ERKALO v. THE NETHERLANDS
Doc ref: 23807/94 • ECHR ID: 001-45910
Document date: July 2, 1997
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EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 23807/94
D.S.E.
against
the Netherlands
REPORT OF THE COMMISSION
(adopted on 2 July 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-15). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-10) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 11-15). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 16-29) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 16-22). . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law
(paras. 23-29). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 30-56) . . . . . . . . . . . . . . . . . . . . .7
A. Complaints declared admissible
(para. 30). . . . . . . . . . . . . . . . . . . . .7
B. Points at issue
(para. 31). . . . . . . . . . . . . . . . . . . . .7
C. As regards Article 5 para. 1 of the Convention
(paras. 32-40). . . . . . . . . . . . . . . . . . .7
CONCLUSION
(para. 41). . . . . . . . . . . . . . . . . . . . .9
D. As regards Article 5 para. 4 of the Convention
(speedy review)
(paras. 42-47). . . . . . . . . . . . . . . . . . .9
CONCLUSION
(para. 48). . . . . . . . . . . . . . . . . . . . 10
E. As regards Article 5 para. 4 and Article 13 of the
Convention (absence of a right to appeal)
(paras. 49-52) . . . . . . . . . . . . . . . . . 10
CONCLUSION
(para. 53). . . . . . . . . . . . . . . . . . . . 11
F. Recapitulation
(paras. 54-56). . . . . . . . . . . . . . . . . . 11
APPENDIX: DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION. . . . . . . . . 12
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is an Ethiopian citizen, born in 1970, and at
present detained at a psychiatric clinic in Enschede, the Netherlands.
He was represented before the Commission by Mr Mark-Willem Stoet, a
lawyer practising in Amsterdam.
3. The application is directed against the Netherlands. The
respondent Government were represented by their Agent,
Mr Herman von Hebel, of the Netherlands Ministry for Foreign Affairs.
4. The case concerns the applicant's complaints under Articles 5
paras. 1 and 4 and 13 of the Convention in relation to the proceedings
leading to an extension of his detention in a psychiatric hospital.
B. The proceedings
5. The application was introduced on 12 October 1993 and registered
on 5 April 1994.
6. On 5 July 1994 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. The Government's observations were submitted on 5 October 1994.
The applicant replied on 3 February 1995 after an extension of the
time-limit fixed for that purpose.
8. On 15 May 1996 the Commission declared the application
admissible.
9. The text of the Commission's decision on admissibility was sent
to the parties on 29 May 1996 and they were invited to submit such
further information or observations on the merits as they wished.
Neither party availed itself of this possibility.
10. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
11. The present Report has been drawn up by the Commission
(Second Chamber) in pursuance of Article 31 of the Convention and after
deliberations and votes, the following members being present:
Mrs. G.H. THUNE, President
MM. J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
12. The text of this Report was adopted on 2 July 1997 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
13. The purpose of the Report, pursuant to Article 31 of the
Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
14. The Commission's decision on the admissibility of the application
is annexed hereto.
15. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
16. On 21 June 1990 the Regional Court (Arrondissementsrechtbank) of
Groningen convicted the applicant of repeated manslaughter and
sentenced him to five years' imprisonment (with deduction of detention
on remand) and to placement at the disposal of the Government
(terbeschikkingstelling) with committal to a psychiatric institution.
The period of placement at such an institution began on 3 July 1991 and
expired two years later, on 3 July 1993.
17. According to Section 509o para. 1 of the Dutch Code of Criminal
Procedure (Wetboek van Strafvordering, hereinafter referred to as
"CCP"), a request for the extension of such placement shall be made by
the Public Prosecutor not later than one month before the expiry of the
previous period of placement. The last day for making such a request
in the present case was therefore 3 June 1993.
18. By letter of 17 May 1993, which the applicant received on
19 May 1993, he was informed by the Public Prosecutor that the latter
had requested the extension of the applicant's placement at the
disposal of the Government on 17 May 1993. The applicant was also
informed that he could be represented by counsel. It appears, however,
that the request prepared by the Public Prosecutor, which was indeed
dated 17 May 1993, did not arrive at that time at the registry of the
Regional Court of Groningen but was, apparently by mistake, placed in
the archives of the Court.
