SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48865/99 
by P.G.L. MORSINK 
against the Netherlands

The European Court of Human Rights (Second Section), sitting on 3 June 2003 as a Chamber composed of

Mr J.-P. Costa, President
 Mr L. Loucaides
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr V. Butkevych
 Mrs W. Thomassen
 Mrs A. Mularoni, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 15 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, P.G.L. Morsink, is a Netherlands national, who was born in 1959 and is currently staying in a custodial clinic in the Netherlands. He is represented before the Court by Ms L.H. Poortman-De Boer, a lawyer practising in Groningen.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 September 1997, following proceedings on appeal, the Arnhem Court of Appeal (gerechtshof) convicted the applicant of assault causing grievous bodily harm and sentenced him to fifteen months’ imprisonment with deduction of the time spent in pre-trial detention. In addition, having found that the applicant was suffering from a mental disorder and dangerous, the Court of Appeal ordered the applicant’s confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege).

Although the applicant had initially filed an appeal in cassation to the Supreme Court (Hoge Raad), he withdrew this appeal on 5 February 1998 when, after having served his prison sentence, the TBS order took effect. He was, however, not transferred to a custodial clinic but was detained in an ordinary remand centre (huis van bewaring).

On 7 August 1998, the applicant filed an appeal with the Appeals Board (beroepscommissie) of the TBS Section of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the apparent ex officio prolongation by three months of the six months’ period 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 referred to as “the 1997 Act”). He submitted that this six months’ period had expired, that he had not received a written notification from the Minister of Justice that this delay would be extended by three months and that, apparently, the procedure for selection and placement in a custodial clinic in his case had not yet started.

Between 11 September and 11 November 1998, the applicant stayed in the Dr. F.S. Meijers Institute for the purpose of selection and placement in a custodial clinic.

On 5 November 1998, the applicant filed a further appeal with the Appeals Board against the apparent second ex officio prolongation by three months. He further requested the Appeals Board to suspend the second prolongation request.

On 10 November 1998, the Minister of Justice filed written submissions with the Appeals Board in response to those filed by the applicant.

On 11 November 1998, the President of the Appeals Board rejected the applicant’s request to suspend the further execution of the Minister’s decision of 2 November 2002 to prolong the applicant’s stay in the remand centre by three months. Taking into account that the applicant, at the time of the decision, had spent eight months awaiting placement in a custodial clinic and that, according to the medical report of 15 October 1998, there was no apparent urgent medical need for placement in a custodial clinic, the President found no pressing interest necessitating a suspension of the Minister’s decision.

On 10 March 1999, after a hearing held on 19 January 1999, the Appeals Board gave its decision on the applicant’s appeals. This decision, insofar as relevant, reads:

“1. The challenged decisions

“1.1  The Minister had not extended by 4 August 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ... , this failure equals a decision to prolong this period.

1.2  The Minister had not extended by 2 November 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ..., this failure equals a decision to prolong this period. ...

3. The facts

... The appellant’s TBS order took effect on 5 February 1998. Since then, he has stayed transitorily in the G. remand centre awaiting placement in a custodial clinic.

By letter of 2 September 1998, the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period (passantentermijn) awaiting his placement in a custodial clinic had for the time being ipso iure been prolonged by three months from 4 August 1998 to 2 November 1998, holding out the prospect of further news to the appellant. On 16 October 1998 the appellant was heard by a penitentiary adviser.

By letter of 2 November 1998, the Minister informed the appellant that he still could not be placed in a custodial clinic and that the transitory period pending his placement in a custodial clinic was prolonged further from 2 November 1998 to 31 January 1999.

The appellant was admitted for selection purposes between 11 September 1998 and 11 November 1998 to the Dr F.S. Meijers Institute in Utrecht. He was selected for the custodial clinic X. in Y.

The Utrecht District Psychiatric Service has provided a medical statement dated 15 October 1998 on the appellant’s mental condition, which has been supplemented with a report of 16 October 1998.

