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CASE OF KOENDJBIHARIE AGAINST THE NETHERLANDS

Doc ref: 11487/85 • ECHR ID: 001-55531

Document date: June 15, 1992

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CASE OF KOENDJBIHARIE AGAINST THE NETHERLANDS

Doc ref: 11487/85 • ECHR ID: 001-55531

Document date: June 15, 1992

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Koendjbiharie case delivered on 25 October 1990 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against

the Netherlands lodged with the European Commission of Human

Rights on 18 March 1985 under Article 25 (art. 25) of the

Convention by Mr Jonas Mohamed Rafiek Koendjbiharie, a Dutch

national, who complained that a decision concerning extension of

his psychiatric confinement was taken more than four months after

the lodging of the relevant application;

Recalling that the case was brought before the Court by the

Commission on 13 December 1989;

Whereas in its judgment of 25 October 1990 the Court:

- held unanimously that there had been a violation of

Article 5, paragraph 4 (art. 5-4), of the Convention

as the Court of Appeal of The Hague failed to rule

"speedily";

- held by eight votes to one that it was unnecessary to

examine the other complaints based on Article 5

(art. 5);

- held unanimously that it was also unnecessary to examine

the complaints initially submitted by the applicant and

based on Articles 3, 6 and 14 (art. 3, art. 6, art. 14);

- held unanimously that the Netherlands were to pay to

the applicant the sum of 18 989,62 Dutch guilders less

12 397,50 French francs in respect of costs and

expenses;

- dismissed unanimously the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of the Netherlands to inform

it of the measures which had been taken in consequence of the

judgment of 25 October 1990, having regard to its obligation

under Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of the Netherlands gave the

Committee information about the measures taken in consequence of

the judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of the

Netherlands has paid to the applicant the sum provided for in the

judgment,

Declares, after having taken note of the information

supplied by the Government of the Netherlands, that it has

exercised its functions under Article 54 (art. 54) of the

Convention in this case.

Appendix to Resolution DH(92)25

Information provided by the Government of the Netherlands

during the examination of the Koendjbiharie case

by the Committee of Ministers

The Act of 19 November 1986, which came into force on

1 September 1988, amended the Criminal Code with regard to the

special provisions applying to persons suffering from a mental

deficiency or mental illness that are placed by the judge at the

Government's disposal for treatment.

Under Section 509.t, paragraph 1, of the Criminal Code read

in the light of Section 509.o, paragraph 1, the court to which

an application for prolongation of the confinement has been

submitted by the crown prosecutor must give a decision not later

than two months after expiry of the current or preceding hospital

order.

The sole exception to this rule is laid down in

Section 509.t, paragraph 2 of the Criminal Code, which grants the

court, subject to certain conditions, a further period of three

months within which to decide on the application for a

prolongation.

Furthermore, Section 509.v, paragraph 1, of the Criminal

Code provides that the person placed at the Government's disposal

has henceforth the possibility of lodging an appeal against the

extension decision, except if the extension was granted for the

first time and for one year only.

The Government of the Netherlands is of the view that the

existence of this option of appeal will ensure compliance with

the time-limits specified above since the Arnhem Court of Appeal

will have to determine the consequences to be drawn from any

non-compliance with the said time limits taking into account,

inter alia, the judgment that the Court delivered in the present

case.

The sum awarded to the applicant by the Court was paid on

28 November 1990.

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