Lexploria

Application No. 11509/85

Hendrika Wilhelmina VAN DER LEER

against

the NETHERLANDS

REPORT OF THE COMMISSION

(adopted on 14 July 1988)

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1 - 23) ...................................... 1

A. The application

(paras. 2 - 9) ............................... 1

B. The proceedings

(paras. 10 - 18) ............................. 2

C. The present Report

(paras. 19 - 23) ............................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 24 - 44) .................................... 4

A. Particulars of the case

(paras. 24 - 34) ............................. 4

B. Relevant domestic law and practice

(paras. 35 - 44) ............................. 5

III. SUBMISSIONS OF THE PARTIES

(paras. 45 - 91) ..................................... 9

A. The applicant

(paras. 46 - 70) ............................. 9

a. Article 5 para. 1 (e) of the Convention

(paras. 46 - 64) .......................... 9

b. Article 5 para. 2 of the Convention

(paras. 65 - 66) .......................... 12

c. Article 5 para. 4 of the Convention

(paras. 67 - 69) .......................... 12

d. Article 6 para. 1 of the Convention

(para. 70) ................................ 13

B. The Government

paras. (71 - 91) ............................. 13

a. Article 5 para. 1 (e) of the Convention

(paras. 71 - 85) .......................... 13

b. Article 5 para. 2 of the Convention

(paras. 86 - 87) .......................... 16

c. Article 5 para. 4 of the Convention

(paras. 88 - 89) .......................... 16

d. Article 6 para. 1 of the Convention

(paras. 90 - 91) .......................... 16

IV. OPINION OF THE COMMISSION

(paras. 92 - 124) .................................... 17

A. Points at issue

(para. 92) ................................ 17

B. As regards Article 5 para. 1 of

the Convention

(paras. 93 - 101) ......................... 17

C. As regards Article 5 para. 2 of

the Convention

(paras. 102 - 108) ........................ 19

D. As regards Article 5 para. 4 of

the Convention

(paras. 109 - 118) ........................ 20

E. As regards Article 6 para. 1 of

the Convention

(paras. 119 - 123) ........................ 22

F. Recapitulation

(para. 124) ............................... 23

Separate opinion by Mr. Trechsel ............................. 24

APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 25

APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 26

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, Hendrika Wilhelmina VAN DER LEER, is a Dutch

citizen born in 1922. She presently resides in The Hague, the

Netherlands, and she is unemployed.

3. In the proceedings before the Commission she is represented by

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

4. The application is directed against the Netherlands. The

Netherlands Government are represented by Mrs. Dorothea S. van Heukelom,

of the Netherlands Ministry of Foreign Affairs, as Agent.

5. The applicant entered a psychiatric hospital on a voluntary

basis on 11 November 1983. On 18 November 1983 the District Court

judge (Kantonrechter) of The Hague ordered her detention in the

hospital for six months. The applicant was neither heard before this

decision was taken, nor informed of it.

6. After she had discovered that she was being detained, she had

her lawyer request the board of the psychiatric hospital to discharge

her. This request was made on 6 December 1983 and refused on

15 December 1983. Thereupon, the discharge request was referred to

the Regional Court (Arrondissementsrechtbank) of The Hague, which on

7 May 1984 revoked the detention order.

7. Meanwhile, the applicant had left the hospital without

authorisation on 26 January 1984. The hospital granted her

probationary leave on 31 January 1984.

8. The applicant complains that, because she was not heard

without any reasons being given by the judge in support of such a

procedure, the detention order was not taken "in accordance with a

procedure prescribed by law" and was not "lawful". The Dutch law was

also disregarded in other respects. Therefore her detention was in

violation of Article 5 para. 1 (e) of the Convention. Also, because

she was not informed of the detention order, nor had the possibility

to have the lawfulness of her detention decided speedily by a court,

she alleged violations of Article 5 paras. 2 and 4 of the Convention.

9. Finally, the applicant complains that, for the reasons

mentioned above, she was denied a fair hearing in contravention of

Article 6 para. 1 of the Convention.

B. The proceedings

10. The application was introduced on 18 May 1984 and registered

on 24 April 1985.

11. On 9 October 1985, the Commission decided to invite the

respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of

Procedure, to submit written observations on admissibility and merits

before 20 December 1985.

12. The Government submitted their observations on 12 December

1985 and the applicant submitted observations in reply on 6 February 1986.

13. On 16 May 1986, the Commission decided that the applicant be

granted legal aid.

14. On 16 July 1986 the Commission declared the application

admissible.

15. The respondent Government submitted further observations on

the merits on 28 November 1986 and on 2 September 1987. The applicant

submitted observations on the merits on 26 March 1987.

16. On 15 October 1987 the Commission decided to hold an oral

hearing on the merits of the application.

17. The hearing took place on 20 January 1988. The parties were

represented as follows:

- the Applicant

by her counsel, Mrs. G.E.M. LATER, and

by Mr. W.J.J. LOS, legal assistant

- the Government

by their Agent, Mrs. D.S. VAN HEUKELOM

of the Ministry for Foreign Affairs, who was assisted

by Mrs. R.E. VAN GALEN-HERRMANN and

Mr. J. DE BOER, both of the Ministry of Justice,

as Advisers

18. After declaring the case admissible the Commission, acting in

accordance with Article 28 (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 upon which such a settlement can be

effected.

C. The present Report

19. 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

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

M. C.L. ROZAKIS

Mrs. J. LIDDY

20. The text of this Report was adopted on 14 July 1988 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

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

22. 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.

23. 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. Particulars of the case

24. On 11 November 1983, the applicant was admitted to a

psychiatric hospital in The Hague, on a voluntary basis.

25. On 18 November 1983, the District Court judge (Kantonrechter)

of The Hague ordered her compulsory detention in the psychiatric

hospital for a period of six months, in accordance with Section 17 of

the Mentally Ill Persons Act (Krankzinnigenwet). A request hereto had

been brought by the applicant's husband.

26. The request was supported by a medical statement given by a

psychiatrist. He had examined the applicant in the hospital on

16 November 1983. In this statement, the psychiatrist answered in the

negative the question whether it would serve no purpose or be medically

contra-indicated that the applicant be heard by a judge. He considered

it necessary for her to be detained to protect herself and/or others.

