Lexploria

Application No. 12889/87

Robbert SMIET

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 6 December 1990)

TABLE OF CONTENTS

PAGE

I. INTRODUCTION

(paras. 1-12) .................................... 1-2

A. The application

(paras. 2-3) ................................... 1

B. The proceedings

(paras. 4-7) ................................... 1

C. The present Report

(paras. 8-12) .................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 13-30) .................................... 3-5

A. The particular circumstances of the case

(paras. 13-20) ................................. 3

B. Relevant domestic law and practice

(paras. 21-30) ................................. 4-5

III. OPINION OF THE COMMISSION

(paras. 31-60) .................................... 6-10

A. Complaints declared admissible

(para. 31) ..................................... 6

B. Points at issue

(para. 32) ..................................... 6

C. Article 5 para. 1 of the Convention

(paras. 33-43) ................................. 6-8

Conclusion

(para. 43) ..................................... 8

D. Article 5 para. 4 of the Convention

(paras. 44-47) ................................. 8-9

Conclusion

(para. 47) ..................................... 9

E. Article 5 para. 5 of the Convention

(paras. 48-53) ................................. 9

Conclusion

(para. 53) ..................................... 9

F. Article 6 para. 1 of the Convention

(paras. 54-58) ................................. 9-10

Conclusion

(para. 58) ..................................... 10

G. Recapitulation

(para. 59) ..................................... 10

DISSENTING OPINION of Mrs. G.H. THUNE

and Sir Basil Hall ....................................... 11

APPENDIX I : HISTORY OF THE PROCEEDINGS ............. 12

APPENDIX II : DECISION ON THE ADMISSIBILITY .......... 13-17

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 1951 and currently

detained in a psychiatric hospital in Eindhoven, the Netherlands. In

the proceedings before the Commission he is represented by Ms. G.E.M.

Later, a lawyer practising in The Hague.

The application is directed against the Netherlands whose

Government are represented by their Agent, Ms. Dorothea S. van

Heukelom, of the Netherlands Ministry of Foreign Affairs.

3. The applicant complains under Article 5 para. 1 of the

Convention that the prolongation of his detention in a psychiatric

hospital was not decided within the time-limit prescribed by Dutch

law; and under Article 5 para. 4 of the Convention that the Supreme

Court did not examine the legality of his detention. He further

claims that he is entitled to compensation under Article 5 para. 5 of

the Convention. Under Article 6 para. 1 of the Convention the

applicant finally complains that he did not have a fair hearing before

the Supreme Court.

B. The proceedings

4. The application was introduced on 24 April 1987 and registered

on 2 May 1987.

5. On 13 October 1987 the Commission decided to give notice of

the application to the respondent Government and to invite them to

submit observations in writing on the admissibility and merits of the

application.

The Government's observations were submitted on 8 January

1988. After an extension of the time-limit, the applicant submitted

his reply on 30 March 1988.

6. On 10 July 1989 the Commission declared the application

admissible. The text of this decision was communicated on 25 August

1989 to the parties who were invited to submit any additional

observations or further evidence which they wished to put before the

Commission.

7. After declaring 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 of the case. 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

8. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

9. The text of this Report was adopted on 6 December 1990 and is

now transmitted to the Committee of Ministers of the Council of

Europe, in accordance with Article 31 para. 2 of the Convention.

10. 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.

11. 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.

12. The full text of the parties' submissions and the documents

concerning the case are held in the archives of the Commission and are

available to the Committee of Ministers if required.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

13. On 18 August 1986 the applicant was detained by order of the

Burgomaster of Eindhoven, issued on the basis of Section 35b of the

Mentally Ill Persons Act (Krankzinnigenwet; see below Relevant

domestic law and practice), and subsequently, he was taken to a

psychiatric hospital. The order was based on a certificate of a

psychiatrist drawn up on 18 August, in which it was stated that the

applicant was paranoid and a danger to himself, to others or to public

order.

14. On 20 August 1986 the Public Prosecutor of 's-Hertogenbosch

made a request to the President of the Regional Court

(Arrondissementsrechtbank) of 's-Hertogenbosch, that the applicant's

detention (inbewaringstelling) be prolonged.

