Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26331/95

by J.G.F.R.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 August 1994 by

J.G.F.R. against the Netherlands and registered on 27 January 1995

under file No. 26331/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1974, and is currently

detained. Before the Commission he is represented by Mr. G. Ris, a

lawyer practising in Dordrecht, the Netherlands.

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

summarised as follows.

A. Particular circumstances of the case

Joint criminal proceedings were instituted against the applicant

who was charged with being an accomplice to manslaughter and with

aggravated theft. These offences were committed at different times when

the applicant had absconded from the institution for psychiatric

treatment of juvenile offenders (Inrichting voor Buitengewone

Behandeling) where he had been placed pursuant to a decision of

12 November 1990 of the Regional Court (Arrondissementsrechtbank) of

Rotterdam. The prosecution in respect of the charge of aggravated theft

commenced when the applicant was still a minor, whereas at the time the

prosecution in respect of the other charge commenced he had come of

age.

Public hearings took place before the Dordrecht Regional Court

on 16 July, 17 and 18 September 1992. The applicant submits that the

Regional Court established that the indictment in which the applicant

was charged with both offences contained a mistake which would have

entailed its nullity. However, contrary to the legal provisions at the

time which did not allow for a correction of the indictment, the

Regional Court permitted the Public Prosecutor to correct the mistake.

This was, however, not recorded in the procès-verbal of the hearing.

On 1 October 1992, the Regional Court acquitted the applicant of

the charges of theft, but convicted him of being an accomplice to

manslaughter, sentenced him to four years' imprisonment and ordered his

subsequent placement at the disposal of the Government

(terbeschikkingstelling) during which time he was to receive treatment

(verpleging).

Both the applicant and the Prosecutions Department filed an

appeal against the Regional Court's decision with the Court of Appeal

(Gerechtshof) of The Hague. Meanwhile, on 25 January 1993, the

Rotterdam Regional Court extended the applicant's placement in the

institution for psychiatric treatment of juvenile offenders, taking

into account, inter alia, the fact that he had been convicted for being

an accomplice to manslaughter committed at a time when he had absconded

from the institution.

As regards the criminal proceedings, a hearing before The Hague

Court of Appeal was held on 5 March 1993 and commenced in camera. The

applicant was told that he had the right to remain silent and his

defence counsel raised an objection regarding the procès-verbal of the

hearing before the Regional Court, which, he submitted, was incorrect

as it did not mention that the prosecution had been allowed to correct

a mistake in the indictment which should have entailed its nullity. The

Court of Appeal rejected this objection and decided to separate the

charges. It quashed the Regional Court's decision in respect of the

charge of aggravated theft and referred this case back to the Regional

Court, holding that this latter court should have tried the applicant

in camera given that he had been a minor at the time the prosecution

for this offence had commenced.

The Court of Appeal subsequently ordered the doors to be opened

and continued the hearing in respect of the charge of complicity to

manslaughter. The applicant and two expert-witnesses were heard before

the hearing was adjourned to enable the expert-witnesses to report on

the applicant's personality. The hearing was resumed on 28 May 1993.

On 11 June 1993 the Court of Appeal quashed the Regional Court's

judgment also in respect of the charge of complicity to manslaughter.

It convicted the applicant of this offence, sentenced him to six years'

imprisonment and ordered his subsequent placement at the disposal of

the Government during which time he was to receive treatment.

The applicant filed an appeal in cassation against this last

decision. He argued, inter alia, that the prosecution should have been

declared inadmissible by the Court of Appeal since the criminal charge

at issue, i.e. complicity to manslaughter, had already been determined

by the Rotterdam Regional Court in its decision extending his placement

in an institution for psychiatric treatment of juvenile offenders.

The applicant further complained of the proceedings before the

Court of Appeal which had begun in camera, preventing counsel from

raising his objections as regards the procès-verbal in public. He

finally alleged that the Court of Appeal had wrongly concluded that the

applicant suffered from a mental deficiency or derangement and that he

should therefore not have been placed at the disposal of the Government

to undergo enforced psychiatric treatment.

The Supreme Court (Hoge Raad) rejected the appeal in cassation

on 15 February 1994. On 14 August 1994 the applicant submitted a copy

of his application to the Commission to the Supreme Court and requested

the latter to reconsider its decision in view of the contents of the

application. The applicant submits that as long as the Supreme Court

does not reconsider its decision, domestic remedies must be considered

to have been exhausted.

B. Relevant domestic law and practice

In the Netherlands, where majority is reached at the age of

eighteen, juvenile penal law and criminal procedure provide for

exceptions to the general law.

Juvenile criminal procedure applies if the suspect has not yet

reached the age of eighteen when a prosecution against him is commenced

pursuant to Section 487 of the Code of Criminal Procedure (Wetboek van

Strafvordering, hereinafter referred to as CCP). Juvenile criminal

proceedings are held in camera unless there are co-accused who had

reached the age of eighteen at the time the prosecution commenced

(Section 500f CCP).

