Lexploria

In the van der Leer case*,

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* Note by the Registrar: The case is numbered 12/1988/156/210.

The first number is the case's position on the list of cases referred

to the Court in the relevant year (second number). The last two

numbers indicate the case's position on the list of cases referred to

the Court since its creation and on the list of the corresponding

originating applications to the Commission.

_______________

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr A. Spielmann,

Mr J. De Meyer,

Mr J.A. Carrillo Salcedo,

Mr N. Valticos,

Mr S.K. Martens,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 27 September 1989 and

22 January 1990,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 13 September 1988, within the

three-month period laid down by Article 32 § 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 11509/85) against the Kingdom of the Netherlands

lodged with the Commission under Article 25 (art. 25) by a national

of that State, Mrs Hendrika Wilhelmina van der Leer, in May 1984.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby the Netherlands recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether or not

the facts of the case disclosed a breach by the respondent State of

its obligations under Article 5 §§ 1, 2 and 4 and Article 6 § 1

(art. 5-1, art. 5-2, art. 5-4, art. 6-1).

2. In response to the enquiry made in accordance with

Rule 33 § 3 (d) of the Rules of Court, the applicant stated that she

wished to take part in the proceedings and designated the lawyer who

would represent her (Rule 30).

3. The Chamber to be constituted included ex officio

Mr S.K. Martens, the elected judge of Netherlands nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 29 September 1988, in

the presence of the Registrar, the President drew by lot the names of

the other five members, namely Mr J. Cremona, Mr A. Spielmann,

Mr J. De Meyer, Mr J. A. Carrillo Salcedo and Mr N. Valticos

(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of the

Netherlands Government ("the Government"), the Delegate of the

Commission and the applicant's representative on the need for a

written procedure (Rule 37 § 1). The proceedings were initially

suspended while negotiations for a friendly settlement took place

between the Government and the applicant, but on 30 January 1989 the

Agent of the Government informed the Registrar of their failure.

Thereafter, in accordance with the orders and directions of the

President, the registry received the Government's memorial on

26 April. The applicant's observations, which concerned only her

claims under Article 50 (art. 50), were submitted on

20 September 1989. On 6 July the Secretary to the Commission had

advised the Registrar that the Delegate would make his submissions at

the hearing.

5. On different dates between 6 July and 24 October 1989, the

Commission, the Government and the applicant each produced various

documents which, on the Court's instructions, the Registrar had

requested. On 24 October 1984 the Government, in addition, submitted

their observations on the applicant's claims under Article 50

(art. 50).

6. After consulting, through the Registrar, those who would be

appearing before the Court, the President directed on 7 July 1989 that

the oral proceedings should open on 26 September (Rule 38).

7. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting immediately beforehand.

There appeared before the Court:

(a) for the Government

Miss D.S. van Heukelom, Assistant Legal Adviser,

Ministry of Foreign Affairs, Agent,

Mr J.C. De Wijkerslooth de Weerdesteijn,

Landsadvokaat, Counsel,

Mrs R.E. van Galen-Herrmann, Ministry of Justice, Adviser;

(b) for the Commission

Mr H. Danelius, Delegate;

(c) for the applicant

Mrs G.E.M. Later, advokate en procureur, Counsel,

Mr W.J.J. Los,

Mr J. Legemaate, Advisers.

The Court heard addresses by Miss van Heukelom and Mr De Wijkerslooth

de Weerdesteijn for the Government, by Mr Danelius for the Commission

and by Mrs Later for the applicant.

AS TO THE FACTS

I. Particular circumstances of the case

8. Mrs Hendrika Wilhelmina van der Leer is a Netherlands

national. She currently resides in The Hague.

9. On 28 September 1983 the Burgomaster of The Hague ordered

Mrs van der Leer's confinement in a local psychiatric hospital. She

had already been committed on a number of previous occasions.

Following a decision of 3 October 1983 by the President of the

District Court (Arrondissementsrechtbank) refusing to extend her

confinement, she nevertheless remained in the hospital on a voluntary

basis.

On 18 November 1983, on her husband's application, the Cantonal Court

judge (Kantonrechter) of The Hague authorised Mrs van der Leer's

compulsory confinement in the same hospital for a period of six

months. The application was supported by a medical declaration by a

psychiatrist, who had examined her on 16 November 1983. In this

declaration, the psychiatrist answered in the negative the question

whether it would be devoid of purpose or medically inadvisable for

Mrs van der Leer to be heard by a judge.

