JOINT DISSENTING OPINION OF JUDGES RYSSDAL, PETTITI, BERNHARDT AND SPIELMANN

When the applicant returned to the psychiatric hospital on 22 February 1986 he had - notwithstanding the decision of 7 January 1986 of the Regional Court to prolong for two years his placement at the Government ’ s disposal - a right under Article 5 § 4 (art. 5-4) to institute court proceedings on the lawfulness of his continued detention (see paragraph 27 of the European Court ’ s judgment).

The question to be decided is whether at that time he had such a right under Dutch law.

In his application of 13 June 1986 to the Commission, the applicant complained that the only possibility open to him was to request the Minister for Justice to release him. However, such proceedings before the Minister cannot be regarded as proceedings before "a court" (see paragraph 28 of the judgment).

Throughout the lengthy proceedings before the Commission not only the applicant but also the Government maintained that it was not possible for the applicant to have the question of the prolonged detention re-examined by a court. Nor was it possible to have a new examination of the legality of the detention before the expiry of the two-year period authorised on 7 January 1986 by the District Court (see paragraphs 55 and 56 of the Commission ’ s report).

The Commission accordingly stated that "under Dutch law the applicant was, on 22 February 1986 , in a situation where he could not obtain a new court review for almost two years" (see paragraph 64 of the Commission ’ s report).

The Government did not challenge this statement when the case was referred to the Court on 13 December 1989 . Indeed, they did not submit any memorial to the Court. Neither did counsel for the Government challenge the statement in his address at the public hearing on 27 June 1990 . It was only in reply to a question that counsel, towards the very end of the hearing, mentioned that the applicant "could have instituted summary proceedings" (see the verbatim record, page 26).

The Court has accepted that the applicant had an effective means of contesting the extension of his placement at the Government ’ s disposal, namely that of filing an interlocutory application with the President of the District Court (see paragraph 28 of the judgment).

We cannot agree that it is sufficiently clear that such a remedy was available to the applicant in 1986.

If what was at issue had been a plea of non-exhaustion of domestic remedies, it is beyond doubt that the Government could not have invoked at the end of the whole procedure a remedy that had never been mentioned previously. Nor could the Court have relied on such a remedy ex officio.

Even though in the present case a question arises in the context of Article 5 § 4 (art. 5-4) rather than in the context of Article 26 (art. 26), the problems are somewhat similar. It is incumbent on a respondent Government to indicate with adequate clarity the existence of a remedy which meets the requirements of Article 5 § 4 (art. 5-4) (see the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, pp. 29-32, §§ 54-56).

Taking the position of the Government into account, it could not be expected that in 1986 the applicant and his lawyer could and should have considered that the filing of an interlocutory application with the President of the District Court was a remedy available to the applicant.

Accordingly, we have come to the conclusion that there was a violation of Article 5 § 4 (art. 5-4) of the Convention.

[*]  The case is numbered 30/1989/190/250.  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.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11) to the Convention which came into force on 1 January 1990 .

[*]    The amendments to the Rules of Court which came into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar: 27/1989/187/247.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 185-C of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.