Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 15672/89

P.J.B.

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 10 February 1993)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-24). . . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 17-23) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law

(para. 24) . . . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 25-50) . . . . . . . . . . . . . . . . . . . . . . . 5

A. Complaints declared admissible (para. 25). . . . . . . . 5

B. Points at issue (para. 26) . . . . . . . . . . . . . . . 5

C. Article 5 para. 4 of the Convention

(paras. 27-41) . . . . . . . . . . . . . . . . . . . . . 5

D. Article 5 para. 1 of the Convention

(paras. 42-49) . . . . . . . . . . . . . . . . . . . . . 6

E. Recapitulation

(para. 50) . . . . . . . . . . . . . . . . . . . . . . . 8

APPENDIX I : HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . 9

APPENDIX II : DECISION ON THE ADMISSIBILITY . . . . . . . . . . .10

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 a Dutch citizen, born in 1961 and was, when he

introduced the application, detained in a mental hospital in Wolfheze,

the Netherlands. Before the Commission the applicant is represented by

Mrs. G.E.M. Later, a lawyer practising in The Hague.

3 The application is directed against the Netherlands. The

respondent Government are represented by their Agent,

Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign

Affairs.

4 The case concerns the extension of a judicial order for the

applicant's committal to a mental hospital. It raises issues under

Article 5 paras. 1 and 4 of the Convention.

B. The proceedings

5 The application was introduced on 23 August 1989 and registered

on 23 October 1989. After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 7 November 1990. It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

6 The Government's observations were submitted on 4 April 1991.

7 After having consulted the parties the Commission decided on

8 April 1991 to refer the application to the Second Chamber of the

Commission.

8 The applicant's observations in reply were submitted on

10 June 1991.

9 On 2 September 1992 the Commission declared the application

admissible.

10 On 14 September 1992 the parties were offered the possibility to

submit additional observations on the application. They did not submit

any such observations.

11 After having declared the case admissible, the Commission, acting

in accordance with Article 28 para. 1 (b) of the Convention, placed

itself at the disposal of the parties with a view to securing a

friendly settlement. In the light of the parties' reactions the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C. The present Report

12 The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ RUIZ

J.-C. GEUS

13 The text of this Report was adopted by the Commission (Second

Chamber) on 10 February 1993 and is now transmitted to the Committee

of Ministers of the Council of Europe, in accordance with

Article 31 para. 2 of the Convention.

14 The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is:

a) to establish the facts, and

b) to state an opinion as to whether the facts

found disclose a breach by the State concerned

of its obligations under the Convention.

15 A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

16 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

17 On 31 July 1987 the Regional Court (Arrondissementsrechtbank) of

Arnhem ordered the applicant's detention in a mental hospital for a

period of one year. The judicial order (rechterlijke machtiging) would

expire on 18 June 1988. On 8 June 1988 the public prosecutor submitted

a request to the Regional Court of Arnhem for an extension of this

order. This request was accompanied by a medical certificate dated

1 June 1988 by the applicant's treating psychiatrist, recommending an

extension of the judicial order.

18 On 25 July 1988 the applicant, who was represented by a lawyer,

and his treating psychiatrist were heard by the investigating judge

(rechter-commissaris) on which occasion the applicant's lawyer

requested a second medical opinion.

19 By interlocutory decision of 4 August 1988 the Regional Court

decided to appoint a second psychiatrist and to invite him to submit

a psychiatric report on the applicant before 29 August 1988. This

psychiatrist submitted his report, recommending an extension of the

judicial authorisation, on 16 August. The report was subsequently

transmitted to the applicant's lawyer.

20 On 29 August 1988 the applicant, who was represented by his

lawyer, was heard again on the basis of the second medical report.

21 On 12 September 1988 the Regional Court extended the judicial

order by one year as from 18 June 1988.

22 The applicant's appeal to the Supreme Court (Hoge Raad) was

rejected on 24 February 1989. The Supreme Court rejected the

applicant's complaint under Article 5 paras. 1 (e) and 4 of the

Convention that he had not been heard within a reasonable time after

the submission of the request to extend his detention in a mental

hospital. The Supreme Court held that in cases of this kind

Article 5 para. 4 does not apply as the proceedings at issue concern

an automatic periodical review of a judicial detention order and are

not proceedings instituted by the applicant, challenging his detention,

a possibility of which he could avail himself at any time. The Supreme

Court agreed with the Regional Court that the public prosecutor's

request had not been dealt with as expeditiously as normally desirable,

but considered that the total length of the proceedings was not

unreasonably long in view of the fact that the applicant himself had

requested a second medical opinion, a request which had been granted.