27. In deciding on the detention order, the District Court judge

did not conduct any hearings. Consequently, no procès-verbal was

drawn up. The written court order states that the medical statement

sufficiently indicates the necessity of detaining the applicant in a

mental hospital. The pre-printed reference, on the standard-form

order, to the applicant not being heard because it would serve no

purpose or be medically contra-indicated, was deleted, without other

reasons being given for not hearing the applicant.

28. The applicant was not informed of the detention order, nor did

she receive a copy of the written decision.

29. On 28 November 1983, she became aware of her compulsory

detention because she was placed in isolation, which is not done with

voluntary patients. On the same day, the applicant contacted her

lawyer. On 6 December 1983, the lawyer requested the board of the

hospital to discharge her. This request was made in accordance with

Section 29 para. 1 of the Act.

30. The request was refused by the board of the hospital on

15 December 1983, on the basis of the professional opinion of the

medical director of the hospital. In accordance with Section 29 para.

2 of the Act the request was then sent to the Public Prosecutor to be

brought before the Regional Court (Arrondissementsrechtbank) of The

Hague.

31. The Regional Court held hearings on 5 March 1984, 16 April 1984

and 7 May 1984. The request was considered on these dates as well as

on 26 March 1984.

32. On 7 May 1984, the Court ordered the applicant's discharge.

33. On 26 January 1984, the applicant had already left the

hospital with the help of her husband. She was not authorised to

leave.

34. According to the hospital she was discharged on probation as

from 31 January 1984. The applicant was not directly informed of

this.

B. Relevant domestic law and practice

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

governed by the "Act of 27 April 1984, 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, hereafter referred

to as the Act).

36. The relevant provisions in respect of the present application,

i.e. those dealing with requests to have someone detained in a

mental hospital and the procedures leading to detention and release,

are Sections 12, 16, 17 and 29.

37. Section 12 of the Act permits, inter alia, the spouse of a

mentally ill person to apply in writing to the local District Court

judge (Kantonrechter) for an authorisation to have that person

temporarily placed in a mental hospital, where this is necessary in

the interests of public order or of the mentally ill person himself.

38. Section 16 of the Act requires that such an application be

accompanied by a reasoned medical statement by a qualified doctor who

has specialised in mental and nervous disorders. This statement must

make it clear that the patient is mentally ill and that treatment in a

mental hospital is necessary or desirable. The statement should also

indicate whether or not, in view of the patient's condition, it would

serve no purpose or be medically contra-indicated to have the deciding

judge hear the patient.

39. Section 17 of the Act sets out the procedure before the

District Court judge. The relevant paragraphs provide as follows:

"1. Wanneer de verklaring van den geneeskundige,

hetzij alleen, hetzij in verband met de vermelde

omstandigheden en overgelegde bescheiden, het bestaan van

krankzinnigheid en de noodzakelijkheid of wenschelijkheid van

de verpleging in een krankzinnigengesticht aanvankelijk

genoegzaam aantoont, <.....>, zoo verleent de kantonrechter,

<.....>, de verzochte machtiging. De beschikking, waarbij

machtiging wordt verleend, is niet onderworpen aan hoger

beroep.

<.....>

3. Alvorens op het verzoek <.....> te beschikken hoort

de rechter de persoon wiens plaatsing is verzocht <.....>,

tenzij naar zijn oordeel uit de bij het verzoek of

requisitoir overgelegde verklaring van een zenuwarts <.....>

blijkt, dat de toestand van de patiënt dit zinloos of uit

medische overwegingen onverantwoord doet zijn. Hij kan aan

de patiënt hetzij op diens verzoek hetzij ambtshalve een

advocaat of procureur toevoegen. De artikelen 48 en 49

Wetboek van Strafvordering zijn van overeenkomstige

toepassing.

4. De rechter doet zich, voor zoveel mogelijk,

voorlichten door:

a. degene, die ingevolge de artikelen 12 en 13 de

machtiging heeft gevraagd of gevorderd;

b. de niet van tafel en bed gescheiden echtgenoot;

<.....>

8. De machtiging van den kantonrechter, <.....> wordt

<.....> niet beteekend aan den persoon wiens plaatsing is

verzocht <.....>."

"1. Where the statement by the doctor, either by itself or

in connection with the stated circumstances and submitted

documents, sufficiently demonstrates, prima facie, the

existence of mental illness and the necessity or

desirability of treatment in a mental hospital, <....> the

District Court judge <....> will grant the requested

authorisation (*). The court order granting the

authorisation is not subject to appeal.

3. Before deciding on the request, the judge will hear the

person for whom placement has been

requested, unless in his opinion it appears from the

accompanying statement by a psychiatrist that, in view of

the patient's condition, would serve no purpose

or, for medical reasons, be contra-indicated. At the patient's

request, or ex officio, he may appoint a lawyer to act on the

patient's behalf. Sections 48 and 49 of the Code of Penal

Procedure apply correspondingly.

4. Insofar as possible, the judge will seek information

from :

a. the person who requested the authorisation pursuant

to Sections 12 and 13;

b. the spouse who is not legally separated;

<.....>

8. The authorisation order of the District Court judge

<....> is not served on the person for whom placement has

been requested. <....>"

40. The Dutch Supreme Court (Hoge Raad) has elaborated the meaning

of the phrase that treatment in a mental hospital must be "necessary

or desirable", by stipulating that the patient must present a danger

to himself, to others, or to the general public order, to such

an extent that he cannot safely remain in his usual surroundings.

41. The procedure whereby a patient detained in a mental hospital

can apply for discharge is governed by Section 29 of the Act. The

patient may petition the board of the hospital for his release at any

time. The board asks the advice of their senior psychiatrist. If

_____

(*) I.e. the Court's authorisation for the compulsory detention

and treatment in a mental hospital.

his recommendation is against discharge, they send the discharge

request and the psychiatrist's report to the Public Prosecutor

(Officier van Justitie) with the Regional Court

(Arrondissementsrechtbank) in the jurisdiction of which the hospital

is situated.

