Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15672/89

by P.B.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 2 September 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 23 August 1989 by

P.B. against the Netherlands and registered on 23 October 1989 under

file No. 15672/89;

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 1961, and was, when he

introduced the application, detained in a mental hospital in Wolfheze,

the Netherlands. Before the Commission the applicant is represented

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

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

summarised as follows.

As the judicial order (rechterlijke machtiging), on the basis of

which the applicant was detained in a mental hospital would expire on

18 June 1988, the public prosecutor, on 8 June 1988, submitted a

request to the Regional Court (Arrondissementsrechtbank) of Arnhem for

an extension of this order. This request was accompanied by a medical

certificate dated 1 June 1988 by the applicant's treating psychiatrist,

recommending an extension of the judicial order.

On 25 July 1988 the applicant, who was represented by a lawyer,

and his treating psychiatrist were heard by the investigating judge

(rechter-commissaris) on which occasion the applicant's lawyer

requested a second medical opinion.

By interlocutory decision of 4 August 1988 the Regional Court

decided to appoint a second psychiatrist and to invite him to submit

a psychiatric report on the applicant before 29 August 1988. This

psychiatrist submitted his report, recommending an extension of the

judicial authorisation, on 16 August. The report was subsequently

transmitted to the applicant's lawyer.

On 29 August 1988 the applicant, who was represented by his

lawyer, was heard again on the basis of the second medical report.

On 12 September 1988 the Regional Court extended the judicial

order by one year as from 18 June 1988.

The applicant's appeal to the Supreme Court (Hoge Raad) was

rejected on 24 February 1989. The Supreme Court rejected the

applicant's complaint under Article 5 paras. 1 (e) and 4 of the

Convention that he had not been heard within a reasonable time after

the submission of the request to extend his detention in a mental

hospital. The Supreme Court held that in cases of this kind Article

5 para. 4 does not apply as the proceedings at issue concern an

automatic periodical review of a judicial detention order and are not

proceedings instituted by the applicant, challenging his detention, a

possibility of which he could avail himself at any time. The Supreme

Court agreed with the Regional Court that the public prosecutor's

request had not been dealt with as expeditiously as normally desirable,

but considered that the total length of the proceedings was not

unreasonably long in view of the fact that the applicant himself had

requested a second medical opinion, a request which had been granted.

The Supreme Court also upheld the Regional Court's opinion that

the mere lapse of time between the submission of the public

prosecutor's request to extend the judicial order and the hearing

before the Regional Court does not lead to the inadmissibility of the

public prosecutor's request.

DOMESTIC LAW

Article 24 of the Mentally Ill Persons Act (Krankzinnigenwet)

provides, inter alia:

"No more than fourteen and at least eight days before the

expiry of the period for which the Regional Court has

ordered someone's detention in a mental hospital, a request

can be submitted to the Regional Court to extend this

period by a maximum of one year (...)

The detainee in respect of whom an extension of the

judicial order for detention is requested shall remain in

the mental hospital pending the examination by the Regional

Court. (...)"

Article 29 of the Mentally Ill Persons Act provides, inter alia:

"(...) the detainee himself can request the hospital board

to discharge him.

The board seeks the immediate advice of the medical

officer, or, in case there are more than one, of the

medical director of the mental hospital. The advice, to be

submitted as soon as possible, shall be in writing and

shall be reasoned. If it is favourable, discharge will

follow. If it is not favourable, the board will

immediately transmit the request together with the advice

to the public prosecutor at the Regional Court in whose

judicial district the mental hospital is situated. The

public prosecutor shall request a decision by the Regional

Court. The public prosecutor does not have to request the

Regional Court's decision, if the request is evidently ill-

founded, if an earlier request is still pending, or if the

Regional Court has rejected an earlier request pending the

validity of the last judicial order and the circumstances

of the case have not changed since this rejection (...)

After having heard the public prosecutor, the Regional

Court, as highest competent court, orders the discharge or

rejects the request.

(...)

Before the Regional Court takes its decision, it can order

a further investigation. (...) The Regional Court can

request information from one of more experts. Pending the

examination by the Regional Court, discharge will not be

granted.

(...)"