4.  The parties’ submissions

... The [applicant’s] lawyer further considers, relying on the learned comment by an annotator to the <Bizzotto v. Greece> judgment of the European Court of Human Rights of 15 November 1996, Netherlands Law Reports (Nederlandse Jurisprudentie) 1998, no. 203, that a violation of Article 5 of the Convention already arises when the six months’ delay is exceeded. ...

[The Minister], as to the [applicant’s] reliance on Article 5 of the Convention, points out that the TBS order serves in the first place the protection of society and in the second place the treatment of the person concerned. According to the Supreme Court’s case-law, the execution of a TBS order in a remand centre is not a deprivation of liberty with an unlawful character. Where a reproach can be made of the fact that the “treatment aspect” is lacking, liability for damage does arise. If an appeal is declared well-founded by the Appeals Board, the “treatment aspect” is also lacking and imputable as from the expiry date concerned.

5.  The assessment

... 5.2.1  The following must be put first in assessing the appeal. On basis of the history of the enactment of Article 12 of the [1997] Act ..., it must be assumed that it has been the intention of the legislator that in principle a lack of capacity in the custodial clinics may give the Minister reason to prolong by three months, as often as necessary, the delay of six months set out in the first paragraph of this provision within which a person subject to a TBS order must be placed in a custodial clinic. A decision by the Minister to prolong this period on grounds of lack of capacity does not, therefore, constitute an automatic ground for declaring the appeal well-founded. ...

5.2.3  ... in examining appeals filed by persons subject to a TBS order against decisions of the Minister to prolong the transitory period, the Appeals Board must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to:

– the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period, as well as a prognosis on this for the three months following the decision;

– an indication of the average duration of transitory stays in remand centres of persons subject to a TBS order at the time when the decision to prolong the transitory period was taken;

– the pro justitia report in relation to the mental condition of the person concerned who is subject to a TBS order, and a statement by a doctor on the question whether the person concerned, in view of his mental condition, is able to stay, on a transitory basis, any longer in a remand centre.

5.2.4  The Minister is obliged, prior to the expiry of the transitory period referred to in Article 12 of the [1997] Act ..., to take a decision on the prolongation thereof and, in doing so, to respect the procedural regulations as set out in Article 53 § 2 (a) of the [1997] Act ... – the obligation to hear – and Article 54 § 2 of the [1997] Act ... – the obligation to inform. These regulations are of essential importance for the legal position of the person subject to a TBS order and the Minister is therefore obliged to respect these regulations in the decision-making process on the prolongation of the transitory period. ...

5.3  The argument based on Article 5 of the Convention fails. The detention of a person subject to a TBS order in a remand centre is after all based on the judicial decision in which the TBS order has been imposed, whereas Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) provides that “remand centres are intended for accommodating persons lawfully deprived of their liberty by a judicial decision ... for as long as their admission to a suitable place is not possible”.

5.4.1  Insofar as the appeal is directed against the prolongation of the transitory period for placement from 4 August 1998 until 2 November 1998, the Appeals Board considers as follows:

5.4.2  It has appeared from the examination of the present case that the Minister has not, prior to the expiry of the delay for placement, taken a decision to prolong that delay. Nor has the appellant been timely heard on this subject. The Minister’s reliance on the exception contained in Article 53 § 4 (a) of the [1997] Act ..., as regards refraining to hear requests for urgency, fails. This provision is not applicable as in the present case there was no sudden event requiring an immediate measure in which, therefore, there was no opportunity to hear the person concerned.

The Appeals Board is of the opinion that it follows ... that the appeal is well-founded and that the ... Minister’s [implied] decision to prolong the transitory period must be quashed on formal grounds.

5.4.3  The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister’s conduct referred to in 5.4.2. The Appeals Board  fixes this compensation, having heard the Minister, at 100 Netherlands Guilders (NLG).

