Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22840/93

by Icarus Daedalus Minos VAN EIS

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 March 1994, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, 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 19 October 1993

by Icarus Deadalus Minos VAN EIS against the Netherlands and registered

on 29 October 1993 under file No. 22840/93;

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 1964 and at present

detained in a psychiatric institution at Enschede. He is represented

by Mr. Henri Seegers, a lawyer at Amsterdam.

The facts as presented by the applicant may be summarised as

follows.

On 17 May 1988, the Regional Court (Arrondissementsrechtbank) of

Haarlem sentenced the applicant for attempted manslaughter to one year

and six months' imprisonment and to subsequent placement at the

disposal of the authorities for the purpose of psychiatric treatment

(terbeschikkingstelling).

After the applicant had served his imprisonment, he was

transferred to a psychiatric institution. He absconded from that

institution but was arrested and brought back to the institution. As

a result of his absence from the institution, his first period of

internment expired on 24 November 1991.

On 4 December 1991, the Regional Court of Haarlem decided to

prolong the period of internment by one year, which meant that the

period expired on 24 November 1992. On 16 April 1992, this decision

was confirmed by the Court of Appeal (Gerechtshof) of Arnhem.

On 14 October 1992, the public prosecutor submitted to the

Regional Court a request for a further prolongation of the period of

internment. On 22 October 1992, the Regional Court decided that the

request should be examined on 30 November 1992. Subsequent to the

hearing which was held on that day, the Regional Court decided, on

7 December 1992, to prolong the period of internment for another year.

In his appeal to the Court of Appeal, the applicant asked for the

decision of prolongation to be quashed on the ground that the Regional

Court had not examined the request for prolongation until after the

previous period of internment had ended.

In its decision of 8 June 1993 the Court of Appeal rejected the

appeal, stating as follows:

"The request for prolongation of the period of placement at

the disposal of the authorities was submitted to the registry of

the Regional Court of Haarlem on 14 October 1992. On 22 October

1992, the Regional Court decided that this request should be

dealt with on 30 November 1992, whereupon the decision appealed

against was rendered on 7 December 1992. The period of placement

at the disposal of the authorities expired on 24 November 1992.

The Court of Appeal considers that the request was

submitted on time and that the Regional Court took its decision

on the request within the time-limit laid down in Section 509 t,

first paragraph, of the Code of Criminal Procedure. Having

regard to the fact that, according to the provision in Section

509 q of the said Code, the placement at the disposal of the

authorities remains in force as long as there is no final

decision on the request for prolongation, the applicant's

argument must be rejected, even though it would have been

desirable to deal with the request for prolongation before

24 November 1992."

RELEVANT DOMESTIC LAW

According to Section 37 a of the Penal Code (Wetboek van

Strafrecht) an accused who, when committing an offence, suffered from

a mental deficiency or derangement can, on certain specified

conditions, be placed at the disposal of the authorities. Section 37 b

provides that the judge can decide that such a person shall receive

treatment which, according to Sections 37 c and 37 d, can be provided

in various public or private institutions.

According to Section 38 d of the Penal Code, the initial

placement at the disposal of the authorities shall be for a period of

two years, which may be prolonged, at the request of the public

prosecutor, for further periods of one or two years.

The prolongation procedure is regulated by Sections 509 o to

509 u of the Code of Criminal Procedure (Wetboek van Strafvordering).

According to Section 509 o, the public prosecutor's request for

prolongation shall be submitted at the earliest two months and at the

latest one month before the date on which the running period of

internment ends. According to Section 509 t, the Regional Court shall

decide on such a request as soon as possible and not later than two

months after the date on which the request was submitted.

It is further provided in Section 509 q of the Code of Criminal

Procedure that, as long as there is no final decision on the request

for prolongation, the placement at the disposal of the authorities

remains in force. Moreover, where the request is granted after the

date on which the placement at the disposal of the authorities would

have ended if no request for prolongation had been made, the new period

of placement shall be calculated as from that date.

COMPLAINT

The applicant alleges a violation of Article 5 para. 1 of the

Convention in that, during the period from 24 to 30 November 1992, he

remained interned in a psychiatric institution although during that

period there was no judicial decision which authorised his detention.

THE LAW

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

of the Convention on the ground that there was no judicial decision

authorising his detention from 24 to 30 November 1992.

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

a. the lawful detention of a person after conviction by

a competent court;".

The Commission notes that the applicant was interned in a

psychiatric institution under a court order which expired on

24 November 1992 and that the public prosecutor had requested its

prolongation on 14 October 1992. The Regional Court, however, dealt

with the public prosecutor's request at a hearing on 30 November 1992

and it granted the request for prolongation on 7 December 1992.

According to Section 509 t of the Dutch Code of Criminal

Procedure, the Regional Court must decide on a request for prolongation

within a period of two months, and since under Section 509 o of the

same Code the public prosecutor may submit his request up to one month

before the expiry of the previous period of detention, it follows that

in some cases the Court's decision may be taken after the expiry of

that period. However, this situation has been specifically foreseen

in Section 509 q of the Code, which provides that, where there is no

final decision on a request for prolongation, the previous decision

which authorises detention remains in force.

In these circumstances, the Commission considers that the

applicant's detention from 24 November to 7 December 1992 was a lawful

detention satisfying the requirements of Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention.

It follows that the application is 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

(K. ROGGE) (S. TRECHSEL)

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VAN EIS v. THE NETHERLANDS

VAN EIS v. THE NETHERLANDS