19. About three and a half months after receiving the letter of the
Public Prosecutor, the applicant alerted the staff in the psychiatric
institution to the fact that he had not been further informed as
regards the extension of his placement. The request was then found in
the archives of the Court on 7 September 1993. It was received at the
Court's registry on 8 September 1993.
20. In the proceedings regarding the extension, the applicant asked
the Regional Court to declare the Public Prosecutor's request
inadmissible on the ground that both Section 509o para. 1 CCP and the
European Convention on Human Rights had been violated.
21. The Regional Court examined the application on 15 September 1993.
In its decision, which was given on 23 September 1993, the Court
rejected the applicant's objections and extended his placement at the
disposal of the Government for another year. Pursuant to Section
509v CCP no appeal lies against this decision, as it concerned a first
extension not exceeding one year.
22. In its decision the Regional Court stated as follows:
[Translation]
"3. It appears from the contents of the relevant documents that
the request for an extension of the placement at the disposal of
the Government should have been submitted not later than
3 June 1993. According to the stamp indicating the receipt, the
request was not received and registered at the registry of this
Court until 8 September 1993.
4. The Code of Criminal Procedure does not indicate any
consequences of a failure to observe the time-limit contained in
Section 509o para. 1. However, in view of the wording of the
provision and its legal history, the Court is of the opinion that
failure to observe the said time-limit should in principle result
in the inadmissibility of the Public Prosecutor's application.
This conclusion can be drawn from the fact that failure to
respect this procedural provision is not in conformity with a
good administration of justice.
5. However, in some cases special circumstances might exist
which would justify a departure from that principle. The Court
considers that such special circumstances are present in this
case.
6. The provision referred to has a specific procedural
significance and aims at letting the judge examine periodically
whether an extension of the judicial measure is necessary.
Indirectly the provision also protects the interests of the
person placed at the Government's disposal since it ensures that
this person will know in good time whether or not there will be
a request for an extension. In the present case the interests of
that person were not prejudiced since the request was notified
to him in person on 19 May 1993. He has therefore been able to
get legal assistance in time and he has not been, for an
unnecessarily long period, kept in doubt as to the intentions of
the Public Prosecutor.
7. It remains to be examined whether the violation of the
time-limit has prejudiced a fair procedure. When considering this
question, it is of importance, inter alia, that the placement at
the disposal of the Government remains in force as long as there
is no final decision on the request. Although there has been a
violation of the time-limit for the extension, it does not follow
that the deprivation of liberty is unlawful.
8. In substance, there has not been a failure to respect the
time-limit within which the request must be made. The Public
Prosecutor prepared a request for an extension in time and he
communicated it two days later to the person placed at the
Government's disposal.
Because of circumstances, which have been further explained in
the written memorial of the Public Prosecutor, it was not
possible, however, for the Court to decide earlier on this
request which had been prepared in time. It is not possible to
consider this a flagrant violation of the procedural provisions.
The Public Prosecutor may only be reproached for the fact that
the request did not arrive at the registry of this Court in time,
which means that the request was only formally submitted too
late.
9. Moreover an evaluation must be made of different interests
in the sense that the interest of the person placed at the
Government's disposal in having the violated legal provision
respected must be weighed against the general interest which
might be harmed by a decision which would lead to the termination
of the placement at the disposal of the Government.
10. The Court considers that, on account of the following
circumstances, the last-mentioned interest must prevail.
The measure was originally imposed because of two acts of
manslaughter. The above-mentioned opinions of the Institution
quite clearly refer to the necessity of extending this coercive
measure. The risk of further criminal behaviour is considered
still to be present to the same degree, since the person
concerned can still not appreciate the vulnerability of his
personality. The supplementary opinion regarding the extension
repeats this conclusion and also mentions an incident in which
violence was used between the person concerned and another person
in the Institution. On this occasion the person concerned lost
his senses for a short while and it was necessary to isolate him
for some time in his room."
B. Relevant domestic law and practice
23. Placement at the disposal of the Government may be imposed on the
accused who, at the time of committing an offence, suffered from a
mental deficiency or derangement (Section 37a of the Criminal Code).
A judge may further decide that a person placed at the disposal of the
Government shall receive treatment at the Government's expense
(verpleging, Section 37b Criminal Code).
24. The provisions relating to the extension of the placement at the
disposal of the Government are laid down in Sections 509o to 509x CCP.
