Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13876/88

by Antoine Felix de JONG

against the Netherlands

The European Commission of Human Rights sitting in private

on 12 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G. H. THUNE

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

Mr. H.C. KRÜGER, 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 7 April 1988

by Antoine Felix de JONG against the Netherlands and registered

on 20 May 1988 under file No. 13876/88;

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 facts as submitted by the parties may be summarised as

follows.

The applicant is a Dutch citizen born in 1961 and resident in

Amsterdam, the Netherlands. He has no profession. Before the

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

Amsterdam.

I. Particular circumstances of the case

On 14 September 1987, the applicant was examined by a

psychiatrist, Mr. A. In a report drawn up in accordance with Section

35 (c) para. 2 of the Mentally Ill Persons Act (Krankzinnigenwet;

hereafter referred to as the "Act"), the psychiatrist recommended that

the applicant be taken into provisional detention (inbewaringstelling)

in a psychiatric hospital. That same day, a detention order was issued

by the Mayor of Amsterdam on the basis of Section 35 (b) of the Act

(see below Relevant domestic law and practice), stating that it was

seriously suspected that, as a consequence of mental illness, the

applicant presented an immediate danger either to himself, to others

or to public order. The applicant was placed in the Provincial

Hospital of Santpoort.

The detention order was sent, via the Public Prosecutor of

Haarlem, to the Acting President of the Regional Court

(Arrondissementsrechtbank) of Haarlem in order to obtain judicial

confirmation, as required by Section 35 (i) of the Act.

On 15 September 1987, the psychiatrist, Mr. A., sent a report

to the Public Prosecutor, under Section 16 of the Act, recommending

that the applicant be committed to a psychiatric hospital by judicial

authorisation (rechterlijke machtiging). On 18 September 1987, the

Public Prosecutor submitted a request to this effect to the Acting

President of the Regional Court of Haarlem.

On 21 September 1987, the Acting President, having heard the

applicant, his lawyer and his doctor, refused to confirm the

detention order and rejected the request for a judicial authorisation

for committal. Thereupon the applicant was released from detention,

and left the hospital.

In accordance with Section 17 para. 7 of the Act, the request

for a judicial authorisation was automatically referred to the full

Regional Court.

On 10 October 1987, the Mayor of Amsterdam again issued a

provisional detention order in respect of the applicant, on the basis

of a report drawn up by a physician, Mr. M. The applicant was again

placed in the Provincial Hospital of Santpoort, and the detention

order was sent to the Acting President of the Regional Court of

Haarlem for judicial confirmation.

On 22 October 1987, the Acting President (not the same person

as on the previous occasion), having heard the applicant, his lawyer

and his consulting physician, confirmed the provisional detention

order for the legal maximum period of three weeks. This was due to

expire on 12 November.

On 11 November 1987, the full Regional Court was to hear the

case for the applicant's committal, but, at his lawyer's request, this

hearing was adjourned until 25 November 1987.

On 12 November 1987, the Acting President of the Regional

Court prolonged the applicant's provisional detention for a further

period of three weeks. On the basis of Section 35 (j) of the Act,

this decision was taken ex officio without further consultation, for

the reason that a request for a judicial authorisation for committal

was pending.

On 13 November 1987, when he attempted to leave the hospital,

the applicant was told he could not leave because his provisional

detention had been prolonged. Thereupon he introduced summary

proceedings (kort geding) with the President of the Regional Court of

Haarlem against the hospital, demanding the immediate termination of

the provisional detention. He based his claim on the fact that he had

also introduced an appeal in cassation with the Supreme Court (Hoge

Raad) against the prolongation decision of 12 November in which he

alleged that this decision was unlawful, inter alia, because he had

not been heard, no new medical evidence had been procured, and he had

not been informed of the procedure nor of the decision.

On 23 November 1987 the Acting President in summary judgment

ordered the applicant's release, on the basis of the consideration

that the Supreme Court would probably decide that the order for the

prolongation of the applicant's provisional detention of 12 November

had been unlawful.

On 25 November 1987, the full Regional Court heard the

applicant, his lawyer and his consulting physician and, on 2 December

1987, it granted a judicial authorisation for the applicant's

committal to a psychiatric hospital for a period of six months. The

full Regional Court thereby overruled the decision of the Acting

President of 21 September 1987, for the reason that the applicant's

history suggested that he was a borderline psychotic who would

frequently need to be taken into custody to avert danger. Therefore,

a longer, sustained period of hospitalisation was considered

necessary.