23 The Supreme Court also upheld the Regional Court's opinion that

the mere lapse of time between the submission of the public

prosecutor's request to extend the judicial order and the hearing

before the Regional Court does not make the public prosecutor's request

inadmissible.

B. Relevant domestic law

24 Article 24 of the Mentally Ill Persons Act (Krankzinnigenwet)

provides, inter alia:

"No more than fourteen and at least eight days before the

expiry of the period for which the Regional Court has

ordered someone's detention in a mental hospital, a request

can be submitted to the Regional Court to extend this

period by a maximum of one year (...)

The detainee in respect of whom an extension of the

judicial order for detention is requested shall remain in

the mental hospital pending the examination by the Regional

Court. (...)"

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

25 The Commission has declared admissible the applicant's complaints

under Article 5 paras. 1 and 4 (Art. 5-1,4) of the Convention that his

detention in a mental hospital between 18 June 1988, when the initial

judicial order expired, and 12 September 1988, when the Regional Court

decided to prolong his detention by one year as from 18 June 1988, was

not lawful and not ordered in accordance with a procedure prescribed

by law and that it took the Regional Court three months to take a

decision on the request to extend the judicial order for his detention.

B. Points at issue

26 The following are the points at issue in the present application:

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention;

- whether there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention.

C. As regards Article 5 para. 4 (Art. 5-4) of the Convention

27 Article 5 para. 4 (Art. 5-4) of the Convention provides as

follows:

"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."

28 The Government submit that at first sight, the extension of a

hospital order in respect of persons placed at the Government's

disposal within the meaning of the Netherlands Penal Code and the

extension of a judicial order within the meaning of Article 24 of the

Mentally Ill Persons Act are sufficiently similar to justify the

conclusion that the latter also falls under Article 5 para. 4

(Art. 5-4). The Government, however, add that the Supreme Court did

not consider Article 5 para. 4 (Art. 5-4) applicable to the present

proceedings as these concern an automatic review at regular intervals

by the judicial authorities to ascertain whether the conditions

pertaining to this deprivation of liberty continue to be valid.

29 The Government also state that in any event a detainee in a

mental hospital can, at any point in time, request his discharge under

Article 29 of the Mentally Ill Persons Act.

30 If Article 5 para. 4 (Art. 5-4) of the Convention is applicable

to the proceedings at issue, the Government are of the opinion that

neither the fact that the time between the public prosecutor's request

and the first hearing on this request was longer than would generally

be considered desirable nor the duration of the procedure as a whole

is sufficient to justify the conclusion that the Regional Court did not

come to a speedy decision.

31 The applicant considers that Article 5 para. 4 (Art. 5-4) is

applicable to the present proceedings and argues that the decision on

the lawfulness of his detention was not taken speedily as required by

this provision. In the applicant's view the Government have provided

no justification for the delays which occurred in the proceedings on

the prolongation of the judicial order.

32 The Commission first notes that the issue regarding the

prolongation of the applicant's detention in the mental hospital did

not arise as a result of a request submitted by the applicant but

because the public prosecutor had asked for the detention to be

prolonged.

33 The question arises as to whether Article 5 para. 4 (Art. 5-4)

of the Convention is applicable to the present situation, since that

provision entitles a detained person to take proceedings in order to

have the lawfulness of his detention decided speedily by a court.

34 In this respect, the Commission notes that the European Court of

Human Rights has considered Article 5 para. 4 (Art. 5-4) of the

Convention also to be applicable to an automatic periodic review of a

person's detention (cf. above-mentioned Koendjbiharie judgment,

para. 27, and Keus judgment, para. 24). The Commission considers that

the same protection should be given to a detained person in

circumstances such as in the present case, where the review of the

detention is undertaken on the initiative of the public prosecutor and

where the detained person remains in detention until that review has

been terminated.

35 It follows that the Regional Court of Arnhem was under an

obligation, according to Article 5 para. 4 (Art. 5-4) of the

Convention, to decide speedily on the request for the prolongation of

the applicant's detention.

36 The Commission notes that the applicant's committal to the

hospital under the previous judicial order expired on 18 June 1988 and

that, ten days earlier, i.e. on 8 June 1988, the public prosecutor had

submitted a request for prolongation.

37 It is true that under Article 24 of the Mentally Ill Persons Act

the detained person in respect of whom an extension of a judicial order

for detention is requested shall remain in the mental hospital pending

the examination by the Regional Court. Nevertheless, the fact that the

previous order was soon to expire should have been a special reason for

the court to examine the request for prolongation as soon as possible.