15. On 21 August 1986 the Regional Court received the Public

Prosecutor's request and the relevant documents.

16. On 26 August 1986 the Acting President of the Regional Court

heard the applicant, his psychiatrist Dr. Spruyt and another

person. The hearing took place in the presence of the applicant's

lawyer. Dr. Spruyt stated, inter alia, that the applicant had

threatened civil servants with a knife, that he sometimes was

psychotic, that the psychosis could be controlled by medication, but

that as a result of drugs he could become a paranoid schizophrenic.

The applicant's lawyer argued that the time-limit within which the

President should decide on the Public Prosecutor's request had expired

and that the request should therefore be rejected. The applicant

pointed out that he had agreed to stay in a psychiatric hospital

voluntarily until he had found accommodation.

17. On 27 August 1986 the Acting President decided that the

applicant's detention should continue.

18. On 29 August 1986 the applicant filed an appeal with the

Supreme Court (Hoge Raad). He complained that, even counting from the

day on which the Regional Court had received the Public Prosecutor's

request, the Acting President had not observed the time-limit, as

required under the Mentally Ill Persons Act. Furthermore, he claimed

that there were not sufficient reasons to conclude that the detention

was necessary in order to avert immediate danger to himself or other

persons, since these reasons were mainly based on events in the past.

Moreover, detention was not necessary because he had agreed to stay in

the hospital voluntarily. The applicant also requested the Supreme

Court to decide on his appeal within three weeks (see below Relevant

domestic law and practice).

19. The Government submitted that on 15 September 1986 the

President of the Regional Court had authorised the applicant's placement

in a psychiatric hospital. The applicant submitted that it may not be

concluded from this that the authorisation took effect on 15 September

1986.

20. On 14 November 1986 the Supreme Court declared the appeal

inadmissible on the ground that the maximum period of three weeks had

already passed and that the appeal was no longer of any interest to

the applicant.

B. Relevant domestic law and practice

21. The detention of persons of unsound mind in the Netherlands is

governed by the "Act of 27 April 1884, regulating the State

supervision of Mentally Ill Persons" (Wet van den 27sten April 1884

tot regeling van het Staatstoezicht op krankzinnigen), commonly known

as the Mentally Ill Persons Act (Krankzinnigenwet).

22. The relevant provisions in respect of the present application

are Sections 35b-35j.

23. In urgent cases, where a person is seriously suspected to be a

danger to himself, to others or to public order because of mental

illness, the Burgomaster of the municipality where this person

resides, has the power to order the compulsory admission

(inbewaringstelling) of this person to a psychiatric hospital (Section

35b).

24. The Burgomaster is obliged to seek the prior opinion of a

psychiatrist or, should that not be possible, another medical

practitioner (Section 35c). Once he has issued an order to detain, he

must immediately inform the Public Prosecutor and send him the medical

opinions on which the order was based (Section 35e). The Mentally Ill

Persons Act does not lay down a specific time-limit for the

Burgomaster to transmit these documents to the Public Prosecutor's

Office. The Supreme Court has stated that, if the Burgomaster delays

the forwarding of these documents, this does not eventually preclude

the President of the Regional Court from handing down a decision on

the Public Prosecutor's application for a continuation of the

detention (see decision of 24 April 1987, N.J. [Nederlandse

Jurisprudentie] 1987 Nr. 629 and below para. 25).

25. The Public Prosecutor is required to transmit the medical

opinions on which the order was based not later than the following day

which is not a Saturday, Sunday or a public holiday, to the President

of the Regional Court with, where appropriate, an application for a

continuation of the detention (Section 35i para. 1).

26. Section 35i para. 1 of the Mentally Ill Persons Act further

states that the President shall decide within three days whether the

detention shall continue. Before taking this decision the President

shall hear the detained person, unless this is meaningless or

medically counterindicated (Section 35i para. 3).

27. The Supreme Court has had the opportunity to interpret the

requirements of this time-limit of three days in a case where it had

not been complied with by the President of a Regional Court. The

President had given as a reason herefor the detained person's transfer

to another region where he had been heard by another judge and that

this transfer had required additional time. However, the Supreme

Court did not accept this as an excuse for not observing the

time-limit and pointed out that the latter was of special importance

as the maximum period of detention was to be calculated from the date

of the President's decision (see decision of 23 January 1987, N.J.