The Cantonal Court judge did not hold any hearings, with the result

that no record was drawn up. His order stated that the medical

declaration sufficiently indicated the necessity of committing the

applicant to a psychiatric hospital. The pre-printed statement, on

the standard-form order, that a hearing had been dispensed with

because it would have been devoid of purpose or medically inadvisable

had been deleted.

Mrs van der Leer was not informed of the confinement order, nor did

she receive a copy of the written decision.

10. On 28 November 1983, after she had been placed in isolation,

she became aware that her confinement was compulsory and immediately

contacted her lawyer. On 6 December the lawyer requested the Board of

the hospital to discharge her. The request was refused by the Board

on 15 December, on the basis of the unfavourable opinion of the

medical director of the hospital. The request was then forwarded on

20 December 1983, to the public prosecutor (Officier van Justitie)

who, on 6 February 1984, referred it to the District Court of The

Hague.

11. The District Court held hearings on 5 March, 16 April

and 7 May 1984. On each occasion Mrs van der Leer was represented by

her counsel. On 26 March 1984 the District Court stated that it wished

to hear the doctor who was treating the applicant and ordered that he

appear and that the hospital's medical reports be produced. This

interlocutory decision was, however, not complied with, either at the

hearing on 16 April or at that on 7 May 1984. On the latter occasion,

in the absence of evidence that, as a result of her mental illness,

Mrs van der Leer represented a danger, the court ordered her

discharge.

12. However, Mrs van der Leer, with the help of her husband, had

already left the hospital without authorisation on 31 January 1984.

She had been granted probationary leave by the hospital as from

7 February, but only learned of this indirectly during the course of

March.

II. Relevant domestic law and practice

13. The confinement of persons of unsound mind in the Netherlands

is governed by the Act of 27 April 1884 on State Supervision of

Mentally Ill Persons, commonly known as the Mentally Ill Persons Act

(Krankzinnigenwet).

A. Emergency committal procedure

14. If it is a matter of urgency, the burgomaster is empowered to

order the compulsory admission of a "mentally ill" person to 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 he has ordered a committal, he

must inform the public prosecutor and transmit to him the medical

declaration on which he has relied. The public prosecutor has then to

communicate it, not later than the following day, to the President of

the District Court, requesting, where appropriate, the continuation of

the confinement. The President must give his decision within three

days. If he refuses to order the continuation of the confinement, it

must cease forthwith.

B. Issue of an order authorising provisional confinement

15. Section 12 of the Act enables, amongst others, the spouse of a

mentally ill person to apply in writing to the local cantonal court

judge for an authorisation to have that person placed temporarily in a

mental hospital in the interests of public safety or of the person

concerned.

Section 16 of the Act requires that such an application be accompanied

by a reasoned medical declaration by a qualified doctor who has

specialised in mental and nervous disorders. This declaration must be

to the effect that the patient is mentally ill and that treatment in a

mental hospital is necessary or desirable. The statement should also

indicate in so far as possible whether or not, in view of the

patient's condition, it would be devoid of purpose or medically

inadvisable for the judge to hear the patient.

16. The judge will issue the requested order authorising

provisional detention if the medical declaration, either on its own or

in conjunction with the facts related or the documents submitted,

adequately establishes that treatment in a psychiatric hospital is

"necessary or desirable" (section 17 § 1 of the Act). The Supreme

Court (Hoge Raad) of the Netherlands has interpreted this expression

as meaning that the patient must represent a danger to himself, to

others or to the general public order, to such an extent that it is

necessary or desirable that he be treated in a psychiatric clinic

(judgment of 4 November 1983, Nederlandse Jurisprudentie (NJ) 1984,

no. 162).

The judge 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 (section 17 § 3). The

Supreme Court has held that a decision not to hear the patient must be

supported by reasons (judgment of 27 November 1981, NJ 1983, no. 56).

The judge must, "so far as possible", seek information from, amongst

others, the person who made the application for confinement and the

spouse of the patient (section 17 § 4).

By virtue of article 72 of Regulation I (Reglement I) made in

pursuance of the Judiciary (Organisation) Act (wet op de rechterlijke

organisatie), a registrar must be present at "the hearings and

examinations" conducted by the judge ("terechtzittingen en verhoren").

The confinement order may not be appealed against and is not notified

to the person concerned (section 17 §§ 1 and 8); its renewal must be

sought within six months of the day on which it was made (section 22).

