Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14422/88

by S.W.

against the Netherlands

The European Commission of Human Rights (Second Chamber) sitting

in private on 13 January 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 RUIZ

L. LOUCAIDES

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 20 September 1988

by S.W. against the Netherlands and registered on 1 December 1988 under

file No. 14422/88;

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 1954 and residing in

Amsterdam. When introducing the application, he was detained for

treatment at the Provincial Hospital in Santpoort, the Netherlands.

Before the Commission he is represented by Mr. G.P. Hamer, a lawyer

practising in Amsterdam.

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

summarised as follows:

On 16 March 1988, the applicant's brother requested the District

Court judge (Kantonrechter) in Amsterdam to issue a judicial

authorisation (rechterlijke machtiging) to place the applicant in a

mental hospital on the basis of Article 12 of the Mentally Ill Persons

Act (Krankzinnigenwet). This request was accompanied by, inter alia,

a medical declaration of 16 March 1988 by a psychiatrist of the G.G.

& G.D. (Municipal Medical and Health Authority) in Amsterdam and a

letter dated 10 March 1988 by the applicant's own psychiatrist F.J.,

addressed to the G.G. & G.D., which reads, insofar as relevant:

"Patient is known by us since 1985 with a schizophrenic

psychosis. (...)

Patient's situation worsens. Patient causes his close

environment trouble, in particular his downstairs

neighbours. It is a matter of a mostly manifest psychotic

perception, in which a complex delusionary system with a

paranoid colour is predominant. Patient manifests himself

again desperate the last months, yet sofar no suicidal

actions. In the meantime patient has become entirely

isolated socially.

There have been regular reportings at the police office

A.J. Ernststraat (local police officer O.), on a number of

occasions the G.G. & G.D. made a house-call related to

escalations.

Despite constant urging, patient refuses to undergo the, in

his circumstances necessary (in first instance medicinal),

treatment, although he is reasonably faithful and punctual

concerning the appointments with the present author.

Questions:

I hereby request you to visit patient, in order to judge

whether in his situation there are enough criteria to

request a judicial authorisation for admission. My most

important argument for this is that within the foreseeable

future patient's way of life, based on his paranoid

psychosis, will lead to suicidal or homicidal action.

If necessary, patient's brother (...) is willing to support

the authorisation request.

I am gladly willing to accept further consultation, patient

is informed and agrees with my intention to arrange for a

G.G.D. home visit concerning a second opinion and a

possible request for a judicial authorisation. I warn you

beforehand for patient's skill to mask his paranoid

thinking system "in emergencies", namely whenever he

considers this wise."

On 18 March 1988, the District Court judge appointed a lawyer for

the applicant and held a hearing at the District Court, where the G.G.

& G.D. psychiatrist, the brother of the applicant and the applicant's

lawyer were present. After this hearing, the judge, accompanied by the

psychiatrist and the lawyer, heard the applicant at home. On this

occasion also a former local police officer and the downstairs

neighbour were heard. Afterwards, the District Court judge adjourned

the case until 23 March 1988.

On 23 March 1988 the District Court judge heard the lawyer of the

applicant. On 24 March the District Court judge contacted the

applicant's psychiatrist F.J. by telephone on the basis of the latter's

above letter of 10 March 1988. The judge wrote a note on this

telephone conversation which reads, insofar as relevant:

"Short report on a telephone conversation of Mr. S. with

F.J. on 24 March 1988 concerning the state of health of W.

J., psychiatrist, (...) knows patient W. almost 2 years.

J. considers the situation serious, especially the

homicidal remarks with respect to coach H.

The patient uses a psychosis as protection against interior

and exterior fears. He is unreliable in his remarks

relating to problem solutions and the taking of medicines

on a volountary basis. He will not do the latter.

Medication is very necessary because through this

improvement can be expected if improvement is possible at

all. Possibly by way of intramural medication some result

can be reached."

On the same day the District Court judge issued a judicial

authorisation to place the applicant in a psychiatric hospital, without

having further heard the applicant or his lawyer. A copy of the

judicial authorisation was sent to the applicant's lawyer on 25 March

1988. On 28 March 1988 the police brought the applicant to the

Provincial Hospital in Santpoort, without informing him of the reasons.

Only after a considerable time the applicant learnt of the judicial

authorisation. He subsequently consulted a lawyer and requested the

Board of the Hospital on 14 June 1988 to discharge him.

Following a negative recommendation by the Medical Director, the

Hospital Board rejected the request and transmitted the request by

letter of 28 June 1988 to the public prosecutor. On 14 July 1988 the

public prosecutor submitted the request to the Regional Court

(Arrondissementsrechtbank) for a decision. On 10 August 1988 the

Regional Court should deal with the request. However, on 9 August 1988

the judicial authorisation was lifted by the Hospital Board as a result

of a recommendation for discharge by the responsible medical officer.

The request to the Regional Court was consequently withdrawn.