42. The Regional Court decides on the discharge request. The Court

may decide to conduct a further investigation. If they do, the

provisions of paragraphs 2, 3, 5 and 6 of Section 23 of the Act apply.

These read as follows:

"2. De rechtbank kan echter nader bewijs door getuigen of

andere middelen gelasten en zelfs het verhoor van den

verpleegde bevelen.

3. Wordt het verhoor van den verpleegde bevolen, dan

geschiedt dit in het gesticht, al of niet in

tegenwoordigheid van een der daaraan verbonden

geneeskundigen.

5. De rechtbank kan het verhoor opdragen aan een daartoe

door haar te benoemen rechter-commissaris of aan den

kantonrechter in wiens ressort het gesticht is gelegen.

6. Bij gelegenheid van het verhoor van den verpleegde

kunnen tevens de geneeskundigen en andere personen, die zich

in het gesticht bevinden, als getuigen worden gehoord zonder

voorafgaande oproeping of schadeloosstelling."

"2. The Regional Court may, however, have further evidence

presented by witnesses or otherwise, or even order a hearing

of the patient.

3. If a hearing of the patient is ordered, it shall take

place at the hospital, with or without one of the hospital's

doctors being present.

5. The Regional Court may order that the hearing be

carried out by an appointed investigating judge or by the

District Court judge in whose jurisdiction the hospital

is situated.

6. Upon the occasion of the hearing of the patient, the

doctors and others who are in the hospital may be heard as

witnesses without being summoned beforehand or indemnified."

43. Following the judgment of the European Court of Human Rights

in the case of Winterwerp (Winterwerp judgment of 24 October 1979,

Series A No. 33), the Supreme Court (Hoge Raad) and the Minister of

Justice have drawn the attention of the Dutch Public Prosecutors and

Courts to the importance of hearing the patient in connection with

a discharge application presented under Section 29, in cases where he

has not been previously heard by the District Court judge.

44. Sections 32 - 35 of the Act govern the civil capacity

of someone who is placed in a mental hospital. Under Section 32

a mentally ill person, by operation of law, loses the capacity to

administer his property upon being placed in a mental hospital.

However, following the judgment in the Winterwerp case (see

reference above, para. 43) these provisions are no longer applied.

In the present situation, placement in a mental hospital has thus no

legal consequences for a patient's capacity to administer his property.

III. SUBMISSIONS OF THE PARTIES

45. The parties' submissions on the merits of the application are

summarised below. The submissions made at the admissibility stage are

summarised in the decision on admissibility (Annex II).

A. The applicant

a. Article 5 para. 1 (e) of the Convention&S

aa. The obligation to hear the patient on the basis of

Section 17 of the Mentally Ill Persons Act

46. Section 17 para. 3 of the Act requires that a patient who is

to be detained in a mental hospital must be heard before a decision is

taken, unless, in the opinion of the judge, it is clear from the

psychiatrist's report that hearing the patient would serve no purpose

or be medically contra-indicated.

47. The meaning of this provision in Dutch law can be determined

with reference to the decisions of the Supreme Court (Hoge Raad) on

the subject. Since the judgment of the European Court of Human Rights

in the Winterwerp case (judgment of 24 October 1979, Series A no. 33),

the previously not uncommon practice of not hearing mentally ill

persons before deciding on their detention in a mental hospital, has

on several occasions been reviewed by the Supreme Court.

48. In the first of two cases decided on 27 November 1981 (Rek.

5922, NJ 1983, no. 57), the Supreme Court firstly noted that it did

not appear from the judicial order of the president of a Regional

Court on detention in a mental hospital, that the patient had been

heard. Consequently, it did not appear that the judge had decided

while taking into account Section 17 para. 3 of the Act. Nor did it

appear that the judge was of the opinion that it was apparent from the

psychiatrist's statement that hearing the patient would serve no

purpose or be medically contra-indicated as provided for under this

provision. In these circumstances, the Supreme Court concluded that

either the president of the Regional Court had violated the law by

granting the detention authorisation without hearing the patient, or

the president's order was rendered null and void because it

disregarded the formal requirement to hear the patient.

49. In the second case (Rek. 5922, NJ 1983, no. 57), the appeal in

cassation to the Supreme Court was inadmissible for formal reasons.

However, the Supreme Court did state that the importance to be

attached to the requirement to hear the patient, as outlined in the

previous case before the Supreme Court, was equally relevant to a

procedure for a detention authorisation before a District Court

judge.

50. In a case decided on 24 December 1981 (No. 5966, unpublished)

the Supreme Court ruled that it did not suffice to state that the

patient did not appear in Court despite having been properly summoned.

Here too, the judicial order must state that, in the opinion of the

judge, one of the exceptions of Section 17 para. 3 applies. The

Supreme Court overruled this judicial order in view of the importance

which must be attached to the requirement to hear the patient, as also

appears from the parliamentary history of this provision of the Act.

51. Where the patient himself does not wish to be heard, the

Supreme Court has ruled in a case of prolongation of detention

(HR 25.11.83, NJ 1984, no. 163) that, in view of the serious nature of

detention in a mental hospital, the judge's decision must make it clear

how the patient was notified of his right to be heard and, if he

does not wish to be heard, how the judge came to know that the patient

did not wish to be heard.

52. The Supreme Court has allowed a judge, in a prolongation case,

not to hear a patient where the decision had to be taken urgently and

the patient was fugitive and could not therefore be summoned to be

heard. That does not apply to the applicant's case as the decision

was not urgent and she was easily available for a hearing at the

mental hospital.

53. In the cases outlined above, decisions to place in or prolong

detention in a mental hospital were quashed by the Supreme Court. In

each case there was a defect relating to the hearing of the patient.

The deciding judge had either failed to hear the patient, failed to

give reasons for not hearing the patient, or given the wrong reasons

for not hearing the patient. These decisions by the Supreme Court

clearly indicate that judges who fail to deal with the hearing of a

patient correctly, act unlawfully.

54. As in these cases the judicial order in the present case for

detention in a mental hospital was given in violation of the

requirements of the Act. This judicial order was therefore in

violation of Article 5 para. 1 (e) of the Convention, because it cannot

be considered to have been made "lawfully" or "in accordance with

a procedure prescribed by law".