5.4.4  As the Minister, regarding the prolongation at issue, has not sent a separate written notification to the appellant, but did inform the appellant, by a written notification of 2 November 1998, of the further prolongation of the transitory period after he had been heard about that, the Appeals Board shall not order the Minister to take a new decision in respect of the period referred to in 1.1. but will examine whether there are also material grounds for quashing the ... decision. Further reference is made to the considerations set out in 5.6.

5.5.1  Insofar as the appeal is directed against the prolongation of the transitory period for placement from 2 November 1998 until 30 January 1999, the Appeals Board considers as follows:

5.5.2  It has appeared from the examination of the present case that the Minister has not, prior to the expiry of the delay for placement, taken a decision to prolong that delay. The Appeals Board is of the opinion that it follows ... that the appeal is well-founded and that the ... Minister’s decision to prolong the transitory period must be quashed on this formal ground.

5.5.3  The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister’s conduct referred to in 5.5.2. The Appeals Board fixes this compensation, having heard the Minister, at NLG 100.

5.6  It has been sufficiently established from the examination in the present cases that, as a result of a lack of capacity, the appellant has still not been placed in a custodial clinic. It has also been sufficiently established that the Minister, in his decision in this matter, has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the TBS orders of the appellant and other [like] persons ... took effect.

5.7  The total duration of the appellant’s stay in a remand centre [awaiting placement in a custodial clinic] ... has not yet been so long that these decisions to prolong the transitory stay, in balancing all the interests that are to be taken into account, must be regarded as unreasonable or inequitable.

5.8  It appears from the medical statement of the Utrecht District Psychiatric Service of 16 October 1998 that the appellant’s mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible. Although the Appeals Board considers it highly desirable that the Minister, as regards subsequent prolongation decisions, submits on each occasion updated medical reports, it finds, in respect of the present appeals, that the medical report drawn up shortly before the second prolongation suffices. From the report on the selection examination in the period between 11 September 1998 and 11 November 1998 (falling partly within both of the challenged prolongation periods), it does not appear that the detention was unsuitable during the period of admission to the Dr F.S. Meijers Institute.

5.9  The Appeals Board is of the opinion, noting the above considerations, that the challenged decisions are materially not in violation of the [1997] Act ..., and that the delay within which the appellant should be placed in a custodial clinic was to be prolonged from 4 August 1998 to 2 November 1998 and from 2 November 1998 to 31 January 1999.

5.10  As the challenged decisions must be quashed on formal grounds, the Appeals Board determines, in application of Article 66 § 3 (b) in conjunction with Article 69 § 5 of the [1997] Act ..., that its decision in respect of the prolongations of the transitory period shall replace those which were challenged. ...”

No further appeal lay against this decision. The applicant was eventually placed in a custodial clinic on 7 June 1999.

B.  Relevant domestic law and practice

The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows:

Article 13

1. A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, can be placed in a judicial institution (justitiële inrichting) for the treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e apply by analogy. ...

Article 37

1. The judge may order that a person who, due to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, shall be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or goods. ...

Article 37a

1. The judge may impose a TBS order (terbeschikkingstelling) 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, or if the offence is defined in Articles 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 175 § 2 of the 1994 Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432 under 3o of the Criminal Code, and

2o  the said measure is necessary in the interests of the safety of others or the general safety of persons or goods.

2. In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect can be held criminally responsible for the offence.

3. In making an order under paragraph 1, the judge shall take account of the statements contained in the 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.

4. Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence.

Article 37b

1. The judge may order that a person who is subject to a TBS order shall be confined to a custodial clinic (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or goods. ...

Article 37c

1. Treatment shall be provided in custodial clinics for persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur).

2. The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a custodial clinic receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or goods.

3. The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence, or their right to receive visitors.

Article 37d

1. Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice:

a.  private institutions managed by legal persons established in the Netherlands;

b.  State institutions.

2. Treatment shall preferably take place in a private institution. ...

Article 37e

The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in State institutions.

