Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15942/90

by D.R.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 October 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H. G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

Mr. K. ROGGE, Secretary to the Second 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 21 August 1989 by

D.R. against the Netherlands and registered on 4 January 1990 under

file No. 15942/90;

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

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 6 March 1992 and the applicant's observations submitted

on 1 May 1992;

Having deliberated;

Decides as follows:

THE FACTS

A. Particular circumstances of the case

The applicant is a Dutch citizen born in 1970. At the time of

the introduction of the application, he was detained at the State

Institution for Youngsters (Rijksinstituut voor Jongeren), an

institution for special treatment, in the "Lloyd Hotel" in Amsterdam,

the Netherlands. Before the Commission he is represented by Mr. Th.

de Roos, a lawyer practising in Amsterdam.

The facts as submitted by the parties may be summarised as

follows.

On 6 January 1986 the Amsterdam Regional Court

(Arrondissementsrechtbank), which included the Juvenile Judge,

sentenced the applicant on the basis of Article 77k of the Penal Code

(Wetboek van Strafrecht) to placement in an institution for special

treatment (inrichting voor buitengewone behandeling) on charges of

manslaughter. This decision was based on a medical report recommending

this measure following an examination of the applicant's personality

which revealed a mental deficiency. On 9 June 1986 the applicant was

transferred from the "Lloyd Hotel" in Amsterdam, where he had been

detained since 4 September 1985, to the State Institution for

Youngsters "Op de Berg" in Amersfoort, the Netherlands. Eventually,

the institution "Op de Berg" was closed and the applicant was

re-transferred to the "Lloyd Hotel" on 16 May 1988. From there he was

illegally absent from 27 March 1989 until 28 June 1989.

After filing a prolongation request on 6 June 1989, the Public

Prosecutor (Officier van Justitie) summoned the applicant on 8 June

1989 to appear before the Amsterdam Regional Court in order to have his

detention prolonged. Pursuant to Articles 214 and 220 of the Child

Welfare Implementation Order (Uitvoeringsbesluit Kinderbescherming),

the Ministry of Justice (Ministerie van Justitie) provided the Public

Prosecutor with several reports emanating from the institution for

special treatment in which the applicant was detained concerning the

progress of the treatment. On the basis of these reports and in

accordance with the Public Prosecutor's request of 6 June 1989, the

Regional Court prolonged the applicant's detention by judicial order

(rechterlijke beschikking) on 15 June 1989. At the hearing the

applicant's representative objected that the applicant's detention was

unlawful since the initial order had expired and that therefore no

prolongation could be ordered, as the Public Prosecutor introduced his

prolongation request more than 2 years after the initial order. The

Regional Court held that such an interpretation was not in accordance

with the law. It ruled that in the present case the applicant's

interest prevailed over the formal time-limit set forth in Article 77r

of the Penal Code.

The applicant was not present at this hearing as he had absconded

on 27 March 1989.

On 21 July 1991 the measure of placement in an institution for

special treatment ended as the applicant had reached the age of 21.

B. Relevant domestic law and practice

Placement in an institution for special treatment is a measure

which a court can impose on a minor who suffered from a mental

deficiency or a mental illness when committing the offence he is

charged with (Article 77k of the Penal Code).

The judicial review and the conditions under which the measure

may be ended are governed by Article 77r of the Penal Code which

provides as follows:

"Art.77r. 1. De maatregel van plaatsing in een inrichting

voor buitengewone behandeling eindigt uiterlijk op het

tijdstip waarop de veroordeelde de leeftijd van

eenentwintig jaren heeft bereikt.

2. De plaatsing kan te allen tijde van regeringswege

voorwaardelijk of onvoorwaardelijk worden beëindigd.

3. Voor zover de plaatsing niet eerder van regeringswege

onvoorwaardelijk is beëindigd, onderzoekt de rechter die de

maatregel heeft opgelegd telkens na verloop van twee jaren,

of de plaatsing door het belang van de veroordeelde nog

wordt gevorderd. Het openbaar ministerie brengt de zaak

tijdig aan. De rechter beslist zo spoedig mogelijk.