55. In the Supreme Court case on which the Netherlands Government

rely (HR 1.7.83, NJ 1984, no. 161) the patient was not heard, but the

reasons for not doing so were lawful. In that case the patient's

subsequent right to be heard in the release proceedings cures the

initial failure to hear the patient, but the detention order in itself

was lawful.

56. In the applicant's case, the detention order was not lawful

and therefore the subsequent hearing of the patient in the release

proceedings could not cure defects in the initial order. This could

only be the case if release proceedings were an integral part of the

detention procedure and were not subject to the patient's volition

before being instituted. As the release proceedings are not an

integral part of the detention procedure, they cannot be taken into

account when reviewing the lawfulness of the procedure under national

law in respect of Article 5 para. 1 (e) of the Convention.

57. It is true that Article 5 para. 1 (e) of the Convention does

not require a decision by a judge. But, where the national procedure

provides for it, and stipulates specific guarantees for it, the

decision must be in accordance with the national procedure for the

detention to be lawful.

58. The applicant maintains that, because she was not heard,

without any reasons being given by the District Court judge for his

decision, she was arbitrarily detained in a mental hospital in

violation of Article 5 para. 1 (e) of the Convention.

bb. Other legal requirements

Danger criterion

59. The detention order of the District Court judge in the

applicant's case only makes use of a standard formula to indicate the

necessity of detaining the applicant. It is not apparent whether or

not the judge applied the criterion as elaborated by the Supreme Court

in its decision of 16 April 1982 (NJ 1983, no. 33) for determining the

necessity of detention. This criterion states that there must exist a

danger, as a consequence of the mental illness, to the person himself,

to others or to the general safety of persons and property, such that

detention of that person in a mental hospital is necessary or

desirable.

60. In several instances the Supreme Court has quashed decisions

where the aforementioned criterion was not applied (see for example HR

14.2.86, NJ 1986, no. 400 and HR 15.7.86, NJ 1986, no. 765). In the

applicant's case the psychiatrist's statement cannot support the

conclusion that the applicant was dangerous. Therefore, the standard

formula used by the District Court judge does not sufficiently

indicate how the judge used the criterion to determine the existence

of the requisite element of danger. As it does not appear from the

District Court judge's order that he applied the Supreme Court's

criterion, if this order had been liable to review by the Supreme

Court it would have had to be quashed, given the Supreme Court's

existing jurisprudence. Later decisions concerning the applicant's

detention support the conclusion that she was not sufficiently

dangerous.

61. Furthermore, it is questionable whether the psychiatrist's

statement was a sufficiently objective expert report to justify the

conclusion that she was of "unsound mind" within the meaning of

Article 5 para. 1 (e) of the Convention. This statement was in large

part based on information given by the consulting psychiatrist, and as

the applicant was already voluntarily in the hospital at the time, the

conclusions in the statement concerning threats to her husband or the

neighbours could not possibly apply any longer.

62. The non-application of the danger criterion and the

insupportive psychiatrist's statement lead to the conclusion that the

applicant's detention did not comply with the conditions in Section 17

para. 1 of the Act. Consequently it was unlawful and also a violation

of Article 5 para. 1 (e) of the Convention.

Hearing the husband

63. Section 17 para. 4 of the Act requires the judge to seek

information from, inter alia, the spouse of the mentally ill person.

It is accepted that he may refrain from hearing the spouse on the

ground that it would constitute a serious psychological burden, but

reasons would have to be given for a decision not to hear the spouse.

That was not done in the applicant's case, where the need to hear the

spouse was all the more important, as he was the person requesting the

detention.

Registrar and procès-verbal

64. Section 72 of the "Reglement I" requires that a registrar

should be present and a procès-verbal drawn up at a hearing regarding

detention. The Supreme Court has on numerous occasions quashed decisions

where a hearing was held but no registrar was present and therefore no

procès-verbal was drawn up, with the result that a copy could not be

provided for the parties. In the applicant's case there was neither a

hearing, nor a registrar and consequently no procès-verbal.

b. Article 5 para. 2 of the Convention&S

65. The Commission has accepted in its report in the case of X v.

United Kingdom (Comm. Report 16.7.80, para. 103, Eur. Court H.R.,

Series B no. 41, p. 43) that Article 5 para. 2 of the Convention is

not limited to the situation dealt in with Article 5 para. 1 (c) of

the Convention.

66. The applicant states that Article 5 para. 2 does apply to her

case. She has a right to know that she is being detained, both to be

able to challenge the lawfulness of her detention and to be able to

institute proceedings requesting her release. She suffered prejudice

because she could not institute release proceedings until after she

knew she was in detention. Therefore, her detention lasted longer

than necessary.

c. Article 5 para. 4 of the Convention&S

67. The European Court of Human Rights has stated that Article 5

para. 4 requires prompt and adequate information to be given to the

person in detention regarding the facts and grounds for his arrest or

detention (Eur. Court H.R., case of X v. United Kingdom of

5 November 1981, Series A no. 46, para. 66). This in itself reveals

a violation of this provision in the applicant's case.

68. Article 5 para. 4 of the Convention also provides that the

decision on the lawfulness of the detention must be made "speedily".

In the applicant's case the release request was made on 6 December 1983

and the decision releasing her was delivered on 7 May 1984. She had

been granted probationary leave on 31 January 1984 but she did not

become aware of this until sometime in March. Moreover, during

probationary leave the applicant may de facto have been at liberty,

but de jure she remained in detention. She could be brought back to

the hospital at any time without any sort of prior procedure or

judicial decision. Article 5 para. 4 of the Convention must apply to

all situations where a person is not de jure at liberty.

69. The decision on the lawfulness of her detention, which gave

rise to the release of the applicant, was made five months after her

request had been submitted. This cannot be called "speedily". In any

case, even if one were only to count the period until probationary

leave was given, i.e. 31 January 1984, that time period would

constitute a violation of Article 5 para. 4 of the Convention.

d. Article 6 para. 1 of the Convention&S

70. The applicant considers that she did not have a fair hearing

as guaranteed by Article 6 para. 1 of the Convention. As regards the

provisions in the Mentally Ill Persons Act concerning the automatic

loss of the legal capacity to administer one's property which might

raise problems under Article 6 para. 1 of the Convention, she admits

that they are no longer applied in the Netherlands.