Juvenile penal law differs from regular penal law in that it has

its own system of punishments (straffen, Section 77g Criminal Code,

hereinafter referred to as CC) and curative or protective measures

(maatregelen, Section 77h CC). One of these measures is committal to

an institution for psychiatric treatment of juvenile offenders. This

is a curative measure applied only to young persons with impaired

mental development or suffering from a serious mental disturbance

(Section 77k CC). If the interests of the person concerned so require,

the placement may be extended after every two years but it will end at

the age of twenty-one.

Under regular penal law, placement at the disposal of the

Government may be imposed on the accused who, at the time of committing

an offence, suffered from a mental deficiency or derangement (Section

37a CC). In deciding on this matter, account is taken of advice and

reports concerning the personality of the accused as well as of the

seriousness of the offence and the number of previous convictions. A

judge may further decide that a person placed at the disposal of the

Government shall receive treatment at the Government's expense

(verpleging, Section 37b CC).

COMPLAINTS

The applicant complains under Article 3 of the Convention that

enforced psychiatric treatment of a person who does not suffer from a

mental deficiency or derangement amounts to torture.

The applicant further complains that his conviction by the Court

of Appeal violated the principle of "ne bis in idem" in that he had

already been punished for the offence of complicity to manslaughter

when the Rotterdam Regional Court decided to extend his placement in

an institution for psychiatric treatment of juvenile offenders. In this

respect he argues that this principle is enshrined in Article 6 of the

Convention and that Article 4 of Protocol No. 7 serves merely as a

clarification of that provision.

As regards Article 6 of the Convention, the applicant also

complains that part of the proceedings before the Court of Appeal were

conducted in camera. This allowed the Court of Appeal not to react in

public to defence counsel's statement that the procès-verbal of the

hearing before the Regional Court was incorrect and that the

prosecution had been allowed to change the indictment although the

indictment should have been declared null and void.

THE LAW

1. The applicant complains that the enforced psychiatric treatment

imposed on him constitutes a violation of Article 3 (Art. 3) of the

Convention, which reads:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission notes in the first place that it does not appear

that the applicant has complied with the obligation contained in

Article 26 (Art. 26) of the Convention to exhaust domestic remedies

since he has not invoked Article 3 (Art. 3), either in form or in

substance, in the domestic proceedings. It can furthermore not agree

with the applicant that domestic remedies should be considered to have

been exhausted by virtue of his request to the Supreme Court to

reconsider its decision in light of the application lodged with the

Commission, as such a request cannot be considered an effective remedy

which needs to be exhausted for the purposes of Article 26 (Art. 26)

of the Convention.

Even assuming that domestic remedies have been exhausted, the

Commission recalls that it is not competent to examine alleged errors

of fact or law committed by national courts, except where it considers

that such errors might have involved a possible violation of the rights

and freedoms set forth in the Convention (cf. No. 21283/93, Dec.

5.4.94, D.R. 77-A, p. 81). In the circumstances of the present case,

where the Court of Appeal reached its decision after having consulted

two expert-witnesses who reported on the applicant's personality, the

Commission finds that such a situation does not occur.

It follows that this aspect of the application is in any case

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further argues that his conviction by the Court of

Appeal amounted to an infringement of the principle of "ne bis in

idem", which, according to the applicant, is enshrined in Article 6

(Art. 6) of the Convention.

The Commission recalls, however, that according to its constant

case-law the Convention guarantees neither expressly nor by implication

respect for this principle (cf. No. 7680/76, Dec. 16.5.77, D.R. 9, p.

190; No. 8945/80, Dec. 13.12.83, D.R. 39, p. 43; and No. 11069/84, Dec.

7.9.89, D.R. 62, p. 5). Given, furthermore, that the Netherlands has

not ratified Protocol No. 7 (P7), the Commission has no competence to

deal with this aspect of the applicant's case, which must be rejected

as being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2).

3. The applicant finally complains that the proceedings before the

Court of Appeal did not comply with the requirements of Article 6

(Art. 6) of the Convention in that he did not have a fully public

hearing.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a ... public hearing ... Judgment

shall be pronounced publicly but the press and public may be

excluded from all or part of the trial ..., where the interests

of juveniles ... so require ... "

The Commission notes that the beginning of the hearing before the

Court of Appeal took place in camera. Given that juvenile criminal

procedure was applicable to one of the charges against the applicant

and having regard to the second sentence of paragraph 1 of Article 6

(Art. 6-1) of the Convention, the Commission finds that this does not

raise an issue under this provision insofar as the proceedings taking

part in camera related to this particular charge.

The Commission observes, however, that when the applicant's

defence counsel complained of the procès-verbal which had been drawn

up following the hearings before the Regional Court, the hearing was

still being conducted in camera. In the applicant's view the Court of

Appeal was in this way able to avoid having to deal with this matter

in public.

It is true that following the opening of the doors, the

proceedings continued rather than recommenced. Thus, the applicant was,

for example, not told again that he had the right to remain silent.

However, it does not appear that the applicant's defence counsel

repeated his complaints concerning the procès-verbal, which would have

necessitated the Court of Appeal to give a reaction in public. Nor does

it appear that he was in any way prevented from doing so.

In the circumstances of the present case the Commission cannot

find that the fact that part of the hearing was conducted in camera

violated the applicant's right to a public hearing within the meaning

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

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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J.G.F.R. v. THE NETHERLANDS

J.G.F.R. v. THE NETHERLANDS

LEXI