1987 Nr. 409).

28. A more recent decision of the Supreme Court concerned a case

in which a judge had exceeded the three days' time-limit by one day.

The Supreme Court considered that it was no excuse that the President

of the Court had found on the last day that he should hear more

persons before taking his decision (see decision of 8 April 1988, N.J.

1988 Nr. 684).

29. Under Section 35j of the Mentally Ill Persons Act detention

(inbewaringstelling) may last up to a maximum of three weeks after the

decision of the President of the Regional Court. According to its

recent practice the Supreme Court declares an appeal against a

decision to prolong the detention inadmissible, if the period of three

weeks has already passed by the time the Supreme Court takes its

decision, since the applicant's interest in his appeal is then

considered to have been lost.

30. The President may renew detention for a second period of the

same length if, before the expiry of the first period, an application

for judicial authorisation for confinement (rechterlijke machtiging,

Sections 12 and 13) has been made (Section 35 j).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

31. The following complaints were declared admissible:

- that the Acting President of the Regional Court had not

observed the time-limit prescribed by the Mentally Ill Persons Act

when deciding on the request that the applicant's detention be

prolonged;

- that the Supreme Court did not decide on the lawfulness of the

applicant's detention;

- that in respect of these alleged violations the applicant had

not been granted an enforceable right to compensation;

- that the Supreme Court did not examine the applicant's

complaints about the Acting President's decision.

B. Points at issue

32. Accordingly, the issues to be determined are:

- whether the applicant was detained lawfully and in accordance

with a procedure prescribed by law within the meaning of Article 5

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

- whether the Supreme Court failed to examine the legality of

his detention contrary to Article 5 para. 4 (Art. 5-4) of the Convention;

- whether in respect of the alleged violations of Article 5

paras. 1 and 4 (Art. 5-1, 5-4) the applicant was entitled to

compensation under Article 5 para. 5 (Art. 5-5) of the Convention;

- whether Article 6 para. 1 (Art. 6-1) of the Convention applied

to the proceedings before the Supreme Court and, if so, whether the

applicant had a fair hearing in those proceedings.

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

33. The applicant alleges a breach of Article 5 para. 1 (Art. 5-1)

of the Convention which provides, insofar as relevant, 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, ...;

..."

34. The applicant submits that he was not detained in accordance

with a procedure prescribed by law, since the Acting President of the

Regional Court did not observe the time-limit prescribed by the

Mentally Ill Persons Act when deciding on the request that his

detention be prolonged. The applicant also submits that his mental

state did not represent such a danger as to make his detention

necessary or desirable, and that the detention was not necessary,

since he had agreed to stay voluntarily in the psychiatric hospital.

35. The respondent Government accept that the time-limit embodied

in the Mentally Ill Persons Act had been exceeded by one day.

However, they point to a decision of the Supreme Court from which they

conclude that exceeding a time-limit does not make the subsequent

detention illegal (decision of 24 April 1987; see above para. 24).

Furthermore, the Government submit that it was the opinion of the

Acting President of the Regional Court that the applicant's detention

was necessary and that it was correct for the President to assume that

the applicant was not willing to stay voluntarily in the psychiatric

hospital.

36. The Commission recalls that, on the question whether detention

is "lawful", including whether it complies with "a procedure

prescribed by law", the Convention refers back essentially 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 purpose of

Article 5 (Art. 5), namely to protect individuals from arbitrariness

(see Eur. Court H.R., Wassink judgment of 27 September 1990, Series A

no. 185-A, para. 24).

37. In the present case the Commission notes that the Regional

Court received the Public Prosecutor's request and documents

concerning the applicant's detention on 21 August 1986. According to

Section 35i para. 1 of the Mentally Ill Persons Act, it was then the

task of the President of the Court to decide within three days whether

the detention should continue. However, in view of the intervening

weekend (23-24 August), this time-limit was prolonged by two days,

i.e. until 26 August 1986. It is not in dispute that, when on 27

August 1986 the Acting President decided to prolong the applicant's

detention, the time-limit had expired.

38. Before the Commission, however, the Government have argued

that according to a judgment of the Supreme Court (see above para.