B. The Government

a. Article 5 para. 1 (e) of the Convention&S

aa. The obligation to hear the patient on the basis of

Section 17 of the Mentally Ill Persons Act

71. Under Article 5 para. 1 (e) of the Convention one of the

requirements is that the detention must be imposed in accordance with

a procedure prescribed by law. In the opinion of the European Court

of Human Rights this element does not entail any specific procedural

guarantee, but it essentially refers to national law. The purpose of

this element is to prevent arbitrary detention and the Court

considered that it could only review the application of national law

in that light. It is up to the national courts to interpret their

national law (see Eur. Court H.R., Winterwerp judgment of 24 October 1979,

Series A no. 33, paras. 45 and 46).

72. The hearing of the patient is an aspect of national procedure

contained in the Act. Section 17 para. 3 requires that the patient

be heard unless, in the judge's opinion, it appears from the

psychiatrist's statement that a hearing would serve no purpose or be

medically contra-indicated. This provision does not contain a

requirement that the judge give reasons for not hearing the patient

and until 1981 reasons were frequently not given. By a decision of

27 November 1981 (NJ 1983, no. 56), however, the Supreme Court

determined that a decision not to hear the patient must be supported

by reasons under Section 17 para. 3 of the Act.

73. The question to be considered here is what the consequences

are, under national law as interpreted by the Supreme Court, of a

judge not hearing the patient while at the same time not indicating

the reasons for not doing so. In particular, would the detention in

such circumstances be unlawful?

74. The Supreme Court's decision of 1 July 1983 (NJ 1984, no. 161)

is instrumental in determining this question. In this case, the

President of a Regional Court (Arrondissementsrechtbank) had failed to

state his reasons for not hearing a patient, in a procedure for

prolongation of detention in a mental hospital under Section 35

para. 3 of the Act (which is identical to Section 17 para. 3 of the

Act concerning initial detention decisions).

In this decision, the President referred to a psychiatrist's statement

dating from the initial detention order as the basis of his decision.

In this statement, the psychiatrist had responded to the question "In

your opinion, in view of the patient's condition, would it serve no

purpose or be medically contra-indicated for the patient to be heard by

a judge?" with the answer "I cannot determine that". In the

opinion of the judge, the patient's condition did render it unnecessary

for him to be heard.

75. The Supreme Court determined that a simple reference to the

psychiatrist's statement did not suffice as reason for the President's

decision. Consequently, the decision was annulled. However, the

Supreme Court went on to say that this did not imply that the decision

had not been made "in accordance with a procedure prescribed by law",

as required by Article 5 para. 1 (e) of the Convention. The Supreme

Court based its opinion on the fact that all the necessary conditions

for compulsory detention had been met and the decision had been taken

by a competent authority.

76. The Supreme Court did, however, consider that, as the patient

was not heard, the supervision required by Article 5 para. 4 of the

Convention was not incorporated in the decision. This was because,

without a hearing, the procedure does not qualify as "proceedings

before a court" in the sense of the Convention. However, this does

not invalidate the detention decision. It merely requires that, in

the whole of the legal system which applies to detention in a mental

hospital, there must be an option for the patient to take proceedings,

as required by Article 5 para. 4 of the Convention. The failure to

hear the detained person before the detention order was given could be

remedied, in the view of the Supreme Court, by a subsequent hearing in

connection with a request for discharge.

77. The Supreme Court then indicated that the requirement of a

hearing should be met in the discharge proceedings governed by

Sections 28 to 30 of the Act. This requires that in future all

release requests which come before the Public Prosecutor would have to

be referred to a court and the patient would always have to be heard.

As a result, Section 29 para. 3 and Section 29 para. 6 in conjunction

with Section 23 para. 2 of the Act are no longer to apply.

78. In the present case the decision not to hear the applicant was

not supported by any reasons. In law that would be the same as not

giving sufficient reasons. Following the reasoning outlined above

that does not lead to the detention being unlawful. The requirement

that the judge give reasons for not hearing the patient is not

contained in the Act, but has been elaborated by the Supreme Court.

The Supreme Court does not consider that a failure to give reasons

leads to the detention being unlawful.

79. The Government is of the opinion that, where the Commission

must decide if a detention was imposed "in accordance with a procedure

prescribed by law", and where it is not the Convention but the

Netherlands Mentally Ill Persons Act which requires that a person be

heard prior to detention (note that the Convention only requires that

a person be heard shortly after detention), the Commission must follow

the interpretation of the requirement to hear as given by the

Netherlands Supreme Court. All the more so where the requirement to

give reasons for not hearing the person to be detained is not a

provision of Dutch law, but has been elaborated by the Supreme Court

itself in its jurisprudence.

bb. Other legal requirements

Danger criterion

80. The determination of the existence of sufficient danger due to

mental illness is an element of the Dutch procedure for detaining

mentally ill persons, and it is the task of the Dutch courts to

determine the existence of such a danger.

81. In the applicant's case the judge did not have to rely only on

the psychiatrist's statement, but he also took into account the

applicant's past history of repeated detention in mental hospitals.

The reasons given in the psychiatrist's statement, i.e. the

applicant's imminent physical exhaustion and the relationship with her

neighbours, which was getting out of hand, could, together with her

past history, be a sufficient justification for the judge's decision

to have the applicant detained. Several notes, statements and advisory

opinions drawn up soon after the applicant's admission to hospital

corroborate this.

Hearing the husband

82. It appears from the parliamentary history of the Bill and from

decisions of the Supreme Court (see for example HR 6.4.1984, NJ 1985,

no. 400) that Section 17 para. 4 of the Act is not meant to make it

compulsory for the deciding judge to hear the spouse of the patient,

due to the possible severe psychological strain which this might place

on the spouse, in particular, where he is the person who requested the

detention authorisation.

