relevant interests, should in this case be regarded as unreasonable and inequitable. As the applicant had been admitted to a custodial clinic in the meantime and legal effects of the impugned decision could not be made undone, it found that he was entitled to compensation.
On this point, the Appeals Board noted that the Minister had put to the applicant a proposal for compensation in accordance with the standard applied in the case-law of the Appeals Board which proposal had been accepted by the applicant but – in so far as it knew – no declaratory agreement had yet been signed by the applicant. The Appeals Board therefore fixed the compensation to be awarded to the applicant at EUR 600 per month as from the day on which his pre-placement detention had lasted for twelve months until 21 July 2004 when he had been admitted to a custodial clinic.
B. Relevant domestic law and practice
A description of the relevant domestic law and practice is set out in the Court’s judgment of 11 May 2004 in the case of Morsink v. the Netherlands (no. 48865/99).
The applicant complained that the duration of his pre-placement detention pending his admission to a custodial clinic was in violation of his rights under Article 5 of the Convention.
The applicant complained that the length of his pre-placement detention was contrary to his rights under Article 5 of the Convention, which provision guarantees the right to liberty and security.
The Government submitted that the amicable settlement agreement concluded with the applicant should be regarded as a full and final settlement of the matter. As the applicant had accepted financial compensation for the damage arising from the period he had been held in pre-placement detention, which amount had been paid by the State shortly after his admission to a custodial clinic, and had waived any right or claim in relation to his pre-placement detention, the Government considered that the applicant could not be considered a victim within the meaning of Article 34 of the Convention and that, consequently, the application should be rejected for being incompatible ratione personae.
The applicant denied that an amicable settlement had been concluded and submitted that the declaratory agreement signed by him could not be regarded as such. On this point, he relied on the finding of the Appeals Board in its decision of 29 September 2004 that there was no declaratory agreement, at least not to its knowledge. According to the applicant, it would have been for the respondent State to inform the Appeals Board that such an agreement had in fact been concluded if the State wished to hold this against him as the State did now. The applicant further submitted that, under the terms of the declaratory agreement, he had not waived his right to challenge the lawfulness of his pre-placement detention in that he had merely waived his rights in relation to this detention which, in his opinion, is not the same thing as challenging the lawfulness of his pre-placement detention as such.
The Court notes that, in August 2004, the applicant signed an amicable settlement agreement with the respondent State. Under the terms of this agreement, the State agreed to pay the applicant an amount in compensation for damage suffered by him on account of his duration of his pre-placement detention, and the applicant agreed to waive any right or claim in relation to his pre-placement detention and to grant the respondent State a full and final discharge in this matter.
The Court considers that a waiver of the “right to court” within the meaning of Article 6 § 1 or a waiver of the right to bring an application under Article 34 of the Convention in the form of an amicable settlement is not necessarily incompatible with the aim and purpose of the Convention. Such a resolution of a dispute has undeniable advantages for the individual concerned as well as for the administration of justice. However, a waiver of rights must, if it is to be effective for Convention purposes, be established in an unequivocal manner, be attended by minimum safeguards commensurate to its importance, and may not be tainted by constraint (see Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 25, § 49; and Poitrimol v. France, judgment of 23 November 1993, Series A no. 277-A, pp. 13-14, § 31).
On this point, the Court notes that the agreement provides for a judicial remedy for the determination of any disputes arising from the agreement. To the extent that the applicant now seeks to challenge the State’s interpretation of the agreement, the Court notes that he has not submitted this dispute to the judge designated in the agreement. It further notes that it has not been argued and that it has not appeared that the applicant was or felt compelled in any manner to sign this agreement.
The Court considers that the applicant’s waiver of his rights in respect of his pre-placement detention, as set out in the settlement agreement, is phrased in clear and unambiguous terms and can only be interpreted as a full waiver granting the State a final discharge in all matters relating to his pre-placement detention on the sole condition that the respondent State pay the financial compensation in accordance with the modalities set out in the agreement. This amount was in fact paid by the State, in accordance with the terms of the agreement, and deposited in the applicant’s account on 10 September 2004. This Court further notes that the amount in compensation agreed upon and paid to the applicant was based on, and was in conformity with, the case-law of the Appeals Board.
It is true that the agreement at issue was based on domestic case-law to the effect that a duration of pre-placement detention of less than twelve months was permissible, whereas the Court, in its judgment of 11 May 2004 in the case of Brand v. the Netherlands (no. 49902/99, §§ 66-67, 11 May 2004), held that even a delay of six months in the admission of a person to a custodial clinic was contrary to Article 5 § 1 of the Convention. Although this judgment had not yet become final when the applicant signed the agreement with the respondent State, he could have been aware of this ruling at the material time and, on that ground, have rejected the proposed settlement.
In view of its above considerations and having found no reasons for considering the settlement at issue, either in itself or the manner in which it came about, unacceptable for Convention purposes, the Court is of the opinion that the applicant has waived his right under the Convention to bring an application against the respondent State under Article 34 of the Convention, claiming that his pre-placement detention was in violation of his rights under Article 5. This finding is not altered by the fact that, in its ruling of 29 September 2004, the Appeals Board did not find it established that a settlement had been signed by the applicant, as neither party to these proceedings had informed the Appeals Board that this agreement had in fact been signed in the meantime.
Accordingly, the application must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Vincent Berger Boštjan M. Zupančič
VAN GILST v. THE NETHERLANDS DECISION
VAN GILST v. THE NETHERLANDS DECISION