RELEVANT DOMESTIC LAW AND PRACTICE

Article 12 of the Mentally Ill Persons Act (hereinafter referred

to as "the Act") enables, amongst others, a close relative of a

mentally ill person to apply in writing to the District Court judge for

an authorisation to have that person placed temporarily in a mental

hospital in the interests of public safety or of the person concerned.

Article 16 of the Act requires that such an application be

accompanied by a reasoned medical declaration by a qualified doctor who

has specialised in mental and nervous disorders. This declaration must

be to the effect that the patient is mentally ill and that treatment

in a mental hospital is necessary or desirable.

The judge will issue the requested order authorising provisional

detention if the medical declaration, either on its own or in

conjunction with the facts related or the documents submitted,

adequately establishes that treatment in a psychiatric hospital is

"necessary or desirable" (Article 17 of the Act). The Supreme Court

of the Netherlands has interpreted this expression as meaning that the

patient must represent a danger to himself, to others or to the general

public order, to such an extent that it is necessary or desirable that

he be treated in a psychiatric clinic (judgment of 4 November 1983,

Nederlandse Jurisprudentie (NJ) 1984, no. 162).

The judge is obliged to hear the person whose confinement is

sought unless he concludes from the medical declaration that this would

be devoid of purpose or medically inadvisable (Article 17 of the Act).

The judge must, "so far as possible", seek information from,

amongst others, the person who made the application for confinement

(Article 17 of the Act).

The confinement order may not be appealed against and is not

served upon the person concerned (Article 17 of the Act). Its renewal

must be sought within six months of the day on which it was made

(Article 22 of the Act).

The Dutch Supreme Court has held that, in view of the importance

of having up-to-date information as a basis for a confinement decision,

the judge may be justified in using information obtained by telephone.

He must, however, communicate any such information to the person

concerned or his counsel in order to enable them to comment on it. The

Supreme Court has quashed a number of decisions on account of a failure

to comply with this requirement (cf. the judgments of 4 January, 10 May

and 7 June 1985, NJ, nos. 336, 665 and 718).

It appears from a judgment of 1 December 1989 (NJ 1990, no. 438)

that the case-law on the subject may be summarised as follows:

1. if a judge obtains information by telephone, he must

ensure that it is taken down in writing;

2. (a) in principle, the judge must not make use of such

information unless he has advised the person concerned or

his counsel of its substance and has given them sufficient

opportunity to comment on it;

(b) this may also be done by telephone;

3. the decision or the documents of the court proceedings

must show that the requirements referred to under 2 (a)

have been met;

4. only under special circumstances may the judge decide

not to observe the rule referred to unde 2(a);

5. in such cases the reasons must be stated so as to enable

the Supreme Court to assess whether rule 4 has been

complied with;

6. if a statement taken by telephone contains information

concerning points that are essential for the decision and

the judge has not unequivocally discounted that statement

in his decision, it must be assumed that the judge made use

of that information when reaching his decision.

Article 19 of the Act enables a patient at any time to request

the Board of the mental hospital to discharge him. The Board must

immediately consult the medical director of the hospital. In case the

medical director's opinion is unfavourable, the Board has to transmit

the request, together with the opinion, to the public prosecutor. The

public prosecutor forwards the request to the Regional Court for

decision, unless he is of the opinion that the request for discharge

is evidently ill-founded, or when an earlier request has been rejected

by the Regional Court pending the validity of the last judicial

authorisation and the circumstances have not changed since this

rejection.

COMPLAINTS

1. The applicant complains that the District Court judge issued the

judicial authorisation after having contacted the applicant's

psychiatrist and without having given the applicant or his lawyer an

opportunity to learn of or to contest the information thus obtained.

The applicant submits that the medical declaration of 16 March 1988

stated that treatment in a psychiatric hospital was necessary or

advisable. According to the applicant it was not possible for the

District Court judge to conclude therefrom that treatment was

necessary. The applicant furthermore complains that the proceedings

concerning the issue of the judicial authorisation took place behind

closed doors; that he was not informed in time of his right to have the

assistance of a lawyer; that in the meantime a lawyer had already been

appointed; that he had insufficient time to prepare his case; that he

was not informed that his brother was heard by the District Court judge

and that he had no opportunity to question his brother; and that his

request for discharge from the hospital of 14 June 1988 was only to be

considered by the Regional Court on 10 August 1988.

The applicant invokes Article 5 paras. 1 and 4 and Article 6

para. 1 of the Convention.

2. The applicant also complains that he was not promptly informed

of the judicial authorisation when the police brought him to the

psychiatric hospital. He invokes Article 6 para. 1 in conjunction with

Article 5 para. 2 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 September 1988 and

registered on 1 December 1988.

On 25 February 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.

On 9 April 1991 the Commission referred the application to the

Second Chamber.

The Government submitted their observations on 17 May 1991 and

the applicant's observations in reply were submitted on 11 June 1991.

THE LAW