Indien het onderzoek daartoe aanleiding geeft, wordt de

plaatsing door de rechter voorwaardelijk of

onvoorwaardelijk beëindigd."

"1. The measure of placement in an institution for special

treatment expires at the very latest on the moment when the

convict reaches the age of twenty-one.

2. The placement can be terminated conditionally or

unconditionally at any point in time by the Government.

3. Insofar as the placement has not been terminated

unconditionally by the Government, the court which imposed

the measure shall examine every second year whether the

interests of the convict still require his placement. The

Public Prosecutor shall start the proceedings on time. The

court shall decide as soon as possible. Should the

examination of the case call for termination of the

placement the court will order so conditionally or

unconditionally."

According to Articles 220 and 214 of the Child Welfare

Implementation Order, the Minister of Justice sends to the Public

Prosecutor at the court which ordered the measure a report on the

progress of the detention, at the very latest two months before the

expiry of the two year period.

The Public Prosecutor will forward this report to the court when

introducing the review proceedings.

COMPLAINTS

1. The applicant complains that he was unlawfully detained since the

Public Prosecutor exceeded the statutory time-limit for introducing

prolongation proceedings. He invokes Article 5 para. 1 of the

Convention.

2. He also complains under Article 5 para. 4 of the Convention that

in view of this delay, even when deducting the period he had absconded,

the lawfulness of his detention was not speedily reviewed by the

Regional Court.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 August 1989 and registered

on 4 January 1990.

On 2 December 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the application

with regard to the issues under Article 5 paras. 1 and 4 of the

Convention concerning the lawfulness of the applicant's detention.

The Government's observations were received by letter dated 6

March 1992.

On 30 March 1992 the Commission referred the application to the

Second Chamber.

The applicant's observations were received by letter dated 1 May

1992.THE LAW

1. The applicant complains under Article 5 para. 1 (Art. 5-1) of the

Convention that as the Public Prosecutor failed to introduce

prolongation proceedings on time, his detention was unlawful.

The Government argue that according to Article 77r para. 1 of the

Penal Code the measure of placement in an institution for special

treatment expires automatically when the detainee reaches the age of

twenty-one. Unless the Government or the court suspends the measure

in the meantime, the detention is valid and lawful from the moment it

has been ordered until its automatic expiry. In the present case the

applicant's detention was therefore lawful notwithstanding the unusual

delay in the review proceedings.

The applicant submits that pursuant to Article 77r para. 3 of the

Penal Code, the necessity of his detention ought to have been reviewed

by the competent court within two years after the initial placement

order. However, the Public Prosecutor brought the review proceedings

31/2 years after the initial order, thus rendering his detention unlawful

after the expiry of the initial two year period. He further refers to

the Wassink judgment (Eur. Court H.R., Wassink judgment of 27 September

1990, Series A no. 185-A) and submits that the European Court of Human

Rights requires in the light of Article 5 para. 1 (Art. 5-1) strict

compliance with the relevant provisions of domestic law governing

detention.

2. The applicant further complains under Article 5 para. 4

(Art. 5-4) that the Regional Court did not speedily review the

lawfulness of his detention, even when taking into account the period

when he absconded.

The Government submit that the judicial review required by para.

4 of Article 5 (Art. 5) is incorporated in the initial detention order

of 6 January 1986. However, the applicant had the same possibility as

adults placed at the Government's disposal to request his release in

summary proceedings.

The applicant argues that instituting summary proceedings (kort

geding) on the basis of Article 1401 of the Civil Code (Burgerlijk

Wetboek) would not have provided any redress since such proceedings are

not an appeal. Moreover the findings of the European Court of Human

Rights in the Keus case (Eur. Court H.R., Keus judgment of 25 October

1990, Series A no. 185-C) do not apply to the present case which

concerns a minor.

3. The Commission considers that the application raises important

issues of law, in particular pertaining to the observance of the

guarantees contained in Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the

Convention, which can only be determined in an examination of the

merits of the case. No grounds for inadmissibility have been

established.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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R. v. THE NETHERLANDS

R. v. THE NETHERLANDS

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