25. In accordance with Section 509o para. 1 CCP, the request to
extend the placement should be submitted not earlier than two months
and not later than one month before the date on which the placement
expires. The date on which the request has been received by the
registry of the Regional Court concerned is considered as the date of
submission. The request must be accompanied by a recommendation which
the institution in which the patient is being treated has prepared not
more than one month before the request was submitted. In accordance
with the provisions of Section 509o para. 6, the person concerned must
immediately be given a copy of the request.
26. According to Section 509s CCP, the Regional Court must
immediately set a date for the examination of the case and the person
concerned must be informed promptly of this date. In accordance with
Section 509t CCP, the Regional Court must give its decision within
two months after the request was submitted. According to Section 509q
CCP, the placement remains in force until the decision on the request
to extend it has become irrevocable. If the request is granted later
than the date on which the placement would have expired had no request
to extend it been submitted, the placement is nonetheless considered
to have been extended as from that date.
27. The CCP does not impose any sanction on the exceeding of the
time-limits laid down in Sections 509o and 509t. In practice, the
lawfulness of the placement after expiry of its statutory period is not
affected pursuant to a Supreme Court judgment of 14 June 1974
(Nederlandse Jurisprudentie, NJ, 1974, no. 436). In this case the
Supreme Court took the view that a placement remained lawful even if
the Regional Court exceeded the two months time-limit of Section 509t,
which was at that time provided for in a differently numbered
provision. In a later judgment (29 September 1989, NJ 1990, no. 2), the
Supreme Court held that only in certain circumstances would the State
be obliged to terminate the placement after its statutory period had
expired and no decision as to its extension had been taken. In order
to ascertain whether such an obligation existed, the court should have
regard to the extent to which the statutory time-limit had been
exceeded, the reasons for exceeding the time-limit as well as the
personal and social interests at stake.
28. As the case-law developed, the opinion that the time-limit
referred to in Section 509t CCP is not of an absolute nature has also
been found to apply to the time-limit now enacted in Section 509o
para. 1 CCP. On 19 February 1993, in a case where the time-limits
provided for in Section 509o para. 1 CCP had been exceeded, the Supreme
Court found that in light of Section 509q CCP the placement had
remained lawful despite the fact that its extension had not been
requested in time (NJ 1993, no. 302). In this case the Public
Prosecutor had lodged the request for extension on 18 August whereas
the statutory period of the placement expired on 15 September thus
requiring a request for an extension to be made before 15 August.
29. According to Section 509v CCP, both the Public Prosecutor and the
person concerned may lodge an appeal with the Court of Appeal
(Gerechtshof) of Arnhem within two weeks of the service of the judgment
given by the Regional Court. However, this provision rules out an
appeal in regard to the first decision to extend the placement for a
period of one year.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
30. The Commission has declared admissible the applicant's complaints
that upon expiry of the statutory period of his placement at the
disposal of the Government his detention had become unlawful, that the
decision to extend his placement was not given in a procedure
prescribed by law, that he did not receive a speedy review of the
lawfulness of his detention and that he was unable to appeal against
the decision to extend his detention.
B. Points at issue
31. The Commission must accordingly examine:
- whether there has been a violation of Article 5 para. 1
(Art. 5-1) of the Convention;
- whether there has been a violation of Article 5 para. 4
(Art. 5-4) of the Convention in that the lawfulness of the
applicant's detention was not reviewed speedily; and
- whether there has been a violation of Article 5 para. 4
(Art. 5-4) and/or Article 13 (Art. 13) of the Convention in that
the applicant was unable to appeal against the decision to extend
his detention.
C. As regards Article 5 para. 1 (Art. 5-1) of the Convention
32. Article 5 para. 1, (Art. 5-1) insofar as relevant, 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 of unsound mind
... ;
..."
33. The applicant argues that the Public Prosecutor's request to
extend his placement at the disposal of the Government should have been
declared inadmissible by the Regional Court of Groningen for having
been lodged out of time without there being any circumstances which
could have justified the delay. Had the request been declared
inadmissible, this would have entailed the immediate termination of the
placement in view of the fact that its statutory period had already
expired, thus rendering the detention unlawful.