C. Discharge of the patient

17. By virtue of section 29 of the Act, the patient may petition

the Board of the hospital for his release at any time. The Board must

immediately consult the medical director of the institution. If the

doctor's opinion is unfavourable, the Board has to transmit the

request, together with the opinion, to the public prosecutor who, in

general, will forward the request to the District Court for decision.

18. As regards the procedure, section 29 refers to section 23,

according to which the District Court is empowered, but not bound, to

hear the patient. In a judgment of 2 December 1983 (NJ 1984,

no. 164), however, the Supreme Court held that, in the light of

Article 5 (art. 5) of the Convention, these provisions should be

interpreted as conferring on the patient detained the right to be

heard and to adduce any evidence which might help to secure his

release. This entailed not only the right to be assisted by a lawyer,

but also the right to demand the presence of an expert to counter the

arguments of the hospital board.

PROCEEDINGS BEFORE THE COMMISSION

19. In her application (no. 11509/85) lodged with the Commission

on 18 May 1984, Mrs van der Leer alleged that her compulsory

confinement in a psychiatric hospital had been neither ordered "in

accordance with a procedure prescribed by law" nor "lawful" within the

meaning of Article 5 § 1 (art. 5-1) of the Convention. She further

complained that paragraphs 2 and 4 of Article 5 (art. 5-2, art. 5-4)

had been violated since she had not been informed of the order of

18 November 1983 or given the possibility of having the lawfulness of

her deprivation of liberty reviewed "speedily" by a court. Finally,

she claimed that, in breach of Article 6 § 1 (art. 6-1), she had been

denied a fair hearing in the determination of her civil rights and

obligations.

20. The Commission declared the application admissible on

16 July 1986.

In its report adopted on 14 July 1988 (Article 31) (art. 31),

the Commission expressed the unanimous opinion that there had been a

violation of Article 5 §§ 1, 2 and 4 (art. 5-1, art. 5-2, art. 5-4),

but no violation of Article 6 § 1 (art. 6-1). The full text of its

opinion and of the separate opinion accompanying it is reproduced as

an annex to this judgment.*

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* Note by the Registrar. For practical reasons this annex will appear

only with the printed version of the judgment (volume 170 of Series A of

the Publications of the Court), but a copy of the Commission's report is

obtainable from the registry.

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AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (art. 5-1)

21. The applicant claimed to be the victim of a violation of

Article 5 § 1 (art. 5-1), which, in so far as is relevant to the

present case, provides as follows:

"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 ...;

..."

She alleged that the order authorising her confinement in a

psychiatric hospital had not been issued in accordance with a

procedure prescribed by law, which had rendered her detention

unlawful.

In the first place and above all, the Cantonal Court judge had not

heard Mrs van der Leer prior to making the order, although under

section 17 (3) of the Mentally Ill Persons Act he was bound to do so,

since the psychiatrist had not raised any objection to such a hearing

(see paragraph 9 above).

In addition, she submitted that the order in question had not complied

with the conditions to which, according to the Netherlands Supreme

Court and the European Court of Human Rights, the validity of such a

measure was subject. It did not appear that the judge had established

that the person concerned was a danger to herself, to others or to the

general public order. The applicant questioned whether the

psychiatrist's attestation amounted to an expert report which was

sufficiently objective to support the conclusion that she was of

unsound mind within the meaning of Article 5 § 1 (e) (art. 5-1-e)

of the Convention.

She considered further that the Cantonal Court judge ought also to

have heard her husband (section 17 § 4 of the Mentally Ill Persons

Act), or at least, should have stated why he had not done so.

Finally she alleged failure to comply with Article 72 of Regulation I

made in pursuance of the Judiciary (Organisation) Act, which requires

the presence of a registrar at the hearings and examinations conducted

by the judge (see paragraph 16 above).

22. In the Court's view, the main issue to be determined in the

present case is whether the disputed detention was "lawful", including

whether it complied with "a procedure prescribed by law". The

Convention here refers back essentially to national law and lays down

the obligation to conform to the substantive and procedural rules

thereof, but it requires in addition that any deprivation of liberty

should be consistent with the purpose of Article 5 (art. 5), namely

to protect individuals from arbitrariness (see, in particular, the

Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 17-18 and

19-20, §§ 39 and 45; the Bozano judgment of 18 December 1986,

Series A no. 111, p. 23, § 54; and the Bouamar judgment

of 29 February 1988, Series A no. 129, p. 20, § 47).

