Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12535/86

by J.W.

against the Netherlands

The European Commission of Human Rights sitting in private

on 9 December 1987 the following members being present:

MM. C. A. NØRGAARD, President

J. A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

Mrs. G. H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

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 17 October 1986

by J.W. against the Netherlands and registered

on 20 October 1986 under file N° 12535/86;

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

Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 26 May 1987 and the observations in reply submitted by

the applicant on 14 August 1987;

Having deliberated;

Decides as follows:

&_THE FACTS&S

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

applicant may be summarised as follows.

The applicant is a Dutch citizen, born in 1942. At

present he resides at K., the Netherlands. In the

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

a lawyer practising at The Hague.

On 15 November 1985, the applicant was detained by order of

the Burgomaster of Emmen, issued on the basis of Section 35 c para. 3

of the Mentally Ill Persons Act (Krankzinnigenwet), and subsequently

taken to a psychiatric hospital.

On 19 November 1985, the public prosecutor of Assen requested

the prolongation of the applicant's detention. On 20 November 1985,

the applicant was heard by the President of the Regional Court

(Arrondissementsrechtbank) of Assen, who subsequently also heard three

other persons among whom the applicant's house doctor, by telephone.

The hearing of the applicant took place in the presence of his

"confidential counsellor" (patiëntenvertrouwenspersoon) Mr.

J.. After hearing the three other persons by telephone, the

judge also telephoned to Mr. J. and told him that these

persons had not adduced any new arguments in addition to the facts

which were already known from the documents. According to Mr.

J., this telephone conversation between him and the judge

only lasted about ten minutes.

On 25 November 1985, the President decided that the

applicant's detention should continue.

The applicant was discharged from the hospital in the middle

of December 1985.

On 24 January 1986, the applicant appealed against the

decision of 25 November 1985 to the Supreme Court (Hoge Raad), but on

18 April 1986 this appeal was declared inadmissible on the ground that

the applicant had already been discharged and that he therefore no

longer had any interest in his appeal.

&_COMPLAINTS&S

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

Convention complains that his detention was not lawful under Dutch law

because he did not, on account of mental derangement, represent such a

danger to himself, to others or to public safety as to make his

detention necessary or desirable. In addition, no minutes were made

of the hearing before the President of the Regional Court and the

court registrar was not present. Furthermore, the president of the

Regional Court based his decision on information obtained in the

applicant's absence and of which he was not apprised.

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 para. 1 and 4,

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 and he has invoked Article 6 para. 1 of the Convention in this

respect.

&_PROCEEDINGS BEFORE THE COMMISSION&S

The application was introduced on 17 October 1986 and

registered on 20 October 1986.

On 6 March 1987 the Commission decided to communicate the

application to the respondent Government for observations on

admissibility and merits. These observations were received on

26 May 1987 and the applicant's reply on 14 August 1987.

&_SUBMISSIONS OF THE PARTIES&S

A. The Government

It is admitted that the President of the Regional Court in

Assen based his decision of 25 November 1985, inter alia, on

information which he obtained by telephone. The President then phoned

the applicant's confidential counsellor on 21 November 1985 and asked

for his comments on this information. This procedure complied, so the

respondent Government submit, with the requirements laid down by the

Netherlands Supreme Court in a decision of 8 July 1985 taken in

application of Section 35 i of the Mentally Ill Persons Act as

interpreted in the light of Article 5 of the Convention. It follows

from that decision that it complies with the procedural requirements

if the President informs the patient or his counsel by telephone or

otherwise of the result of his telephone inquiries.

It is furthermore admitted that, contrary to Article 72 (1) of

Regulation I implementing Section 19 of the Judicial Organisation Act,

a court registrar did not participate at the hearing of the applicant

nor was an official report drawn up of the hearing. Nevertheless, the

applicant's detention was lawful as the Regional Court's President

rightly deduced from the facts and circumstances stated in the medical

report and in the report by the Emmen Municipal Police that the

applicant represented a danger to public order and to himself on

account of his mental derangement.

The Court's President would not have reached a different

decision if a registrar had been present at the hearing and had drawn

up a report. The absence of a court registrar did not in any way

affect the applicant.

Consequently the applicant did not suffer any damage and has

no claim under Article 5 para. 5 of the Convention. Were he to be

considered as a victim of a contravention of Article 5, he could have

instituted civil proceedings against the State under tort law. In the

absence of concrete damage such proceedings would, however, not have

offered chances of success.

Finally, the Government state that a patient detained under

the Mentally Ill Persons Act does not lose the capacity to administer

his property.

B. The applicant

The applicant points out that neither he nor his counsel were

informed by the Regional Court's President of the result of his

telephone inquiries. He submits that there is nothing to show that

the confidential counsellor was kept informed and that his comments

were taken into consideration by the President. In any case it is

questionable whether information to the confidential counsellor only

is sufficient.

As regards the requirement of the presence of a court

registrar at the hearing, the applicant considers that procedural

guarantees should be respected. Had a registrar drawn up a verbatim

record, this could have proven that there had been no reasons to

commit the applicant to a mental hospital. In the absence of a

verbatim record the documents in his case only reflect the views of

those who advocated his committal to a mental hospital.

The applicant also considers that the respondent Government's

observations disregard his complaint that the Supreme Court declared

his appeal in cassation inadmissible and thereby deprived him of the

opportunity to have the lawfulness of his detention determined.

&_THE LAW&S

The applicant mainly complains that his detention was not

lawful under Dutch law and that the Supreme Court failed to examine

the legality of his detention. He also complains of the proceedings

before the President of the Regional Court. He invokes Article 5 paras. 1(e),

4 and 5 (Art. 5-1-e, 5-4, 5-5) as well as Article 6 para. 1 (Art. 6-1) of the

Convention.

Article 27 para. 2 (Art. 27-2), in requiring the Commission to declare

inadmissible any application from an individual, a non-governmental

organisation or group of individuals which it considers to be

manifestly ill-founded, does not permit the Commission, at the stage of

admissibility, to reject a complaint which cannot so be described.

In the present case the Commission has carried out a

preliminary examination of the information and arguments submitted by

the parties. The Commission finds that these raise substantial issues

of interpretation and application of the Convention, in particular of

Article 5 (Art. 5), which are of such complexity that their determination

should depend upon an examination of their merits.

Consequently, the application cannot be regarded as manifestly

ill-founded, and since no other ground of inadmissibility has been

found, the Commission considers that the application must be declared

admissible.

For these reasons, 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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W. v. THE NETHERLANDS

W. v. THE NETHERLANDS

LEXI