Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11487/85

by Jonas Mohamed Rafiek KOENDJBIHARIE

against the Netherlands

The European Commission of Human Rights sitting in private on

9 December 1988, the following members being present:

MM. S. TRECHSEL, Acting President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. J. RAYMOND, Deputy 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 18 March 1985

by Jonas Mohamed Rafiek KOENDJBIHARIE against the Netherlands and

registered on 11 April 1985 under file No. 11487/85;

Having regard to the observations submitted by the respondent

Government on 4 March 1987 and the observations in reply submitted by

the applicant on 22 May 1987;

Having regard to the parties' oral submissions at the hearing

on 9 December 1988;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as presented by the parties may be

summarised as follows.

The applicant is a Dutch citizen, born in 1954 in Paramaribo,

Surinam. At present he resides in the Hague, the Netherlands. In the

proceedings before the Commission he is represented by Mrs. G.E.M.

Later, a lawyer practising in the Hague.

While on a suspended sentence for rape, the applicant was

convicted and sentenced on a new rape charge by the Regional Court

(Arrondissementsrechtbank) of the Hague to six months imprisonment and

unconditional placement at the Government's disposal to receive

psychiatric treatment. Upon appeal by both parties, the Court of

Appeal (Gerechtshof) of the Hague increased the sentence to nine months

and unconditional placement on 22 June 1979. The applicant's appeal

against this decision to the Supreme Court (Hoge Raad) was rejected on

22 January 1980.

After serving his prison sentence, the applicant's placement

at the Government's disposal began. Under Section 35 b of the Dutch

Criminal Code, placement begins as soon as the judgment has become

irrevocable, but does not run while the convict is otherwise in

detention. A court order for placement at the Government's disposal

in order to receive psychiatric treatment is valid for two years,

unless the Government terminates the period earlier. Under Section 37

f of the Criminal Code, placement may be prolonged for one or two years

upon an application by the Public Prosecution Department to the

sentencing court. This application must be made between one and two

months before the termination of the period of placement. Under

Section 37 h of the Criminal Code the court must decide on the

prolongation request within two months of the submission of the

application. There is no limit to the number of times a period of

placement at the Government's disposal can be prolonged.

On 24 September 1981, the applicant ran away from the

psychiatric hospital where he was being treated. On 16 April 1982 he

was arrested on a new charge of rape. On 22 July 1982 he was acquitted

of this charge by the Regional Court of the Hague. Between 16 April

and 22 July he had been in detention on remand. After 22 July he was

returned to the psychiatric hospital.

In the meantime, the applicant's placement at the Government's

disposal had been prolonged for another two years. This period of

placement was due to terminate on 2 April 1984. When 2 April had

passed without an application for prolongation having been made, the

applicant considered that he was being detained unlawfully. He

instituted summary proceedings on 17 May 1984, requesting his immediate

release from the psychiatric hospital, before the President of the

Regional Court of the Hague.

However, the Public Prosecutor submitted that, under Section

37 b of the Criminal Code, the applicant's period of placement at the

Government's disposal had been suspended between 16 April and 22 July

1982 when he had been in detention on remand. Consequently, his

current period of placement did not terminate on 2 April 1984, but on

8 July 1984. The respondent Government maintain that this information

had been transmitted to the court and the Public Prosecutor by letter

of 27 April 1984 from the Ministry of Justice. The Government state

that upon a request by the applicant's counsel, she was informed of

this on 30 March 1984.

The applicant argued that, as he had been acquitted of the

charge for which he had been in detention on remand in 1982, that

detention had not been justified. Therefore, the suspension referred

to in Section 37 b of the Criminal Code was not applicable.

On 29 May 1984, the President of the Regional Court rejected

the applicant's request. The President considered that the applicant

had been detained in 1982 by court order. The detention had therefore

been lawful, and had suspended the applicant's period of placement at

the Government's disposal.

The applicant appealed to the Court of Appeal of the Hague

against this decision. On 18 April 1985 the Court of Appeal confirmed

the decision of the President of the Regional Court. It considered,

inter alia, that although the applicant was acquitted of the charge of

1982, this did not mean that his detention on remand on suspicion of

that charge had been unlawful. The Court also decided on another

claim, which the applicant had made, concerning the proceedings

outlined below.

In the meantime, on 17 May 1984, the Public Prosecutor made a

request to the original sentencing court for prolongation of the

applicant's placement at the Government's disposal for one more year.

On 21 September 1984, this Court, having held hearings on 4 June 1984

and 17 August 1984 at which the applicant was present, decided that the

applicant was to be kept at the Government's disposal for another year.

The applicant's lawyer was apparently informed of this decision on 31

October 1984. The hearing of 17 August was for the purpose of taking

supplementary expert testimony on the applicant's fitness to leave the

hospital.

In the appeal proceedings on the release request, as outlined

two paragraphs above, the applicant claimed that the prolongation

decision of 21 September 1984 had not been made within two months of

the Public Prosecutor's prolongation request, as stipulated in Section

35 h of the Criminal Code. Therefore, his continued detention was

unlawful. The Court of Appeal, however, held that, in accordance with

existing case-law, the delay did not affect the validity of the

prolongation decision.

In September 1984 the applicant again escaped from the

psychiatric hospital.

