Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15519/89

by F.W.

against the Netherlands

The European Commission of Human Rights sitting in private on 6

December 1991, the following members being present:

MM.C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 August 1989 by

F.W. against the Netherlands and registered on 19 September 1989 under

file No. 15519/89 ;

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 1967 and at present

detained in a mental hospital. In the proceedings before the

Commission he is represented by Mr. G.P. Hamer, a lawyer practising in

Amsterdam. The facts, as submitted by the parties, can be summarised

as follows.

On 23 June 1988, the District Court judge (Kantonrechter) of

Zaandam ordered, at the request of the applicant's father, the

provisional detention of the applicant in a mental hospital.

In October 1988, the applicant requested his present lawyer to

represent him in proceedings concerning a possible prolongation of his

detention in December 1988. His lawyer informed the competent Court

authorities and the mental hospital in October 1988 that he was

representing the applicant.

As the judicial order would expire on 23 December 1988, the

Public Prosecutor (Officier van Justitie) in Alkmaar on Friday, 16

December 1988, requested the Regional Court (Arrondissements-

rechtbank) of Alkmaar to extend the applicant's detention for the

period of one year. On the same day, the Regional Court informed the

applicant's lawyer that a judge at the Court would conduct a hearing

concerning the request on Monday, 19 December 1988, at the hospital.

The lawyer, unsuccessfully, submitted a request to postpone the hearing

as he had another hearing on that date.

On 19 December 1988, the judge heard the applicant, his father

and a psychologist at the hospital. Before the hearing started, the

applicant agreed to proceed with the hearing even though his lawyer was

absent, on the condition that his lawyer would be given an opportunity

to comment on the statements given and produced at the hearing. On the

same day, the District Court sent the record of the hearing to the

lawyer, requesting him to submit his comments thereon before 23

December 1988.

As in the meantime the applicant had absconded from the mental

hospital, the lawyer could not communicate with the applicant

concerning any comments to be made. By letter of 21 December 1988, the

lawyer therefore requested the Court to hold a new hearing or

alternatively to extend the time-limit fixed for the submission of his

comments.

Both requests were rejected by the Regional Court in its decision

of 23 December 1988 in which the applicant's detention was prolonged

for a period of one year.

In the decision it was held, inter alia, that the applicant

himself had let it be known beforehand that he would have no objection

to the procedure that followed and that the interest of the applicant

in obtaining a decision at short notice, preventing the applicant's

remaining in uncertainty, which uncertainty in practice is quite

burdensome on psychiatric patients, outweighs the arguments in favour

of an extension of the time-limit for the submission of the lawyer's

comments on the hearing. The Regional Court furthermore mentioned in

a separate paragraph of its decision that, according to information

obtained from the mental hospital by the Court's Registrar, the

applicant had threatened his mother, kicked her car and committed a

burglary after having absconded from the hospital.

On 23 February 1989, the applicant appealed to the Supreme Court

(Hoge Raad) on points of law. The appeal was rejected on 28 April

1989. The Supreme Court held, inter alia, that both the wording and

structure of the Regional Court's decision clearly indicate that the

additional information obtained from the mental hospital by the

Regional Court's Registrar did not influence the Regional Court's

decision.

COMPLAINTS

The applicant complains that the decision to prolong his

detention in a mental hospital was not taken in conformity with the

requirements as set out in Article 5 paras. 1 and 4 and Article 6 para.

1 of the Convention. He submits in particular that the Regional Court

did not respect his wish to be represented by his lawyer as a result

of which his case was not conducted satisfactorily and he did not

receive a fair hearing. The applicant furthermore states that, when

he agreed to a hearing on 19 December 1988 without the presence of his

lawyer, he was unaware of its importance, and that the Regional Court

made use of information obtained after the hearing took place, which

was not communicated to his lawyer.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 August 1989 and registered

on 19 September 1989.

On 25 February 1991, the Commission decided to bring the

application to the notice of the respondent Government and to invite

them pursuant to Rule 48 para. 2 (b) of the Rules of Procedure to

submit observations on its admissibility and merits, in respect of the

complaints under Article 5 paras. 1 (e) and 4 of the Convention

relating to the proceedings concerning the prolongation of the

applicant's provisional detention in a psychiatric hospital.

The respondent Government's observations were submitted on 23 May

1991 and the reply thereto by the applicant on 10 June 1991.