23. Notwithstanding the requirements of the Mentally Ill Persons

Act, the Cantonal Court judge failed to hear Mrs van der Leer before

authorising her confinement, although the legal conditions under which

such a hearing might be dispensed with were not satisfied. At the

very least he should have stated, in his decision, the reasons which

led him to depart from the psychiatrist's opinion in this respect.

The Government accepted this.

There has therefore been a violation of Article 5 § 1 (art. 5-1)

in this regard.

24. Having found a failure to comply with an essential procedural

requirement on this ground, the Court does not consider it necessary

to examine the other complaints put forward by the applicant under

Article 5 § 1 (art. 5-1).

II. ALLEGED VIOLATION OF ARTICLE 5 § 2 (art. 5-2)

25. The applicant complained of a violation of Article 5 § 2

(art. 5-2) which provides as follows:

"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."

In her submission, this provision entitled her to be informed

immediately of the order authorising her confinement. In fact she

found out about it only by accident, when she was placed in isolation.

26. The Government conceded that Mrs van der Leer should have been

informed promptly, but they contended that this resulted from

paragraph 4 (art. 5-4). They argued that paragraph 2 (art. 5-2), on

the other hand, did not apply to the case in question because the

words "arrest" and "charge" showed that it was only relevant to cases

arising under the criminal law. The presence of the conjunction "and"

confirmed this.

27. The Court is not unmindful of the criminal-law connotation of

the words used in Article 5 § 2 (art. 5-2). However, it agrees with the

Commission that they should be interpreted "autonomously", in

particular in accordance with the aim and purpose of Article 5

(art. 5), which are to protect everyone from arbitrary deprivations of

liberty. Thus the "arrest" referred to in paragraph 2 of Article 5

(art. 5-2) extends beyond the realm of criminal-law measures.

Similarly, in using the words "any charge" ("toute accusation") in

this provision, the intention of the drafters was not to lay down a

condition for its applicability, but to indicate an eventuality of

which it takes account.

28. The close link between paragraphs 2 and 4 of Article 5

(art. 5-2, art. 5-4) supports this interpretation. Any person who

is entitled to take proceedings to have the lawfulness of his

detention decided speedily cannot make effective use of that right

unless he is promptly and adequately informed of the reasons why he

has been deprived of his liberty (see, mutatis mutandis, the X v. the

United Kingdom judgment of 5 November 1981, Series A no. 46, p. 28,

§ 66).

Paragraph 4 (art. 5-4) does not make any distinction as between

persons deprived of their liberty on the basis of whether they have

been arrested or detained. There are therefore no grounds for

excluding the latter from the scope of paragraph 2 (art. 5-2).

29. Having found that Article 5 § 2 (art. 5-2) is applicable, the

Court must determine whether it has been complied with in this case.

30. The applicant was in hospital to receive treatment as a

"voluntary" patient. It was not until 28 November 1983 that she

learned, when she was placed in isolation, that she was no longer free

to leave when she wished because of an order made ten days previously

(see paragraphs 9 and 10 above). The Government did not contest this.

31. It therefore appears that neither the manner in which she was

informed of the measures depriving her of her liberty, nor the time it

took to communicate this information to her, corresponded to the

requirements of Article 5 § 2 (art. 5-2). In fact it was all the more

important to bring the measures in question to her attention since she

was already in a psychiatric hospital prior to the Cantonal Court

judge's decision, which did not change her situation in factual terms.

Accordingly, there has been a violation of Article 5 § 2 (art. 5-2).

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)

32. The applicant complained of a double violation of

Article 5 § 4 (art. 5-4) which provides as follows:

"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."

She claimed in the first place to be the victim of an infringement of

her right to be informed promptly and adequately of the facts and the

grounds on which her detention was based in order to be able to

institute the proceedings referred to in this provision. Secondly,

she argued that, inasmuch as the District Court did not deliver its

decision on the lawfulness of the contested order until five months

after the proceedings had been instituted, it had not decided the

question "speedily".

33. The Court would observe at the outset that the review of

lawfulness required under Article 5 § 4 (art. 5-4) was not in this instance

incorporated in the decision depriving the applicant of her liberty

because, before authorising the detention, the judge had failed to

comply with one of the fundamental procedural guarantees applying in

the field of deprivation of liberty failed to comply (see

paragraph 23 above and the De Wilde, Ooms and Versyp judgment

of 18 June 1971, Series A no. 12, pp. 40-41, § 76). The applicant

therefore had to be given the possibility of instituting proceedings.