On 31 May 1985, the Public Prosecutor again requested that the

applicant be kept at the Government's disposal for another year, but

on 25 June 1985, the Court of Appeal of the Hague rejected this request

since it found that there were not sufficient reasons to keep the

applicant at the Government's disposal. Consequently, the applicant

is no longer placed at the Government's disposal. COMPLAINTS

1. The applicant claims that his detention after the prolongation

decision of 21 September 1984 was in violation of Article 5 para. 1 (a)

or alternatively para. 1 (e) of the Convention, on two counts. Firstly,

because the Public Prosecutor's request for prolongation of 17 May 1984

was made after his previous period of placement had ended on 2 April

1984. Secondly, because the Court decided on the prolongation request

on 21 September 1984, which was more than two months after the request

for prolongation was made. Both counts are at variance with the

explicit provisions of the Dutch Criminal Code, Section 35 f and 35 h

respectively. Therefore, the applicant alleges, he was not detained

in accordance with a procedure prescribed by law.

2. The applicant also alleges that the Court of Appeal of the

Hague did not decide "speedily" on the prolongation request of 1984 and

did not properly examine the lawfulness of his detention. He invokes

Article 5 para. 4 of the Convention in this respect.

3. The applicant further complains that he did not have a fair

trial and that the Court refused to hear independent experts on his

psychiatric condition. He alleges a violation of Article 6 paras. 1

and 3 (d) of the Convention.

4. In addition, the applicant complains that he was the victim of

discrimination because of his national origin and he alleges a

violation of Article 14 of the Convention, read in conjunction with

Article 6 para.1 of the Convention.

5. Finally, the applicant claims that the way he was treated and

assessed by the staff of the psychiatric hospital amounted to inhuman

and degrading treatment contrary to Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 March 1985 and registered

on 11 April 1985.

On 11 December 1986 the Commission examined the admissibility

of the application and decided, in accordance with Rule 42 para. 2 (b)

of the Rules of Procedure, to give notice of the application to the

respondent Government and to invite them to submit before 13 March 1987

their observations on the admissibility and merits of the application.

In particular, the Government was requested to address the issues

arising under Article 5 para. 4 and Article 6 para. 1 of the

Convention.

The observations of the respondent Government were submitted

on 4 March 1987. An English translation was forwarded on 30 March

1987. The applicant was invited to submit observations in reply

before 6 May 1987. Following an oral request for an extension of the

time-limit, the applicant's representative submitted her observations

in reply on 22 May 1987.

The applicant was granted legal aid by the Commission on 13

March 1987.

The Commission examined the application on 13 July 1988 and

decided to adjourn it.

On 12 October 1988 the Commission decided to hold a hearing on

the admissibility and merits of the application.

The hearing was held on 9 December 1988. The parties were

represented as follows:

For the Respondent Government

Ms. D.S. van HEUKELOM Agent

Mrs. R.E. van GALEN-HERRMANN Ministry of Justice, Adviser

For the applicant

Ms. G.E.M. LATER Counsel

Mr. W.J.J. LOS Legal Assistant

Mr. M.Th.M. ZUMPOLLE Legal Assistant

THE LAW

The applicant has complained that, firstly, the request of 17

May 1984 to prolong his detention was made after his period of

placement at the Government's disposal had ended on 2 April 1984.

Secondly, the prolongation decision of 21 September 1984 was taken more

than two months after the prolongation request. For these two reasons,

the applicant alleges that the prolongation of his detention was not

in accordance with a procedure prescribed by law. He has submitted

that, at any rate, the prolongation decision was not taken speedily.

Furthermore, he has complained of the unfairness of the prolongation

proceedings, discrimination on the basis of his national origin and

allegedly inhuman treatment in the institution where he was placed at

the Government's disposal. The applicant has invoked Articles 3, 5

paras. 1 and 4, 6 paras. 1 and 3 (d), and 14 (Art. 3, 5-1, 6-1, 6-3-d)

in conjunction with Article 6 (Art. 14+6) of the Convention.

The respondent Government have submitted that the applicant's

period of placement at the Government's disposal did not end on 2 April

1984, because, in accordance with Section 37b para. 3 of the Dutch

Penal Code, the applicant's period in detention on remand in 1982 was

added to it. The respondent Government have stated that the

prolongation procedure was carried out in accordance with legal

practice in the Netherlands, as defined by the Supreme Court.

Furthermore, the Government have pointed out that the apparent lack of

speed with which the prolongation decision was taken was due to the

Court of Appeal's decision to investigate further certain factors which

militated in favour of not prolonging the applicant's detention. In the

event, the Government submit, the applicant was not affected by the

delay, because the decision which the Court of Appeal took on 21

September 1984 is the minimum decision which they would have taken on

4 June 1984, had it not been considered necessary to examine those new

factors. As to the applicant's other complaints, the Government submit

that these have not been substantiated.

The Commission notes that it is not in dispute between the

Parties, that the domestic remedies have been exhausted, as required

by Article 26 (Art. 26) of the Convention.

The Commission considers that the application raises important

questions of law and fact, in particular pertaining to the observance

of the guarantees contained in Article 5 paras. 1 and 4 (Art. 5-1, 5-4)

of the Convention, which can only be determined in an examination of

the merits of the case. No grounds for inadmissibility having been

established, the application must be declared admissible.

For these reasons, the Commission

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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KOENDJBIHARIE v. THE NETHERLANDS

KOENDJBIHARIE v. THE NETHERLANDS

LEXI