Registrar and procès-verbal

83. The Supreme Court requires that, under the Act, when a patient

is heard a Registrar must be present and a procès-verbal must be drawn

up of which, if necessary, a copy must be provided to persons heard.

In its decision of 28 September 1984 (NJ 1985, no. 105), the Supreme

Court determined that not having a registrar present to draw up a

procès-verbal at the session of the court does not in itself

invalidate the decision.

84. In the applicant's case, there was no hearing, and

consequently it was not necessary to have a registrar present. The

applicant cannot be said to have been prejudiced in any way by not

having had a registrar present. This complaint must be considered

subsidiary to the complaint about not being heard.

85. The Netherlands Government reiterate that the District Court

judge's decision, on the basis of the criteria in the Act that there

was sufficient reason to detain the applicant in a mental hospital,

was a valid decision within the meaning of Article 5 para. 1 (e) of

the Convention. Only if it were later to appear that, after due

consideration, this extent of the mental illness and of the danger it

presented could not have been determined, would the District Court

judge's decision have been invalid.

b. Article 5 para. 2 of the Convention&S

86. Article 5 para. 2 of the Convention cannot apply to detention

in a mental hosptial. The wording of para. 2 unequivocally refers to

a right to information concerning arrest and charges made against a

person detained as suspected of an offence. In the case of someone

who is committed to a mental hospital, the reason for the detention is

obvious: that the person is seriously mentally ill and is a danger to

himself, others or public order.

87. However, by failing to inform the applicant of her detention,

which she could not deduce from an arrest as she was already

voluntarily in the hospital, the applicant's right under Article 5

para. 4 of the Convention, to have the lawfulness of her detention

decided speedily by a court, was infringed. For this reason she

should have been promptly informed of her compulsory stay in the

hospital.

c. Article 5 para. 4 of the Convention&S

88. The Netherlands Government maintain their position that

Article 5 para. 4 of the Convention was violated because the applicant

did not have the opportunity to take proceedings to have the

lawfulness of her detention decided speedily by a court as she was not

informed of her detention. Therefore she was prevented from bringing

her case to court to have a decision shortly after 18 November 1983.

89. Furthermore, the Netherlands Government consider that the

applicant's detention lasted from 18 November 1983 until

31 January 1984, when she was granted probationary leave.

d. Article 6 para. 1 of the Convention&S

90. Article 6 para. 1 of the Convention does not apply to the

present case as the District Court judge was not called upon to

determine the applicant's civil rights and obligations. The procedures

to be followed in detaining a person are governed by Article 5 of the

Convention and must be accordingly reviewed in that light and not on

the basis of Article 6 of the Convention.

91. Section 32 of the Mentally Ill Persons Act stipulates that

every adult who is placed in a mental hospital for reasons of insanity

automatically loses the right to administer his property. However,

this provision is no longer applied, as it violates Article 6 of the

Convention. If someone is considered incapable of properly

administering his property, a separate procedure establishing

guardianship can be initiated by the Public Prosecutor. However,

that did not occur in the applicant's case.

IV. OPINION OF THE COMMISSION

A. Points at issue

92. The Commission is called upon to determine the following

questions:

a. Article 5 (Art. 5) of the Convention

- Was the applicant's detention in the psychiatric hospital

ordered in accordance with a procedure prescribed by law and was it

lawful in the meaning of Article 5 para. 1 (e) (Art. 5-1-e)?

- Did the applicant have a right under Article 5 para. 2 (Art. 5-2) to

be informed of her detention and of the reasons for it, and if so, was she so

informed promptly as required by that provision?

- Was the applicant, following the decision to detain her,

given the possibility of taking proceedings to have the lawfulness

of her detention decided in accordance with Article 5 para. 4 (Art. 5-4)?

Furthermore, did the competent District Court give a decision speedily

as required by that provision?

b. Article 6 (Art. 6) of the Convention

- Did the District Court, in ordering the applicant's detention,

determine her civil rights and obligations within the meaning of Article 6

para. 1 (Art. 6-1)? If so, did the proceedings conform with the guarantees

contained in this provision?

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

93. The relevant parts of this provision read 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 ...

94. The applicant has alleged that her detention in a psychiatric

hospital was not ordered "in accordance with a procedure prescribed by

law" and that it was not "lawful" within the meaning of Article 5 para. 1 (e)

(Art. 5-1-e). She has pointed out, in particular, that the District Court

judge who ordered her detention did not hear her before taking that decision,

nor did he indicate the reasons for not hearing her in his decision.

95. The Government have admitted that, according to the

jurisprudence of the Dutch Supreme Court, a judge who decides to

detain a person in a psychiatric hospital without a hearing of that

person shall indicate in his decision the reasons why the person

concerned was not heard. In the Government's submission, however,

neither the failure to hear the detained person nor the failure to

indicate the reasons for not hearing that person would make the

decision unlawful or taken in disregard of a procedure prescribed by

law. In particular, the Dutch Supreme Court had considered that a

failure to hear the detained person could be remedied later by giving

that person the opportunity of being heard in connection with the

examination of an application for discharge.

96. The Commission notes that Section 17 para. 3 of the Dutch

Mentally Ill Persons Act provides that, before deciding on a request

for a person's detention in a psychiatric institution, the judge shall

hear the person concerned unless it appears from a statement by a

psychiatrist that in view of the patient's condition, a hearing would

serve no purpose or be medically contra-indicated.

97. In the present case, this condition for not hearing the

applicant was not fulfilled. Indeed, in the statement which had been

signed by a psychiatrist and which was invoked in support of the

applicant's detention, the psychiatrist had answered in the negative

the question whether it would serve no purpose or be medically

contra-indicated to hear the applicant. Moreover, in the form which,

signed by the judge, constituted the order for the applicant's

detention, the pre-printed reference to the exception for cases where

a hearing would serve no purpose or be medically contra-indicated had

been deleted, which seems to indicate that the judge had not

considered this exception to be applicable. Nor did he indicate in his

order any other reasons for not hearing the applicant.