On 22 January 1988, the Supreme Court declared the applicant's

appeal inadmissible for lack of interest, because he had already been

released from detention. However, in the interest of the law, the

Supreme Court did state ex officio that the procedure leading to the

prolongation decision had been in accordance with Section 35 (j) of

the Act.

II. Relevant domestic law and practice

The detention of persons of unsound mind in the Netherlands is

governed by the Mentally Ill Persons Act (Krankzinnigenwet, hereafter

referred to as the "Act").

The relevant provisions, in respect of the present application,

dealing with the detention of a mentally ill person in a psychiatric

hospital are Sections 35 (b) to (j).

If it is a matter of urgency, the Mayor is empowered to order

the provisional detention of a mentally ill person in a psychiatric

hospital. Under Section 35 (c) of the Act, he must first seek the

opinion of a psychiatrist, or, where this proves impossible, another

medical practitioner. Once the Mayor has ordered a committal, he

must, under Section 35 (e), inform the public prosecutor and transmit

to him the medical declaration on which he has relied. Under Section

35 (i), the public prosecutor has then to communicate it, not later

than the following day, to the President of the Regional Court,

requesting, where appropriate, the continuation of the provisional

detention. The President must give his decision within three days.

If he refuses to order the continuation of the custody, it must cease

forthwith. Before he decides, the President 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. Under Section 35 (j) the maximum period of the

provisional detention is three weeks. If, before the expiration of

this period, a request for a judicial authorisation for committal to a

psychiatric hospital has been submitted to either the District Court

Judge under Section 12 or the President of the Regional Court under

Section 13 of the Act, the provisional detention may, under Section 35

(j), be prolonged ex officio by a maximum period of three weeks by the

President.

The Dutch Supreme Court ruled in its decision of 18 January

1985 (H.R. 18.1.1985, N.J. 1985, 405) that neither the Act nor the

Convention requires that the President of the Regional Court, when

prolonging the provisional detention for another three weeks, again

hears the person concerned and that the President need only give

summary reasons for his decision, as he had already heard the person

concerned and examined medical evidence when reaching his reasoned

decision on the provisional detention only three weeks earlier, and he

would have to do so again when deciding on the request for a judicial

authorisation. The Supreme Court pointed out that the purpose of the

prolongation was to allow time for a thorough examination by the

President of the Regional Court of the necessity of the request for a

judicial authorisation for committal.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 April 1988 and registered

on 20 May 1988.

On 5 March 1990 the Commission decided to bring the

application to the notice of the respondent Government and to invite

them pursuant to Rule 42 para. 2 (b) of the Rules of Procedure (former

version) to submit observations on its admissibility and merits, in

respect of the complaints under Article 5 paras 1 (e) and 2 of the

Convention relating to the proceedings concerning the applicant's

provisional detention in a psychiatric hospital.

The respondent Government's observations were submitted on 29

May 1990 and the reply thereto by the applicant on 16 July 1990.

COMPLAINTS

1. The applicant complains that the decision of 12 November 1987

of the Acting President of the Regional Court to prolong his

provisional detention by three weeks was taken without hearing him and

without examining recent medical evidence on his psychological state

or his potential dangerousness, and was therefore unlawful.

Furthermore, he submits that the provision in Section 35 (j) of the

Act on the prolongation of provisional detention did not apply in his

case because the Acting President had already rejected the request for

an authorisation of committal on 21 September 1987, and no new request

for committal had been made during his current period in custody. He

argues that the wording of Section 35 (j) excludes the use of the

pending procedure before the full Regional Court as a basis for

prolonging the provisional custody.

The applicant alleges that his detention after 12 November

1987 was not lawful and not ordered in accordance with a procedure

prescribed by law. He invokes Article 5 para. 1 (e) of the

Convention.

2. The applicant also complains that he was not informed of the

decision of 12 November 1987, in particular of the reasons for the

prolongation. He invokes Article 5 para. 2 of the Convention.

3. Furthermore, he complains that he did not have a fair hearing

regarding the prolongation of his detention because he was not heard

and the procedure was not public. He submits that a prolongation of

detention concerns a determination of civil rights and/or

obligations. He invokes Article 6 para. 1 of the Convention.

THE LAW

1. The applicant complains that the decision of 12 November 1987

by the President of the Regional Court to prolong his provisional

detention by three weeks has not been taken in accordance with Article

5 para. 1 (e) (Art. 5-1-e) of the Convention.