34. The Court has already determined, in the context of

Article 5 § 2 (art. 5-2), the question of the information which should

have been communicated to Mrs van der Leer. It does not consider it

necessary to re-examine it in the light of Article 5 § 4 (art. 5-4).

35. On the issue of the compliance, in this case, with the

requirement of "speediness", it observes that there are certain

divergences between the views of the participants in the proceedings

as regards the method of determining the period to be taken into

consideration. In guaranteeing to persons arrested or detained a

right to institute proceedings, Article 5 § 4 (art. 5-4) also

proclaims their right, following the institution of such proceedings,

to a speedy judicial decision terminating their deprivation of liberty

if it proves unlawful.

Neither the fact that the applicant absconded nor even the fact that

she was granted probationary leave could render such a decision

unnecessary. After she had left the hospital without authorisation,

Mrs van der Leer could at any moment have been taken back there

against her will. The leave made no difference from her point of view.

As it was not possible to bring the hospital's decision to her notice,

she must have remained in fear of being compelled to return to the

establishment. Accordingly, the relevant period runs from when the

application for release was lodged - which step must be regarded, in

this instance, as equivalent to instituting proceedings against the

confinement order - to the date of the judgment ordering her release,

in other words from 6 December 1983 to 7 May 1984.

36. Consequently, the proceedings lasted five months. In the

specific circumstances of the case, the Court considers this lapse of

time excessive. As Mrs van der Leer stressed in her application for

release, the judge had not heard her before authorising her detention.

Moreover, the institution of proceedings may have been significantly

retarded by the failure to comply with the obligation to inform the

person concerned of the measure taken against her. There were

therefore compelling reasons for avoiding any dilatoriness. On the

Government's own admission, the public prosecutor, to whom the matter

was referred on 20 December 1983, did not transmit the file to the

District Court of The Hague until 6 February 1984 (see paragraph 10

above). In the absence of any grounds justifying this delay, the

Court finds that there has been a violation of Article 5 § 4

(art. 5-4).

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

37. Before the Commission the applicant also relied on

Article 6 § 1 (art. 6-1), but at the hearing on 26 September 1989 she

withdrew this complaint. The Court does not consider it necessary to

examine this question of its own motion.

V. APPLICATION OF ARTICLE 50 (art. 50)

38. Under Article 50 (art. 50) of the Convention,

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising from

the ... Convention, and if the internal law of the said Party allows

only partial reparation to be made for the consequences of this

decision or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

39. Mrs van der Leer claimed in the first place 10,000 Dutch

guilders in respect of pecuniary and non-pecuniary damage. In

addition to the harm caused by her unlawful detention, she maintained

that she had suffered not only from the fear of being returned to the

hospital after she had absconded, but also as a result of the court

proceedings and the memory of the distressing circumstances of her

confinement.

40. She also sought the payment of 30,997.55 guilders in respect

of the expenses and fees of the lawyer who represented her before the

Commission and the Court.

The Government noted that she had received legal aid. In their view,

she had not shown that she had had to pay her lawyer additional fees

whose reimbursement she was entitled to request.

41. With a view to securing a friendly settlement, the Government

had proposed to the applicant an overall sum of 15,000 guilders

covering any damage suffered as well as the costs incurred through her

being represented by a lawyer before the Strasbourg organs. This

offer was repeated at the hearing.

42. In the Court's view, the applicant must have suffered some

non-pecuniary damage. The fact that she was not heard by the Cantonal

Court judge could have led to a feeling of frustration, to which was

added the fear of being sent back to the hospital during the delay

resulting from the failure to take the relevant decision "speedily".

Making an equitable assessment in accordance with Article 50 (art. 50),

the Court awards the applicant, in respect of all the heads of claim,

the overall amount of 15,000 guilders.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of paragraphs 1, 2 and 4

of Article 5 (art. 5-1, art. 5-2, art. 5-4);

2. Holds that it is not necessary to consider in addition the

case under Article 6 § 1 (art. 6-1);

3. Holds that the Netherlands is to pay to the applicant

15,000 (fifteen thousand) Dutch guilders;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in

the Human Rights Building, Strasbourg, on 21 February 1990.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

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CASE OF VAN DER LEER v. THE NETHERLANDS

CASE OF VAN DER LEER v. THE NETHERLANDS

LEXI