98. In these circumstances, the Commission considers that the

conditions laid down in Dutch law for not hearing the applicant have

not been shown to have been satisfied. Consequently, the applicant's

detention was not ordered in accordance with a procedure prescribed by

Dutch law and it does not therefore satisfy the conditions of Article 5 para. 1

(Art. 5-1). Having reached this conclusion, the Commission does not find it

necessary to examine also whether or not the applicant's detention was "lawful"

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

99. The Commission has further examined whether Article 5 para. 1

(Art. 5-1) has also been violated in other respects by failure to observe any

rules provided for in Dutch law. It has noted on this point the

applicant's allegations:

a. that, contrary to Section 17 para. 1 of the Act, the existence

of mental illness and the necessity or desirability of treatment in a

mental hospital had not been proved,

b. that, contrary to Section 17 para. 4 of the Act, the

applicant's husband had not been heard, and

c. that, contrary to certain procedural rules, a registrar was

not present to draw up a procès-verbal when her detention was decided.

100. However, the Commission finds no violation of Article 5 para. 1

(Art. 5-1) on any of these three points. As regards the substantive conditions

for the applicant's detention the Commission notes that this is a

question which must primarily be examined and decided by the competent

national court, and the Commission does not have at its disposal any

material which would allow it to form any opinion of its own on how

this question was evaluated by the District Court judge. As regards

the hearing of the applicant's husband, the Commission notes that the

provision in Section 17 para. 4 of the Act is not of any absolute

character and that exceptions are permitted in Dutch practice.

Finally, the Commission considers that the rules that a registrar

should be present and a procès-verbal should be drawn up are closely

connected with the holding of a hearing and that no hearing was held

in the present case.

Conclusion

101. The Commission concludes unanimously that there has been a violation of

Article 5 para. 1 (Art. 5-1) of the Convention in that the applicant was not

heard by the judge before he decided on her detention.

C. As regards Article 5 para. 2 (Art. 5-2) of the Convention

102. This provision reads:

"Everyone who is arrested shall be informed

promptly, in a language which he understands, of the

reasons for his arrest and of any charge against him."

103. The applicant claims that Article 5 para. 2 (Art. 5-2) was violated

because she was not promptly informed of the decision of 18 November 1983

ordering her detention in the psychiatric hospital where she was, up to that

date, treated on a voluntary basis. The Government admit that the applicant

should have been so informed. The Government consider, however, that the

failure to inform her of the judge's decision of 18 November 1983 violated

Article 5 para. 4 (Art. 5-4) , as opposed to Article 5 para. 2 (Art. 5-2), and

that in any event the applicant suffered no disadvantage as a result because

she left the hospital on 26 January 1984. In addition it is pointed out that

as of 31 January 1984 the applicant's discharge on probation was ordered.

104. The European Court of Human Rights has so far left open the question

whether Article 5 para. 2 (Art. 5-2) applies only to arrest for a criminal

charge as might be deduced from the wording of that provision: "... shall be

informed ... of the reasons for his arrest and of any charge against him." In

the case of X v. United Kingdom it considered that the issue under Article 5

para. 2 (Art. 5-2) was absorbed by the fact that a violation was found of

Article 5 para. 4 (Art. 5-2), a provision which also required that an arrested

person be apprised of the reasons for his or her arrest in order to be in a

position to take proceedings with a view to determining the lawfulness of his

or her detention (judgment of 5 November 1981, Series A no. 46, p. 28 para.

66).

105. The Commission maintains its opinion which it already expressed in the

aforementioned case that the protection offered by paragraph 2 of Article 5

(Art. 5-2) extends to all forms of arrest effected in accordance with any of

the provisions in sub-paragraphs (a) to (f) of Article 5 para. 1 (Art. 5-1).

The Commission further considers that, although Article 5 para. 2 (Art. 5-2)

refers to "the reasons for his arrest", it must be implied that an arrested

person should also be informed of the fact of his arrest insofar as the arrest

does not already appear clearly from the factual situation.

106. However, the question arises whether, on the basis of the

finding of the Court in the case of X v. United Kingdom (see above in

para. 104), the issue under Article 5 para. 2 (Art. 5-2) should also in the

present case be considered to be absorbed by the wider issue under

Article 5 para. 4 (Art. 5-4).

107. The Commission notes, in this regard, an important difference

between the two cases in that the failure to inform the present

applicant did not only concern the reasons for her deprivation of

liberty but also the fact itself that she was deprived of her

liberty. The applicant had been admitted to the hospital as a

voluntary patient, and it did not appear from any changes in her

factual situation that she was, from a certain moment, in the hospital

on a non-voluntary basis. The Commission considers it to be a

fundamental requirement that a person who is deprived of his liberty

should be made aware of this fact, and the purpose of this requirement

is not only to make it possible for the person concerned to challenge

the lawfulness of the deprivation of liberty but also, in general, to

make him aware of an important change of his status. Consequently, the

Commission considers that, in the present case, the issue under Article 5 para.

2 (Art. 5-2) is not absorbed by the issue under Article 5 para. 4 (Art. 5-4)

and that the failure to inform the applicant of her deprivation of liberty

constituted a violation of Article 5 para. 2 (Art. 5-2).

Conclusion

108. The Commission concludes unanimously that there has been a

violation of Article 5 para. 2 (Art. 5-2) of the Convention.

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

109. This provision reads:

"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."

110. The applicant has alleged that this provision has been

breached in two respects, namely:

a. in that she was not informed of the decision to detain her,

and

b. in that her request of 6 December 1983 for her discharge was

not decided speedily by the Regional Court whose decision was not

given until five months later, i.e. on 7 May 1984.

111. The Government have admitted that Article 5 para. 4 (Art. 5-4) has

been violated on the ground that the applicant had not been immediately

informed of the decision ordering her detention. They consider, however, that

there has been no further violation of that provision by reason of delay in

deciding on the applicant's request of 6 December 1983. They point out that the

whole period up to 7 May 1984 should not be taken into account, since the

applicant left the hospital already on 26 January 1984 and was from that date

no longer deprived of her liberty.

112. The Commission first notes the judgment of the Court in the

case of X v. United Kingdom according to which Article 5 para. 4 (Art. 5-4)

requires that an arrested person be apprised of the reasons for his arrest in

order to be able to take proceedings with a view to determining the lawfulness

of his detention (judgment of 5 November 1981, Series A no. 46, p. 28

para. 66).

