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SMIET v. THE NETHERLANDSDISSENTING OPINION of Mrs. G.H. THUNE and Basil HALL

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Document date: December 6, 1990

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SMIET v. THE NETHERLANDSDISSENTING OPINION of Mrs. G.H. THUNE and Basil HALL

Doc ref: • ECHR ID:

Document date: December 6, 1990

Cited paragraphs only

DISSENTING OPINION of Mrs. G.H. THUNE and Basil HALL

While noting the past case-law of the Court and Commission, we

find ourselves unable to agree with the opinion of the majority of the

Commission (para. 56) that proceedings regarding a person's detention

in a psychiatric hospital do not as such concern the determination of

that person's civil rights.

The right to protection against unlawful interference with

one's person and the right to protection against unlawful interference

with one's property are fundamental rights in the laws of civilised

states which can be invoked against acts both of private individuals

and of state authorities. Many of the delictual systems of member

states derive from these two basic rights, which must in our view be

classified as civil rights for the purposes of Article 6 para. 1 of

the Convention. Indeed the Court has recognised in a number of its

judgments that questions over interference by state authorities with

property rights involve the determination of civil rights. We cannot

see that questions over the legality of interference with the person

fall into a different category.

Indeed a determination of a dispute over the legality of a

restriction in a person's liberty which is imposed by another private

person or private institution would clearly be a determination of a

civil right. So too, in our opinion, must be the determination of a

dispute over the legality of such a restriction which is imposed by

state authorities.

Accordingly, the failure of the Supreme Court to pronounce on

the legality of the deprivation of the applicant's liberty constituted

a violation of Article 6 para. 1 of the Convention.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

______________________________________________________________________

24 April 1987 Introduction of the application

2 May 1987 Registration of the application

Examination of admissibility

13 October 1987 Commission's decision to invite

the Government to submit

observations on the admissibility

and merits of the application

8 January 1988 Government's observations

30 March 1988 Applicant's observations in reply

10 July 1989 Commission's decision to declare

the application admissible

Examination of the merits

9 December 1989, Commission's consideration of

12 May and the state of proceedings

6 October 1990

6 December 1990 Commission's deliberations on the

merits, final vote and adoption

of the Report

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