COMPLAINTS

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

Convention that his detention in a mental hospital between 18 June

1988, when the initial judicial order expired, and 12 September 1988,

when the Regional Court decided to prolong the applicant's detention

by one year as from 18 June 1988, was not lawful and not in accordance

with a procedure prescribed by law.

2. The applicant complains under Article 5 para. 4 of the Convention

that it took three months for the Regional Court to take a decision on

the public prosecutor's request to extend the judicial order. He

complains in particular that the domestic courts considered that

Article 5 para. 4 was not applicable to the proceedings at issue.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 August 1989 and registered

on 23 October 1989.

On 7 November 1990 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.

The Government's observations were submitted on 4 April 1991.

On 9 April 1991 the Commission decided to refer the application

to the Second Chamber.

The applicant's observations in reply were submitted on

10 June 1991.

THE LAW

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

of the Convention that his detention in a mental hospital between 18

June 1988 and 12 September 1988 was not in accordance with a procedure

prescribed by law and under Article 5 para. 4 (Art. 5-4) of the

Convention that it took the Regional Court three months to decide on

the public prosecutor's request to extend the judicial order, and in

particular that the domestic courts considered that Article 5 para. 4

(Art. 5-4) was not applicable to the proceedings at issue.

Article 5 paras. 1 (e) and 4 (Art. 5-1-e, 5-4) of the Convention,

in so far as relevant, 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,

(...).

4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful."

In respect of the applicant's complaint under Article 5 para. 1

(Art. 5-1) of the Convention the Government are of the opinion that the

applicant's detention between 18 June 1988 and 12 September 1988 in a

mental hospital was in accordance with a procedure prescribed by law.

Article 24 of the Mentally Ill Persons Act provides, inter alia, that

a detainee in respect of whom the extension of a judicial order to

detain him in a mental hospital has been requested, shall remain in

detention pending the decision of the Regional Court. The Government

state that, contrary to the legislation governing hospital orders in

respect of persons placed at the Government's disposal within the

meaning of the Netherlands Penal Code (terbeschikkingstelling), the

Mentally Ill Persons Act does not specify any time limit within which

the Regional Court must reach a decision, but that an extension may be

granted for a maximum of one year, commencing on the expiry date of the

previous judicial order and not on the day on which this extension is

granted by the Regional Court.

The applicant does not dispute the Government's observations in

respect of the Mentally Ill Persons Act. He is, however, of the

opinion that Article 5 para. 1 (e) (Art. 5-1-e) of the Convention does

not allow for a detention period as long as the one at issue, without

the detention being authorised by a court.

Concerning the applicant's complaint under Article 5 para. 4

(Art. 5-4) of the Convention the Government submit that at first sight,

the extension of a hospital order in respect of persons placed at the

Government's disposal within the meaning of the Netherlands Penal Code

and the extension of a judicial order within the meaning of Article 24

of the Mentally Ill Persons Act are sufficiently similar to justify the

conclusion that the latter also falls under Article 5 para. 4

(Art. 5-4). The Government, however, add that the Supreme Court did

not consider Article 5 para. 4 (Art. 5-4) applicable to the present

proceedings as these concern an automatic review at regular intervals

by the judicial authorities to ascertain whether the conditions

pertaining to this deprivation of liberty continue to be valid. The

Government also state that in any event a detainee in a mental hospital

can, at any point in time, request his discharge under Article 29

of the Mentally Ill Persons Act. In case the Commission would consider

Article 5 para. 4 (Art. 5-4) of the Convention to be applicable to the

proceedings at issue, the Government are of the opinion that neither

the fact that the time between the public prosecutor's request and the

first hearing on this request was longer than would generally be

considered desirable nor the duration of the procedure as a whole is

sufficient to justify the conclusion that the Regional Court did not

come to a speedy decision.

The applicant is of the opinion that Article 5 para. 4

(Art. 5-4) is applicable to the present proceedings and argues that the

decision on the lawfulness of his detention was not taken speedily as

required by this provision. In the applicant's view the Government

have provided no justification for the delays which occurred in the

proceedings on the prolongation of the judicial order.

The Commission, having regard to the parties' submissions,

considers that the application raises issues of fact and law which can

only be resolved by an examination of the merits. The application

cannot, therefore, be declared manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

grounds for inadmissibility have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

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