38 It appears, however, that the investigating judge did not hear

the applicant and his psychiatrist until 25 July 1988, i.e. nearly

seven weeks after the public prosecutor's request had been submitted.

No satisfactory explanation has been provided for this delay, and the

respondent Government have admitted that the delay exceeded what could

normally be considered desirable. The Commission is of the opinion

that, in view of this initial delay in dealing with the public

prosecutor's request, the decision to prolong the applicant's detention

cannot be considered to have been taken speedily.

39 The further period which elapsed from 25 July 1988, the date of

the first hearing, to 12 September 1988, the date of the Regional

Court's decision, was essentially due to the fact that a psychiatrist

was asked to prepare a report on the applicant. This new examination

was made at the applicant's own request, and the delay which resulted

therefrom is therefore essentially to be attributed to him.

40 In view of the foregoing, the Commission is of the opinion that

there was unnecessary delay in deciding on the request for the

prolongation of the applicant's detention and that the Regional Court's

decision was not taken speedily as required by Article 5 para. 4

(Art. 5-4) of the Convention.

Conclusion

41 The Commission concludes unanimously that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

D. As regards Article 5 para. 1 (Art. 5-1) of the Convention

42 The relevant part of Article 5 para. 1 (Art. 5-1) of the

Convention reads 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:

(...)

e. the lawful detention of persons (...) of unsound mind,

(...)"

43 The Government are of the opinion that the applicant's detention

between 18 June 1988 and 12 September 1988 in a mental hospital was in

accordance with a procedure prescribed by law. Article 24 of the

Mentally Ill Persons Act provides, inter alia, that a detainee in

respect of whom the extension of a judicial order to detain him in a

mental hospital has been requested, shall remain in detention pending

the decision of the Regional Court.

44 The Government state that, contrary to the legislation governing

hospital orders in respect of persons placed at the Government's

disposal within the meaning of the Netherlands Penal Code

(terbeschikkingstelling), the Mentally Ill Persons Act does not specify

any time limit within which the Regional Court must reach a decision,

but that an extension may be granted for a maximum of one year,

commencing on the expiry date of the previous judicial order and not

on the day on which this extension is granted by the Regional Court.

45 The applicant does not dispute the Government's observations in

respect of the Mentally Ill Persons Act. He is, however, of the

opinion that Article 5 para. 1 (e) (Art. 5-1-e) of the Convention does

not allow for a detention period as long as the one at issue, without

the detention being authorised by a court.

46 The Commission notes that the complaint made in regard to

Article 5 para. 1 (Art. 5-1) of the Convention is that, after the

period of committal to a mental hospital had expired on 18 June 1988,

the extension of that period was not ordered until 12 September 1988,

which raises the question as to whether the applicant's detention

between those two dates was decided in accordance with a procedure

prescribed by law.

47 It should be noted, however, that the delay in deciding on the

public prosecutor's application for a prolongation of the applicant's

detention is also the basis for the applicant's complaint under

Article 5 para. 4 (Art. 5-4) of the Convention and that the Commission

has found a violation of that provision (see para. 41 above).

48 In these circumstances, the Commission does not find it necessary

to make a separate examination of the complaint under Article 5 para. 1

(Art. 5-1) of the Convention (cf. Eur. Court H.R., Koendjbiharie

judgment of 25 October 1990, Series A no. 185-B, para. 25, and Keus

judgment of the same date, Series A no. 185-C, para. 20).

Conclusion

49 The Commission concludes, unanimously that no separate issue

arises under Article 5 para. 1 (Art. 5-1) of the Convention.

E. Recapitulation

50 The Commission concludes:

- unanimously that there has been a violation of Article 5 para. 4

(Art. 5-4) of the Convention (para. 42);

- unanimously that no separate issue arises under Article 5 para. 1

(Art. 5-1) of the Convention (para. 50).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_______________________________________________________________________

23 August 1989 Introduction of application

23 October 1989 Registration of application

Examination of admissibility

7 November 1990 Commission's decision to invite

the Government to submit their

observations on the

admissibility and merits of the

application.

4 April 1991 Government's observations.

8 April 1991 Commission's decision to refer

the application to the Second

Chamber.

10 June 1991 Applicant's observations in

reply.

2 September 1992 Commission's decision to declare

the application admissible in

respect of the applicant's

complaints under Article 5

paras. 1 and 4 of the

Convention.

Examination of the merits

14 September 1992 Parties invited to submit

further observations on the

merits.

10 February 1993 Commission's deliberations on

the merits, final vote and

adoption of the Report.

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P.J.B. v. the NETHERLANDS

P.J.B. v. the NETHERLANDS

LEXI