24), non-observance of this time-limit was not unlawful and did not

make the subsequent detention illegal.

39. The Commission considers that, as the applicant has also

pointed out, the judgment of the Supreme Court referred to concerned

non-observance of a different time-limit, namely that within which the

Burgomaster shall present the documents about detention to the Public

Prosecutor.

40. On the other hand, the Commission notes two other decisions of

the Supreme Court of 23 January 1987 and 8 April 1988 which concerned

the time-limit under Section 35i para. 1 now at issue (N.J. 1987 Nr.

409 and 1988 Nr. 684; see above paras. 27 and 28). In these

decisions, the Supreme Court has not been prepared to accept

exceptions to the time-limit under Section 35i para. 1.

41. It follows that during the period from 26 August 1986, when

the time-limit provided in Section 35i para. 1 of the Mentally Ill

Persons Act expired, until 15 September 1986, when the Regional Court

authorised the applicant's detention, he was not deprived of his

liberty "in accordance with a procedure prescribed by law" within the

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

42. As to the applicant's submissions that his mental state did

not make his detention necessary or desirable, and that the detention

was also not necessary because he had agreed to stay at the hospital,

the Commission finds that the Acting President of the Regional Court,

when prolonging the applicant's detention on 27 August 1986, based

himself on medical evidence, in particular Dr. Spruyt's statement, on

the basis of which he could reasonably conclude that the applicant was

a person of unsound mind whose detention was at that time required.

It follows that Article 5 para. 1 (Art. 5-1) has not been violated in

this regard.

Conclusion

43. The Commission concludes, by a unanimous vote, that there has

been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.

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

44. Article 5 para. 4 (Art. 5-4) of the Convention states:

"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."

45. The applicant claims that, contrary to Article 5 para. 4

(Art. 5-4) of the Convention, the Supreme Court did not examine the

legality of his detention. The Government submit that Article 5

para. 4 (Art. 5-4) of the Convention does not grant a right to appeal.

46. The Commission recalls that the decision of 27 August 1986 to

detain the applicant was taken by a court, namely the Acting President

of the Regional Court. Where the original decision to detain a person

is taken by a "court" within the meaning of Article 5 para. 4

(Art. 5-4) of the Convention, this satisfies at the initial stage of

the detention the supervision required by that provision. In this

case the supervision required by Article 5 para. 4 (Art. 5-4) is

incorporated in the decision. However, in order to constitute a

"court" an authority must provide the fundamental guarantees of

procedure applied in matters of deprivation of liberty (see Eur.

Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series

A no. 12, p. 40, para. 76; Bezicheri v. Italy, Comm. Report 10.3.88,

Eur. Court H.R., Series A no. 164, p. 16, para. 34). In the present

case the Commission is satisfied that the decision to detain the

applicant was taken by a court offering the said guarantees of

procedure. Consequently, the applicant did not have, under Article 5

para. 4 (Art. 5-4), a right to a further court review of the

lawfulness of his detention at that stage. Conclusion

47. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.

E. Article 5 para. 5 (Art. 5-5) of the Convention

48. Article 5 para. 5 (Art. 5-5) of the Convention states:

"5. Everyone who has been the victim of arrest or

detention in contravention of the provisions of this Article

shall have an enforceable right to compensation."

49. The applicant referring to his allegations under Article 5

paras. 1 and 4 (Art. 5-1, 5-4) submits that he is entitled to

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

50. The Government contend that the applicant's interests were not

affected, as required by Article 5 para. 5 (Art. 5-5), since on 15

September 1986 the President of the Regional Court authorised his

placement in a psychiatric hospital, i.e. one day before the period of

detention under the emergency procedure would have ended.

Accordingly, the total length of detention at issue had not exceeded

the length of time permitted under the Mentally Ill Persons Act.

51. The Commission considers that Article 1401 of the Dutch Civil

Code (Burgerlijk Wetboek) offers in cases such as the present one,

concerning the detention of persons of unsound mind, the possibility

to apply for compensation in respect of a deprivation of liberty;

Article 1401 offers an enforcable right to compensation and thus

satisfies the requirements of Article 5 para. 5 (Art. 5-5) of the

Convention (see Eur. Court H.R., Wassink judgment, ibid).

