Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12889/87

by Robbert SMIET

against the Netherlands

The European Commission of Human Rights sitting in private

on 10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 24 April 1987

by Robbert SMIET against the Netherlands and registered on 2 May 1987

under file No. 12889/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having regard to the observations on the admissibility and

merits of the application submitted by the respondent Government on 8

January 1988;

Having regard to the observations submitted in reply by the

applicant on 30 March 1988;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Dutch citizen, born in 1951 and at present

detained in a psychiatric hospital in Eindhoven, the Netherlands. In

the proceedings before the Commission he is represented by Ms. G.

Later, a lawyer practising in The Hague.

The facts of the case, as they have been submitted by the

parties, may be summarised as follows:

On 18 August 1986 the applicant was detained by order of the

Burgomaster of Eindhoven, issued on the basis of Section 35b of the

Mentally Ill Persons Act (Krankzinnigenwet), and subsequently taken to

a psychiatric hospital. The order was based on a certificate of a

psychiatrist drawn up on 18 August, in which it was stated that the

applicant was paranoid and a danger to himself, to others or to public

order.

On 20 August 1986 the Public Prosecutor of 's-Hertogenbosch

made a request to the President of the Regional Court

(Arrondissementsrechtbank) of 's-Hertogenbosch, that the applicant's

detention (inbewaringstelling) be prolonged. Under Section 35i para.

1 of the Mentally Ill Persons Act the President should decide within

three days whether the detention should continue. Saturdays and

Sundays do not form part of the three-days' period.

On 21 August 1986 the Regional Court received the Public

Prosecutor's request and the relevant documents.

On 26 August 1986 the Acting President of the Regional Court

heard the applicant, his psychiatrist and his lawyer. The latter

argued that, considering that the request was made on 20 August 1986,

and that 23 and 24 August were a Saturday and Sunday, the time-limit

within which the President should have decided had already expired,

and that the request should therefore be rejected. The applicant

himself submitted that he had agreed to stay in a psychiatric hospital

voluntarily, until he found living accommodation.

On 27 August 1986 the President decided that the applicant's

detention should continue.

On 29 August 1986 the applicant appealed to the Supreme

Court. He complained that, even counting from the day on which the

Regional Court had received the Public Prosecutor's request, the

President had not observed the time-limit, as required under the

Mentally Ill Persons Act. Furthermore, he claimed that there were not

sufficient reasons to conclude that the detention was necessary in

order to avert immediate danger to himself or other persons, since

these reasons were mainly based on events in the past. Moreover,

detention was not necessary because he had agreed to stay in the

hospital voluntarily.

The Government submitted that on 15 September 1986 the

President of the Regional Court had authorised the applicant's placement

in a psychiatric hospital. The applicant submitted that it may not be

concluded from this that the authorisation took effect on 15 September

1986. Under Section 35j of the Mentally Ill Persons Act detention

(inbewaringstelling) may last up to a maximum of three weeks after the

decision of the President. According to its recent case-law, the

Supreme Court declares an appeal against a decision to prolong the

detention inadmissible, if the period of three weeks has already

passed by the time the Supreme Court takes its decision, since the

applicant's interest in his appeal is then considered to have been

lost. Accordingly, in the present case, the applicant explicitly

requested the Supreme Court to decide on his appeal within three

weeks.

On 14 November 1986 the Supreme Court declared the appeal

inadmissible on the ground that the maximum period of three weeks had

already passed and that the appeal was no longer of any interest to

the applicant.

COMPLAINTS

The applicant, invoking Article 5 para. 1 (e) of the

Convention, complains that his detention was not lawful under Dutch

law because the prescribed time-limit was not observed by the Acting

President of the Regional Court. In addition, his mental state did not

represent such a danger to himself, to others or to public safety as

to make his detention necessary or desirable. Moreover, since the

applicant had agreed to stay voluntarily at the psychiatric hospital,

detention was not necessary.