THE LAW

The applicant complains that the decision to prolong his

detention in a mental hospital was not taken in conformity with the

requirements as set out in Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of

the Convention, which read, insofar as relevant:

"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."

The Government first submit that it is primarily the task of

national authorities, in this case the Supreme Court of the

Netherlands, to interpret national law, that the Supreme Court

dismissed the applicant's appeal on 28 April 1989 and that the

proceedings complied fully with the provisions of the Mental Health Act

[Krankzinnigenwet]. The Government conclude that the applicant's

detention was a lawful detention ordered by a court in accordance with

a procedure prescribed by law.

The applicant submits that it is irrelevant whether or not it is

primarily the task of national authorities to interpret national law,

as his rights under the Convention have been violated. The applicant

states that it must have been clear from the medical statements that,

suffering from serious mental disorders, he was not capable of

understanding the consequences of the investigating judge's proposal

and that the Regional Court nevertheless unjustly continued the

proceedings in the absence of his lawyer. The applicant further

submits that he never requested the Regional Court to take a prompt

decision and that his lawyer was only allowed two days to submit

comments on the hearing and that therefore he has been denied enough

time and possibilities to defend himself adequately. The applicant

finally submits that the Regional Court in its decision referred,

although redundantly, to information obtained by telephone from the

mental hospital without having communicated this information to his

lawyer thereby depriving the lawyer of a possibility to submit comments

thereon.

The Commission recalls that the words "lawful" and "in accordance

with a procedure prescribed by law" in Article 5 para. 1 (Art. 5-1) of

the Convention essentially refer to domestic law. It is primarily the

task of the national authorities to interpret domestic law, but insofar

as reference is made to it in the Convention, the Convention organs

have a certain limited jurisdiction to control the manner in which

domestic law is applied on the national level (cf. No. 10680/83, Dec.

14.5.84, D.R. 37 p. 225). In particular, the Convention organs may

verify that there is no arbitrariness in the domestic decisions.

In the present case, the Commission notes that the Regional

Court's decision of 23 December 1988 to proceed with the hearing in the

absence of the applicant's lawyer was taken after the applicant had

agreed thereto. It can moreover be deduced from the wording and

structure of the Regional Court's decision that the additional

information, which the Regional Court mentioned, had not been the basis

of that decision.

Having regard to the circumstances of the case, the Commission

considers that the Supreme Court's finding about the lawfulness of the

decision to prolong the applicant's detention cannot be regarded as

arbitrary or unreasonable. It follows that the applicant's detention

in a psychiatric hospital on the basis of the prolongation decision was

a lawful detention ordered by a court in accordance with a procedure

prescribed by law. The applicant's detention therefore fulfils the

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

Insofar as Artice 5 para. 4 (Art. 5-4) of the Convention is

concerned, the Government submit that the Supreme Court ruled on 24

February 1989 in a similar case, that Article 5 para. 4 (Art. 5-4) was

not applicable as "the Court must examine at reasonable intervals

whether the conditions governing that deprivation of liberty are being

complied with, and since the person who has been forcibly detained may

apply to be discharged under Section 29 of the Mental Health Act". The

Government alternatively submit that the applicant had no objection to

being examined in the absence of his legal counsel, if the official

report of that examination were sent to his counsel, who would then be

in a position to comment on the substance of both the medical notes and

the official report and that in taking an early decision the Regional

Court weighed the consideration that an early decision would be in the

applicant's interests against the arguments speaking in favour of the

lawyer's extension request. The Government also submit that the

additional information on the applicant having absconded from the

mental hospital was explicitly given as a redundant consideration and,

as confirmed by the Supreme Court, did not influence the Regional

Court's judgment, as the decision to prolong the applicant's detention

was based exclusively on the medical and other statements included in

the official report.

The applicant submits that according to the medical statements

the applicant was suffering from serious mental disorders which opinion

is reflected in the wording of the Regional Court's decision whereas

the Regional Court did not examine whether and to what extent the

applicant was capable of understanding the consequences of the

investigating judge's proposition. The applicant further submits that

the Regional Court interpreted an alleged interest of the applicant by

promptly deciding on the matter, whereas the applicant had not

requested a prompt decision. The applicant fails to see why the

requested extension of the time-limit for the lawyer to make

submissions was not granted, as to allow only two days for the

submission of the applicant's comments concerning such a far-reaching

measure in the applicant's life gave the applicant insufficient time

and opportunity to prepare his defence satisfactorily.