Article 38c

1. The judge may, upon the application of the public prosecutions department, order that a person subject to a TBS order shall, contrary to the terms of the judgment, be confined to a custodial clinic if facts or circumstances which have emerged since the examination in court show that this is necessary in the interests of the safety of others or the general safety of persons or goods.

2. He shall make such an order only after he has ordered and received advice from at least two behavioural experts from different disciplines – one of whom must be a psychiatrist – who must have examined the person concerned prior to the beginning of the hearing in chambers. The advice shall be dated and signed and state reasons for the views expressed. The two behavioural experts shall issue their advice either jointly or separately. If the advice is dated more than twelve months before the beginning of the hearing in chambers, the judge can only take it into consideration with the consent of the public prosecutions department and the suspect. ...

Article 38f

1. The period of validity of a TBS order shall be suspended:

a.  during any period during which the person subject to the order is lawfully deprived of his liberty on other grounds or during which he evades such deprivation of liberty;

b.  during any period of more than a week during which the person subject to the order absents himself without leave from the custodial clinic to which he was committed under an order as referred to in Article 37b or 38c.

2. Notwithstanding the provisions of paragraph 1, opening words and (a), the period of validity of a TBS order shall not be suspended:

a.  if the person subject to the order has been admitted to a custodial clinic or any other psychiatric hospital under an order prescribed by Article 13 [of the Criminal Code] or in accordance with the provisions laid down in or pursuant to the Prisons Act (Beginselenwet gevangeniswezen), unless he absents himself without leave from the said clinic or hospital for more than a week;

b.  if, after the period of validity of the TBS order has begun, the person subject to the order has been committed to a psychiatric hospital under a judicial order, unless he absents himself without leave from the said hospital for more than a week.”

A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. It is initially imposed for a period of two years and may be prolonged by a judge for further periods of one or two years where the safety of others or the general safety of persons or goods so require (Article 38d of the Criminal Code). The total duration of a TBS order may not exceed four years, unless it has been imposed on grounds of an offence directed against, or constituting a danger to, the physical integrity of one or more persons. In the latter case, there is in principle no restriction on the number of extensions that can be granted by a judge (Article 38e of the Criminal Code).

Article 9 of the Prisons Act 1951 (Beginselenwet gevangeniswezen), as in force at the relevant time, provides:

“Remand centres are intended:

a. for the accommodation of those who must undergo punishments by imprisonment or military detention;

b. for the accommodation of all others lawfully deprived of their liberty by judicial decision, court order or public authority, insofar as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible.”

On 1 June 1999, a new Prisons Act (Penitentiaire Beginselenwet) entered into force, replacing the 1951 Act. Article 9 § 2 of the 1999 Act, insofar as relevant, reads:

“In remand centres can be held: ...

f. persons subject to a TBS order with confinement to a custodial clinic within the meaning of Articles 37b or 38 c of the Criminal Code for as long as their admission to a suitable clinic is not possible.”

On 1 October 1997, Articles 1–11 and 13–80 of the Act on confinement to a custodial clinic of persons subject to a TBS order (“the 1997 Act”) entered into force. The custodial clinics, of which there are currently seven in the Netherlands, are top security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The treatment provided by in these clinics is aimed at reducing this danger and preventing recidivism. The Act distinguishes between care (verpleging) and treatment (behandeling). The provision of care in a custodial clinic aims at the protection of society against the risks posed by persons subject to a TBS order by keeping them confined in a secure institution. The treatment provided for in a custodial clinic is geared to individual disorders and personalities. It is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society.

Pursuant to Article 12 of the 1997 Act, which provision had already entered into force on 11 July 1997, a person subject to a TBS order must be admitted to a custodial clinic within six months after the TBS order has taken effect. This period can be extended by the Minister of Justice by further three monthly periods if placement proves impossible.