34. The Government submit that the fact that a time-limit has been
exceeded should not always, regardless of the circumstances of the
case, lead to the Public Prosecutor's request being declared
inadmissible and the termination of a detention. According to Dutch
case-law regarding Section 509q CCP a placement does not become
unlawful as a result of the decision to extend it being given after the
date on which the placement was due to expire (see paras. 26-28 above).
Only in certain circumstances does the State have an obligation to
terminate a placement when its statutory period has expired. It appears
from the case-law that in assessing whether the time-limit pursuant to
Section 509o para. 1 CCP has been exceeded, the court always examines
the special circumstances involved. In addition, it considers the
extent to which the interests of the individual concerned have been
violated. The provisions of the said section are designed to ensure
that the individual concerned should be informed of the Public
Prosecutor's intentions early enough to be able to seek the assistance
of counsel. If the time-limit has been exceeded but the individual
concerned has nonetheless been able to prepare himself adequately for
the hearing, the Public Prosecutor's request is generally not declared
inadmissible. According to the Government, the Groningen Regional Court
acted in conformity with this case-law in the present case.
35. The Commission notes in the first place that the applicant was
convicted by judgment of the Groningen Regional Court of 21 June 1990.
Article 5 para. 1 (a) (Art. 5-1-a) of the Convention therefore applies.
Furthermore, the placement at the disposal of the Government with a
view to treatment by reason of defective mental development or mental
illness is equivalent to detention of a person of unsound mind (cf.
No. 6852/74, Dec. 5.12.78, D.R. 15, p. 5). Accordingly, the applicant's
detention also falls to be considered under Article 5 para. 1 (e)
(Art. 5-1-e) of the Convention (Eur. Court HR, X. v. the United Kingdom
judgment of 5 November 1981, Series A no. 46, p. 17, para. 39).
36. The Commission recalls that on the question whether detention is
"lawful", including whether it complies with "a procedure prescribed
by law", as required by Article 5 para. 1 (Art. 5-1), the Convention
refers back to national law and lays down the obligation to conform to
the substantive and procedural rules thereof. However, it requires in
addition that any deprivation of liberty should be consistent with the
purposes of Article 5 (Art. 5), namely to protect individuals from
arbitrariness (Eur. Court HR, Wassink v. the Netherlands judgment of
27 September 1990, Series A no. 185-A, p. 11, para. 24). Furthermore,
the Commission is of the opinion that where deprivation of liberty is
concerned it is equally important that general principles of legal
certainty be satisfied.
37. The Commission observes that the Code of Criminal Procedure does
not indicate a legal consequence of exceeding the time-limits laid down
in Sections 509o or 509t CCP. It appears from domestic case-law that
even if a request for an extension has been lodged out of time this
does not automatically render the placement after expiry of its
statutory period unlawful (see para. 27 above). The Commission notes,
moreover, that according to Section 509q CCP the placement at the
disposal of the Government shall continue as long as no final decision
has been taken on the Public Prosecutor's request for an extension.
38. The Commission finds it appropriate to differentiate between the
situation where a request for an extension has been lodged outside the
time-limit of Section 509o but before the date on which the statutory
period of the placement expired, and the situation in the present case
where no request had been submitted at the time when the statutory
period expired. The Commission considers that Section 509q would seem
to presuppose that a request for an extension has been submitted before
expiry of the statutory period. It would refer in this respect to its
reasoning in an earlier case (No. 22840/93, Van Eis v. the Netherlands,
Dec. 2 March 1994, unpublished) where the decision to extend the
placement was taken two weeks after expiry of its statutory period.
39. In the present case, however, there was a period of two months
and twenty days (from 3 July 1993 to 23 September 1993) during which
there existed no court decision as the basis of the applicant's
detention, and a period of more than two months (from 3 July 1993 to
8 September 1993) during which there was not even a request by the
Public Prosecutor to prolong the detention. In this regard the
Commission notes the marked difference between the facts of the present
case and those of the Winterwerp case, where there was an interval of
only two weeks between the expiry of the statutory period and the
making of the succeeding renewal order. Furthermore, and contrary to
the present case, the Public Prosecutor had submitted a valid request
for the prolongation of Mr Winterwerp's detention at a time when its
statutory period had not yet expired (Eur. Court HR, Winterwerp v. the
Netherlands judgment of 24 October 1979, Series A no. 33, p. 21,
para. 49).