Article 5 para. 1 (e) (Art. 5-1-e) provides 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 for the

prevention of the spreading of infectious diseases, of

persons of unsound mind, alcoholics or drug addicts or

vagrants;..."

The applicant states that on or about 11 November 1987 the

President of the Regional Court only knew that about three weeks

previously a serious presumption had existed that the applicant was

mentally ill, but that there was no new report on the mental state of

the applicant. The most recent report at his disposal was dated 1

October 1987 and was written by an ordinary doctor and not a

psychiatrist, who had concluded that the applicant was possibly

mentally disturbed. Despite this fact the President decided to prolong

the detention without hearing or informing the applicant beforehand of

his intention.

The Government submit in their observations that a decision to

prolong provisional detention cannot be taken unless a request or

application for a judicial authorisation has been submitted, which did

occur in this case. The Government furthermore submit that the Dutch

Supreme Court ruled in its judgment of 18 January 1985 in a case

concerning prolongation of provisional detention in a mental hospital

that "it should be assumed that neither the Mentally Ill Persons Act

nor the Convention provisions referred to in the statement of grounds

for appeal requires the patient to be heard in connection with the

prolongation of his detention, and that the President need only to

give summary reasons for his decision to prolong the detention".

The Commission recalls that the words "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 the present case, the Commission notes that the Supreme

Court in its decision of 22 January 1988 found that the decision of 12

November 1987 by the President of the Regional Court to prolong the

detention of the applicant by three weeks was taken in accordance with

the law, as the request for a judicial authorisation for detention was

still pending before the Regional Court.

The Commission considers that the Supreme Court's

interpretation concerning the lawfulness of the decision to prolong

the applicant's provisional detention must be considered as

authoritative. The interpretation cannot be regarded as arbitrary or

unreasonable. It follows that the applicant's detention in a

psychiatric hospital in accordance with the prolongation decision was

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

prescribed by law. The applicant's complaint on this point is

therefore manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

2. The applicant also claims a violation of Article 5 para. 2

(Art. 5-2) of the Convention as neither he nor his lawyer were

informed of the decision of 12 November 1987 prolonging his detention

for three weeks.

Article 5 para. 2 (Art. 5-2) reads as follows:

"2. Everyone who is arrested shall be informed promptly,

in a language which he understands, of the reasons for his

arrest and of any charge against him."

The applicant states that a copy of the decision was sent on

Friday 13 November 1987 to his lawyer, who received it on or about 16

November 1987. The lawyer then informed the applicant by telephone of

this decision, i.e. several days after the expiry of the first period

of detention.

The applicant rejects the Government's argument that, given

the fact that the consideration of the request for a judicial

authorisation which was to have taken place on 11 November 1987,

was postponed at the lawyer's request, the applicant should have

expected the order for prolongation of the period of detention to have

been issued on 12 November 1987.

The applicant submits that the President of the Regional Court

had rejected the request for a judicial authorisation on 21 September

1987, thereby releasing the applicant from the hospital. The request

for a judicial authorisation was automatically referred to the full

Regional Court and was still pending when the applicant was committed

to the psychiatric hospital for a second time. The applicant considers

that, as he had earlier been released pending this decision, a

prolongation of his provisional detention was not to be expected.

The Commission notes that the applicant was informed about the

decision of 12 November 1987 to prolong his detention on 13 November

1987 when he tried to leave the hospital, and that his lawyer received

the decision, after the intervening weekend on 16 November 1987. Under

the particular circumstances, he can be considered as having been

informed "promptly" within the meaning of Article 5 para. 2 (Art. 5-2)

of the Convention. This complaint is therefore manifestly ill-founded

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

Convention.

3. The applicant complains furthermore that Article 6 para. 1

(Art. 6-1) of the Convention has been violated stating that he did not

receive a fair and public hearing concerning the prolongation of his

provisional detention. In his opinion, this prolongation concerned

the determination of civil rights and obligations.

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

as relevant:

"1. In the determination of his civil rights and

obligations or of any criminal charge against him, everyone

is entitled to a fair and public hearing within a reasonable

time by an independent and impartial tribunal established by

law..."

The Commission considers that proceedings regarding 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 transacations. The

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

It follows that there has been no violation of the applicant's

right to a fair and public hearing in the determination of his civil

rights and obligations.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

H.C. KRÜGER C.A. NØRGAARD

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DE JONG v. THE NETHERLANDS

DE JONG v. THE NETHERLANDS

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