The applicant also complains that the Supreme Court failed to

examine the legality of his detention contrary to Article 5 para. 4 of

the Convention.

On the basis of his allegations under Article 5 paras. 1 and 5

the applicant claims that he is entitled to compensation under Article

5 para. 5.

Finally the applicant complains that he did not have a fair

trial because the Supreme Court did not go into his complaints about

the Acting President's decision at all. The Supreme Court avoided

examining the merits of the case by waiting too long before taking a

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

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 April 1987 and registered

on 2 May 1987.

On 13 October 1987 the Commission decided to communicate the

application to the respondent Government and to invite them to submit

their observations on the admissibility and merits of the application.

The respondent Government's observations were submitted on 8

January 1989. An English translation was submitted on 21 January

1988. The applicant was granted an extension of the time-limit for

submitting observations in reply from 4 March 1988 until 31 March

1988. The applicant's observations were submitted on 30 March 1988.

THE LAW

The applicant complains that he was not detained in

accordance with a procedure prescribed by law, since the President of

the Regional Court had not observed the time-limit prescribed by the

Mentally Ill Persons Act when deciding on the request that his

detention be prolonged. Furthermore, he complains that his mental

state did not represent such a danger as to make his detention

necessary or desirable, and that the detention was not necessary,

since he had agreed to stay voluntarily in the psychiatric hospital.

Moreover, he complains that the Supreme Court did not decide on the

lawfulness of his detention. The applicant submits that he has a

right to compensation. Finally, he complains of an unfair trial

before the Supreme Court. The applicant has invoked Articles 5 paras.

1, 4 and 5, and 6 para. 1 (Art. 5-1, 5-4, 5-5, 6-1) of the Convention.

The respondent Government have submitted that they accept that

the time-limit embodied in the Mentally Ill Persons Act has been

exceeded by one day. However, they have pointed to certain decisions

of the Supreme Court from which it may be concluded that exceeding the

time-limits does not make the subsequent detention illegal.

Furthermore, the Government have pointed out that it was the opinion

of the President of the Regional Court that the applicant's detention

was necessary and that it was correct for the President to assume that

the applicant was not willing to stay voluntarily in the psychiatric

hospital. Moreover, the Government have noted that Article 5 para. 4

(Art. 5-4) does not guarantee a right to appeal.

As regards Article 5 para. 5 (Art. 5-5) the Government have

contended that since Article 5 (Art. 5) of the Convention had not been

violated, no right to compensation exists. Further Article 5 para. 5

(Art. 5-5) presupposes that the applicant's interests are affected.

In the present case, the applicant's interests had not been affected,

since on 15 September 1986 the President of the Regional Court

authorised his placement in a psychiatric hospital, i.e. one day

before the period of detention under the emergency procedure would

have ended. Accordingly, the total length of detention at issue had

not exceeded the length of time permitted under the Mentally Ill

Persons Act. Finally, the respondent Government have submitted that

the applicant's detention had no effect on his capacity to administer

his property and that, therefore, Article 6 para. 1 (Art. 6-1) of the

Convention had not been violated. Moreover, it is the Government's

view that a procedure concerning detention falls to be reviewed under

Article 5 (Art. 5) of the Convention and not under Article 6 para. 1

(Art. 6-1) of the Convention.

In reply, the applicant has submitted that the Supreme Court's

case-law concerns different situations. He has pointed to another

decision (H.R. 23 januari 1987, NJ 1987 no. 409) in which the Supreme

Court decided that the President of a Regional Court had to observe

the time-limit prescribed by the Mentally Ill Persons Act. The

applicant accepts that his detention did not affect his capacity to

administer his property.

The Commission considers that the application raises important

questions of law and fact, which can only be determined by an

examination of the merits of the case. No grounds for inadmissibility

having been established, the application must be declared admissible.

For this reason, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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SMIET v. THE NETHERLANDS

SMIET v. THE NETHERLANDS

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