Under Article 11 of the 1997 Act, the Minister of Justice must decide in which specific custodial clinic the person concerned is to be placed and that such a decision should – at least – take into account the requirements of the protection of society against the dangerousness of the person subject to a TBS order, the safety of persons other than the detainee or the general safety of others or goods, and the requirements of the treatment of the person concerned in view of the nature of the established inadequate development or pathological disturbance of his or her mental faculties.

The decision on the selection of the most appropriate custodial clinic – given the differences between the various institutions as regards their security levels, patient population (gender, psychiatric diagnosis of the patients and their ability to function in a group setting, etc.), methods of treatment and the average stay of patients – is in most cases preceded by a seven week period of psychiatric observation in the Dr F.S. Meijers Institute, an institution specialised in this field. In general, the selection procedure takes a total period of three months. In the National Ombudsman’s report nr. 96/575 of 5 December 1996, a delay of three months between a date on which a sentenced person subject to a TBS order becomes eligible for early release and the date of admission to a custodial clinic was found acceptable.

C.  Relevant international material

In the Report of 29 September 1998 of the European Committee for the Prevention of Torture and Inhuman Treatment (the “CPT”) on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated that:

“111.  Since the beginning of the 1990’s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT’s second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340.

Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.”

In their response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of detainees awaiting admission to a custodial clinic and of the steps taken to ensure that such detainees receive, at least minimally, adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and that the new statutory provision for the conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering custodial clinics.

The Government further informed the CPT that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem, but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offer a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively, and there is a growing demand among prisoners awaiting admission to a TBS institution for this kind of support.

COMPLAINTS

Relying on the Court’s findings in the case of Aerts v. Belgium (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1960-1962, §§ 42-50), the applicant complained that his transitory detention in a remand centre awaiting placement in a custodial clinic was in violation of his rights under Article 5 § 1 of the Convention.

The applicant further complained under Article 5 § 3 of the Convention that the decision of the Appeals Board remained without any effect as he was only placed in a custodial clinic on 7 June 1999 and that the Appeals Board cannot be regarded as an independent judicial body within the meaning of Article 5 § 3 of the Convention in that, apart from its judicial function, it also exercises an advisory function in respect of the execution of TBS orders.

THE LAW

The applicant complained that his transitory detention in a remand centre pending his placement in a custodial clinic was contrary to his rights under Article 5 § 1 of the Convention. He also complained under Article 5 § 3 of the Convention that the Appeals Board’s decision of 10 March 1999 remained without any effect in that he was only placed in a custodial clinic on 7 June 1999 and that the Appeals Board cannot be regarded as an independent judicial body.

Article 5 of the Convention, insofar as relevant, reads:

“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; ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

(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; ...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. ...”

As to the applicant’s complaint under Article 5 § 1 of the Convention about his transitory detention in a remand centre pending his placement in a custodial clinic, the Court considers that this part of the application must be brought to the notice of the Netherlands Government in accordance with Rule 54 § 3(b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.

The applicant also complained that his rights under Article 5 § 3 of the Convention were breached in that the Appeals Board’s decision remained without any effect and this Board cannot be regarded as an independent judicial body.

The Court considers that the applicant’s detention as a person subject to a TBS order was directly based on the Arnhem Court of Appeal judgment of 16 September 1997 in which it convicted the applicant of assault causing grievous bodily harm and, in addition to a prison sentence, imposed a TBS order.

In these circumstances, the Court is of the opinion that the applicant’s detention after he had served his prison sentence cannot be regarded as a form of pre-trial detention, within the meaning of Article 5 §§ 1 (c) and 3 of the Convention, but is to be considered as detention “after a conviction by a competent court”, within the meaning of Article 5 § 1 (a) of the Convention. Consequently, the facts complained of do not give rise to an issue under Article 5 § 3 of the Convention.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that his detention in a remand centre awaiting placement in a custodial clinic was in violation of his rights under Article 5 § 1 of the Convention; and

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

MORSINK v. THE NETHERLANDS DECISION


MORSINK v. THE NETHERLANDS DECISION