52. The applicant has not shown that he introduced such an action

according to Article 1401 of the Dutch Civil Code.

Conclusion

53. The Commission concludes, by a unanimous vote, that there has

been no violation of Article 5 para. 5 (Art. 5-5) of the Convention.

F. Article 6 para. 1 (Art. 6-1) of the Convention

54. Article 6 para. 1 (Art. 6-1) of the Convention states, insofar

as it is relevant:

"1. In the determination of his civil rights and

obligations ..., everyone is entitled to a fair and public

hearing ... by an independent and impartial tribunal

established by law..."

55. The applicant claims that, contrary to the requirements of a

fair hearing guaranteed in Article 6 para. 1 (Art. 6-1) of the

Convention, the Supreme Court did not deal with his complaints about

the Acting President's decision. The Government contend that the

applicant's detention had no effect on his capacity to administer his

property and that Article 6 para. 1 (Art. 6-1) of the Convention has

therefore not been violated.

56. The Commission considers that proceedings regarding a person's

detention in a psychiatric hospital do not as such concern the

determination of that person's "civil rights and obligations" within

the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court H.R.,

Neumeister judgment of 27 June 1968, Series A no. 8, p. 43, para. 23;

No. 9661/82, Dec. 14.7.83, D.R. 34 p. 127). This would only be the

case if, as in the Winterwerp case (Eur. Court H.R., judgment of 24

October 1979, Series A no. 33, p. 28, para. 73), it was found that the

detention had indirect effects on the detained person's right to

administer his property or to carry out legal transactions. The

Commission finds no indication of such an effect in the present case.

57. It follows that there has been no violation of the applicant's

right to a fair hearing in the determination of his civil rights and

obligations.

Conclusion

58. The Commission concludes, by 16 votes to 2, that there has

been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

G. Recapitulation

59. The Commission concludes:

- by a unanimous vote, that there has been a violation of

Article 5 para. 1 (Art. 5-1) of the Convention (para. 43);

- by a unanimous vote, that there has been no violation of

Article 5 para. 4 (Art. 5-4) of the Convention (para. 47);

- by a unanimous vote, that there has been no violation of

Article 5 para. 5 (Art. 5-5) of the Convention (para. 53);

- by 16 votes to 2, that there has been no violation of

Article 6 para. 1 (Art. 6-1) of the Convention (para. 58).

Secretary to the Commission President of the Commission

(H.C. Krüger) (C.A. Nørgaard)

DISSENTING OPINION of Mrs. G.H. THUNE and Basil HALL

While noting the past case-law of the Court and Commission, we

find ourselves unable to agree with the opinion of the majority of the

Commission (para. 56) that proceedings regarding a person's detention

in a psychiatric hospital do not as such concern the determination of

that person's civil rights.

The right to protection against unlawful interference with

one's person and the right to protection against unlawful interference

with one's property are fundamental rights in the laws of civilised

states which can be invoked against acts both of private individuals

and of state authorities. Many of the delictual systems of member

states derive from these two basic rights, which must in our view be

classified as civil rights for the purposes of Article 6 para. 1 of

the Convention. Indeed the Court has recognised in a number of its

judgments that questions over interference by state authorities with

property rights involve the determination of civil rights. We cannot

see that questions over the legality of interference with the person

fall into a different category.

Indeed a determination of a dispute over the legality of a

restriction in a person's liberty which is imposed by another private

person or private institution would clearly be a determination of a

civil right. So too, in our opinion, must be the determination of a

dispute over the legality of such a restriction which is imposed by

state authorities.

Accordingly, the failure of the Supreme Court to pronounce on

the legality of the deprivation of the applicant's liberty constituted

a violation of Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

24 April 1987 Introduction of the application

2 May 1987 Registration of the application

Examination of admissibility

13 October 1987 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

8 January 1988 Government's observations

30 March 1988 Applicant's observations in reply

10 July 1989 Commission's decision to declare

the application admissible

Examination of the merits

9 December 1989, Commission's consideration of

12 May and the state of proceedings

6 October 1990

6 December 1990 Commission's deliberations on the

merits, final vote and adoption

of the Report

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SMIET v. THE NETHERLANDS

SMIET v. THE NETHERLANDS

LEXI