The applicant also submits that the Regional Court in its

decision of 23 December 1988 referred to information obtained by

telephone from the mental hospital after the hearing had taken place

and that this information was not communicated to the applicant's

lawyer for possible comments. The applicant therefore concludes that

the procedure did not meet the inherent requirements within the meaning

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

The Commission recalls that in matters of deprivation of liberty

Article 5 para. 4 (Art. 5-4) of the Convention requires a control

procedure which has "a judicial character and gives to the individual

concerned guarantees appropriate to the kind of deprivation of liberty

in question; in order to determine whether a proceeding provides

adequate guarantees, regard must be had to the particular nature of the

circumstances in which such proceedings take place" (cf. Eur. Court

H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 23,

para. 57 with reference to the De Wilde, Ooms and Versyp judgment of

18 June 1971, Series A no. 14. pp. 41, 42, paras. 76 in fine and 78;

Wassink judgment of 27 September 1990, Series A no. 185A, para. 30 with

further reference).

The question therefore arises as to whether the proceedings

leading up to the Regional Court's decision of 23 December 1988

satisfied the requirements of Article 5 para. 4 (Art. 5-4), in which

case he would have no right, at that time, to a further judicial

review.

One element could create some doubt in this respect, namely the

fact that the applicant was not assisted by a lawyer at the hearing on

19 December 1988. The Commission recalls that, according to its

previous case-law, assistance by a lawyer may in some cases of

detention in psychiatric hospitals be necessary in order to satisfy the

requirements of Article 5 para. 4 (Art. 5-4) (No. 13770/88 M. v. the

Federal Republic of Germany, Comm. Rep. of 26.2.91).

The Commission notes that in the present case the applicant

explicitly agreed to be heard in the absence of his lawyer on the

condition that his lawyer would be given the opportunity of submitting

comments after the hearing, which condition was complied with. In its

judgment of 28 April 1989 the Supreme Court held, inter alia, that the

Regional Court must have found the applicant capable of understanding

the implications of the investigating judge's proposal. The Commission

finds no reason in the circumstances of the present case to reach a

different conclusion. The Commission further notes that at the hearing

not only the applicant himself but also his father and a psychologist

were heard by the judge.

The Commission notes that the applicant's lawyer was given the

opportunity of submitting comments after the hearing but that, due to

the applicant having absconded from the mental hospital, the lawyer

could not submit comments within the time-limit set by the Regional

Court.

It thus appears that the difficulties which arose for the lawyer

in the submission of comments were caused by the applicant's own

action. The Commission further notes that in the Wassink case the

European Court of Human Rights found the requirements of Article 5

para. 4 (Art. 5-4) satisfied although the judge had heard certain

persons by telephone and only later had given the applicant's

counsellor an opportunity to comment on their statements (Eur. Court

H.R., judgment of 27 September 1990, Series A no. 185A, paras. 33 and

34).

Having regard to all these elements the Commission considers that

the conditions of Article 5 para. 4 (Art. 5-4) were satisfied in the

proceedings leading up to the Regional Court's decision of 23 December

1988 and that, therefore, the applicant had no right to a further court

review at that time.

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

applicant submits that he did not receive a fair and public hearing

concerning the prolongation of his provisional detention.

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

as relevant:

1. In the determination of his civil rights and

obligations [...], everyone is entitled to a fair and

public hearing [...]."

The Commission considers that proceedings regarding the

lawfulness of a person's detention in a psychiatric hospital do not as

such concern the determination of that person's "civil rights and

obligations" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur.

Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8. p. 43,

para. 23; No. 9661/82, Dec. 14.7.83, D.R. 34 p. 127). This would only

be the case if, as in the Winterwerp case (Eur. Court H.R., judgment

of 24 October 1979, Series A no. 33, p. 28, para. 73), it was found

that the detention had indirect effects on the detained person's right

to administer his property or to carry out legal transactions. The

Commission finds no indication of such an effect in the present case.

It follows that the whole application is manifestly ill-founded

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

Convention.

For these reasons, the Commission, by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

W. v. THE NETHERLANDS

W. v. THE NETHERLANDS

LEXI