113. The Commission recalls that in the present case it has found

that the failure to inform the applicant of her detention constituted

a violation of Article 5 para. 2 (Art. 5-2) of the Convention, and it also

indicated the reasons why in this case the issue under Article 5

para. 2 (Art. 5-2) should not be considered as absorbed by the issue under

Article 5 para. 4 (Art. 5-4) (see para. 107 above).

114. It is nevertheless obvious that the failure to inform the

applicant of her detention in the hospital as from 18 November 1983

had a special relevance in regard to her right under Article 5

para. 4 (Art. 5-4) to take proceedings to challenge the lawfulness of her

detention. In fact, since she was not aware of her detention, she was

unable, for some time, to take any such proceedings.

115. Consequently, the Commission finds no reason to depart from

the case-law of the Court in the case of X v. United Kingdom, and it

considers that the failure to inform the applicant about her detention

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

116. After the applicant had become aware that she was detained,

she requested her discharge on 6 December 1983. The request was

refused by the board of the hospital on 15 December 1983 and was then,

through the Public Prosecutor, brought before the Regional Court of

The Hague. The Court decided on 7 May 1984 to discharge her, but the

applicant had already on 26 January 1984 left the hospital without

permission, and she had been provisionally discharged as from

31 January 1984.

117. The Commission considers that, in the examination of whether a

decision was taken speedily on her request, only the time should be

considered during which she was actually deprived of her liberty, i.e.

the period from 6 December 1983 to 26 January 1984. However, since

the applicant had not been heard by the judge before the detention

order was issued, and since the making of her request for discharge

might well have been substantially delayed by the failure to inform

her of the detention order, there were special reasons to avoid any

further delay in the examination of her request of 6 December 1983.

In these circumstances, and since no specific elements have been

invoked which could justify the fact that on 26 January 1984, i.e.

about seven weeks after the request was made, no decision had yet been

taken by the Regional Court, the Commission considers that the

decision on the lawfulness of the applicant's detention was not taken

speedily within the meaning of Article 5 para. 4 (Art. 5-4).

Conclusion

118. The Commission concludes unanimously that there has been a

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

E. As regards Article 6 para. 1 (Art. 6-1) of the Convention

119. The relevant parts of Article 6 para. 1 (Art. 6-1) read as follows:

"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. ..."

120. The applicant has alleged that she did not have a fair hearing

in regard to the decision to detain her in a psychiatric hospital, contrary to

Article 6 para. 1 (Art. 6-1) of the Convention. The Government consider that

regarding her detention, since these proceedings do not concern her "civil

rights and obligations". In particular, the Government have pointed out that

her detention in a psychiatric hospital did not mean that she was deprived of

her capacity to administer her property. The applicant has confirmed that she

retained her capacity in this regard.

121. The Commission considers that proceedings for the

authorisation of 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 parties are agreed, and the Commission accepts, that there

was no such effect in the present case.

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

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

obligations.

Conclusion

123. The Commission concludes unanimously that there has been no

violation of Article 6 para. 1 (Art. 6-1) in the present case.

F. Recapitulation

124. The Commission concludes unanimously that there has been a violation of

Article 5 para. 1 (Art. 5-1) of the Convention in that the applicant was not

heard by the judge before he decided on her detention (para. 101).

The Commission concludes unanimously that there has been a

violation of Article 5 para. 2 (Art. 5-2) of the Convention (para. 108).

The Commission concludes unanimously that there has been a

violation of Article 5 para. 4 (Art. 5-4)of the Convention (para. 118).

The Commission concludes unanimously that there has been no

violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 123).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Separate opinion by Mr. Trechsel

While I agree with the four conclusions the Commission has

reached in this case - as is shown by the unanimous votes - I am

unable to share the reasoning underlying the finding of a violation of

Article 5 para. 4 as regards the lack of information.

The majority considered the lack of information as an

independent ground for the conclusion that Article 5 para. 4 has been

violated.

I am in agreement with the dissenting opinion of Judge

Evrigenis in the Court's judgment in X v. the United Kingdom (judgment

of 5 November 1981, Series A No. 46) who stressed the autonomous

character of the right to information under Article 5 para. 2.

However in that case, the majority of the Court took a different

position by finding it unnecessary to decide whether or not the

alleged lack of information concerning the reasons for the applicant's

recall to Broadmoor prison constituted a violation of Article 5 para.

2, "especially since the facts of the case are not entirely clear"

(loc. cit., para. 66). The Court emphasized that due to a lack of

information the applicant was not able effectively to exercise his

right under Article 5 para. 4 and therefore found that "there is no

call to rule on the merits of a particular issue which is part of and

absorbed by a wider issue" (loc. cit. in fine).

However, even if one follows the Court's approach, it is

difficult to accept the reasoning by the majority of the Commission in

the present case. Whereas the Court, in my view, gave too little

weight to the right guaranteed by Article 5 para. 2, the Commission

now overstresses it. Not only does it find a violation of the right

to information in itself, but also that such lack of information is a

violation of paragraph 4.

In the present case, where Article 5 para. 2 was rightly

regarded as having been violated, the further violation of Article 5

para. 4 ought to have been based exclusively on the fact that the

applicant's request for release was not decided upon speedily.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

18 May 1984 Introduction of the application

24 April 1985 Registration of the application

Examination of Admissibility

9 October 1985 Commission's deliberations and

decision to invite the Government to

submit observations on the

admissibility and merits of the

application

12 December 1985 Government's observations

6 February 1986 Applicant's observations in reply

16 July 1986 Commission's deliberations

and decision to declare the

application admissible

Examination of the merits

26 August 1986 Decision on admissibility transmitted

to the parties

28 November 1986 Government's observations on the merits

26 March 1987 Applicant's observations on the merits

15 October 1987 Commission's deliberations and

decision to hold an oral hearing

20 January 1988 Oral hearing on the merits

5 July 1988 Commission's consideration of the

draft Report

14 July 1988 Commission's final vote and adoption

of the Report

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van der LEER v. the NETHERLANDS

van der LEER v. the NETHERLANDS

LEXI