40. The Commission does not question that there were good reasons for
prolonging the applicant's detention and accepts that it was due to a
clerical mistake that the Public Prosecutor's request was not submitted
to the registry of the Regional Court. Nevertheless, the Commission,
having regard to the principles of legal certainty mentioned above,
considers that in the circumstances of the present case the applicant's
detention from 3 July 1993 to 8 September 1993 cannot be said to have
been lawful in the sense of Article 5 para. 1 (Art. 5-1) of the
Convention. It is similarly of the opinion that the decision of 23
September 1993 to extend the applicant's placement at the disposal of
the Government was not taken in accordance with a procedure prescribed
by law.
CONCLUSION
41. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention.
D. As to Article 5 para. 4 (Art. 5-4) of the Convention (speedy
review)
42. Article 5 para. 4 (Art. 5-4) of the Convention provides as
follows:
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
43. The applicant complains that while he had been informed on 19 May
1993 that an extension of his detention would be sought no decision was
taken until 23 September 1993.
44. The Government submit that, although a procedural error had been
made, once the request had been received by the registry of the
Regional Court a decision was made within two weeks.
45. The Commission recalls that the legal system described above
(paras. 24-25) has previously been found to amount to an "automatic
periodic review of a judicial character" (Koendjbiharie v. the
Netherlands judgment of 25 October 1990, Series A no. 185-B, p. 40,
para. 27).
46. The Commission notes that the applicant had been informed that
the request for the extension of his placement had been lodged on 17
May 1993 and he could thus reasonably expect a decision to be taken
speedily. However, as a result of a mistake the request for an
extension was not submitted to the registry of the Regional Court until
8 September 1993 and the Regional Court did not decide on the request
until 23 September 1993. It does not appear that the staff in the
psychiatric hospital undertook any action despite the fact that they
must have been aware of the date on which the applicant's placement was
due to expire.
47. In the view of the Commission, however, these circumstances only
enhance the conclusion that there has been a violation of Article 5
para. 1 (Art. 5-1) (para. 41). As regards the question whether there
was a speedy decision under Article 5 para. 4 (Art. 5-4), account can
only be taken of the period after the request for prolongation had been
submitted to the Regional Court, i.e. 8 September 1993. As the Regional
Court took its decision already on 23 September 1993, the Commission
considers that the review of the applicant's detention took place
speedily.
CONCLUSION
48. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the applicant's right to a speedy review of his detention.
E. As regards Article 5 para. 4 (Art. 5-4) and Article 13 (Art. 13)
of the Convention (absence of a right to appeal)
49. Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
50. The applicant complains that no appeal was available against the
decision of 23 September 1993. He submits that no valid reasons exist
for denying an appeal against the first decision to extend the
placement for a period of one year, since such appeal proceedings
rarely take more than four months and the detention continues in any
event until the appeal proceedings have come to an end.
51. The Government argue that appeal proceedings usually take
approximately one year. Thus, by lodging an appeal against a decision
to extend the placement by one year, a person could, in effect, avoid
remaining in care in the final year.
52. The Commission considers that as regards legal remedies in
matters of detention Article 5 para. 4 (Art. 5-4) is the lex specialis
and Article 13 (Art. 13) the lex generalis. It is therefore sufficient
to examine the present case in regard to Article 5 para. 4 (Art. 5-4).
In this regard the Commission notes that the decision of 23 September
1993 to extend the applicant's detention was given by a court in an
adversarial procedure. This means, according to the applicable case-law
(see e.g. Eur. Court HR, De Wilde, Ooms and Versyp judgment of 18 June
1971, Series A no. 12, p. 40, para. 76) that the judicial control
required by Article 5 para. 4 (Art. 5-4) was incorporated in the
original judicial decision and that no further remedy was required
under Article 5 para. 4 (Art. 5-4).
CONCLUSION
53. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 4 (Art. 5-4) or Article 13 (Art. 13) of
the Convention in respect of the absence of a right to appeal.
F. Recapitulation
54. The Commission concludes, unanimously, that there has been a
violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 41)
55. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 4 (Art. 5-4) of the Convention in respect
of the applicant's right to a speedy review of his detention (para.
48).
56. The Commission concludes, unanimously, that there has been no
violation of Article 5 para. 4 (Art. 5-4) or Article 13 (Art. 13) of
the Convention in respect of the absence of a right to appeal
(para. 53).
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber