BISH v. THE NETHERLANDS



                  EUROPEAN COMMISSION OF HUMAN RIGHTS

                            SECOND CHAMBER

                       Application No. 17741/91

                               Eddy BISH

                                against

                            the NETHERLANDS

                       REPORT OF THE COMMISSION

                     (adopted on 2 September 1992)

                           TABLE OF CONTENTS

                                                                 Page

I.    INTRODUCTION

      (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1

      A.   The application

           (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

      B.   The proceedings

           (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1

      C.   The present Report

           (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2

II.   ESTABLISHMENT OF THE FACTS

      (paras. 16-29). . . . . . . . . . . . . . . . . . . . . . . . 3

      A.   The particular circumstances of the case

           (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 3

      B.   Relevant domestic law

           (paras. 21-29) . . . . . . . . . . . . . . . . . . . . . 3

III.  OPINION OF THE COMMISSION

      (paras.  30-48) . . . . . . . . . . . . . . . . . . . . . . . 7

      A.   Complaints declared admissible (para. 30). . . . . . . . 7

      B.   Points at issue (para. 31) . . . . . . . . . . . . . . . 7

      C.   Article 5 para. 1 of the Convention

           (paras. 32-38) . . . . . . . . . . . . . . . . . . . . . 7

      D.   Article 5 para. 4 of the Convention

           (paras. 39-47) . . . . . . . . . . . . . . . . . . . . . 8

      E.   Recapitulation

           (para. 48) . . . . . . . . . . . . . . . . . . . . . . .10

APPENDIX I   :  HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .11

APPENDIX II  :  DECISION ON THE ADMISSIBILITY . . . . . . . . . . .12

I.    INTRODUCTION

1     The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.    The application

2     The applicant is a Dutch citizen, born in 1948 and resident at

's-Hertogenbosch, the Netherlands.  Before the Commission the applicant

is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague.

3     The application is directed against the Netherlands.  The

respondent Government are represented by their Agent,

Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign

Affairs.

4     The case concerns the applicant's committal to a mental hospital

on the basis of a judicial order. It raises issues under

Article 5 paras. 1 and 4 of the Convention.

B.    The proceedings

5     The application was introduced on 15 January 1991 and registered

on 31 January 1991.  After a preliminary examination of the case by the

Rapporteur, the Commission considered the admissibility of the

application on 8 April 1991.  It decided to give notice of the

application to the respondent Government and to invite the parties to

submit written observations on its admissibility and merits.

6     The Government's observations were submitted by letter of

28 June 1991, to which the applicant replied by letters of 7 August and

6 September 1991.

7     On 8 January 1992 the Commission declared the application partly

admissible and partly inadmissible.

8     On 9 January 1992 the parties were offered the possibility to

submit additional observations on the application.  No such

observations were received.

9     After having consulted the parties the Commission decided on

30 March 1992 to refer the application to the Second Chamber of the

Commission.

10    After having declared the case in part admissible, the

Commission, acting in accordance with Article 28 para. 1 (b) of the

Convention, placed itself at the disposal of the parties with a view

to securing a friendly settlement.  In the light of the parties'

reactions the Commission now finds that there is no basis on which a

friendly settlement can be effected.

C.    The present Report

11   The present Report has been drawn up by the Commission (Second

Chamber) in pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

             MM. S. TRECHSEL, President of the Second Chamber

                 G. JÖRUNDSSON

                 A. WEITZEL

                 J.C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

            Mrs. G. H. THUNE

            MM.  F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

12    The text of this Report was adopted by the Commission (Second

Chamber) on 2 September 1992 and is now transmitted to the Committee

of Ministers of the Council of Europe, in accordance with

Article 31 para. 2 of the Convention.

13    The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is:

      a)   to establish the facts, and

      b)   to state an opinion as to whether the facts

           found disclose a breach by the State concerned

           of its obligations under the Convention.

14    A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

15    The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.    The particular circumstances of the case

16    On 25 April 1990 the Burgomaster of Boxtel issued an order for

the applicant's provisional detention (inbewaringstelling) in a mental

hospital.  On the basis of this order he was detained in the

psychiatric hospital Reinier van Arkel at 's-Hertogenbosch.

17    On 2 May 1990 the public prosecutor requested the continuation

of his provisional detention, and on 3 May 1990, the President of the

Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch, after

having heard the applicant, his lawyer and the treating psychiatrist,

ordered that he should continue to be detained.

18   On 16 May 1990 the applicant's mother addressed to the District

Court judge (kantonrechter) of 's-Hertogenbosch a request for a

judicial order (rechterlijke machtiging) to have him detained in a

mental hospital.  A medical certificate dated 14 May 1990 was annexed

to it.  On 17 May 1990 the District Court judge heard the applicant and

the treating psychiatrist in regard to the request for a judicial

order.  The applicant declared that he preferred not to stay in the

mental hospital.  However, on the same day the judge issued an order

for the applicant's detention in a mental hospital.

19    At the hearing before the District Court judge, the applicant was

not assisted by a lawyer.  He states that he remembers having asked for

his lawyer, but this is not mentioned in the minutes of the hearing.

Nor do these minutes indicate that he was asked whether he wished to

have a lawyer.  The applicant further states that he was not informed

of the hearing in advance, which made it impossible for him to prepare

himself.  Moreover, he states that he had no access to the documents

in the case-file and was not informed of their contents.  At least

there is no indication in the minutes of any such information having

been provided.

20    In his appeal in cassation (cassatieberoep) to the Supreme Court

(Hoge Raad) the applicant invoked these deficiencies in the procedure.

He alleged that the procedure was not consistent with the principles

developed in the Supreme Court's case-law and referred in particular

to a judgment of 19 January 1990 (N.J. 1990, Nr. 442).  However, on

12 October 1990 the Supreme Court declared the appeal inadmissible, the

reason being that an order of this kind issued by a District Court

judge could only be challenged on specific and limited grounds and the

grounds invoked by the applicant were not admissible.

B.    Relevant domestic law

21    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).

22    Article 12 of the Mentally Ill Persons Act enables, amongst

others, a close relative of a mentally ill person to apply in writing

to the local District Court judge for a judicial order to have that

person placed temporarily in a mental hospital in the interests of

public safety or of the person concerned.

23    According to Article 17 of the Act the judge is as a rule obliged

to hear the person whose confinement is sought before he decides on the

request for committal to a mental hospital.  The judge can also, either

at the request of the person concerned or ex officio, appoint a lawyer

to assist that person.  In its judgment of 19 January 1990 (N.J. 1990,

Nr. 442) the Supreme Court held:

      "Before deciding on a request or an application for an

      order committing a person to a mental institution pursuant

      to Article 17, subsection 3 of the Mentally Ill Persons

      Act, the judge who - apart from exceptional cases - is

      obliged to hear the individual involved, may, on the basis

      of the last part of the said provision, appoint counsel to

      assist the patient, either at the request of the latter or

      ex officio.

      In view of the significance that must be attached to the

      hearing of the person concerned as the means by which the

      latter may defend himself against a request pursuant to

      Article 12 (...) and in view of the vulnerable position

      such a person frequently will find himself in without the

      assistance of counsel, the correct exercise of

      aforementioned competence entails that the judge, should he

      not appoint a lawyer himself, must inquire whether the

      person concerned wishes to have the assistance of counsel,

      even though he may not have expressly requested such.

      Should the person concerned subsequently be heard without

      the assistance of counsel, the case documents must indicate

      the results of the aforementioned inquiry and, in cases

      where a request by the person concerned for representation

      is dismissed, must contain an account of the weighty

      circumstances which justified not granting the request."

24    In its judgment of 23 November 1990 (N.J. 1991, Nr. 91) the

Supreme Court considered:

      "First and foremost, it must be stated that proceedings

      pursuant to the Mentally Ill Persons Act should be subject

      to the principle that the court may only make a decision on

      the basis of documents to which the person involved has had

      access and on which he has had the opportunity to comment.

      If no opportunity to peruse the documents prior to the

      hearing has been given, the hearing can be used to give the

      person concerned the opportunity to study the documents and

      comment upon them.  Unless the nature and volume of the

      documents prevent study and comments during the hearing, it

      may be assumed that sufficient opportunity therefor has

      been provided without this being expressly stated in the

      court order or official report."

25    According to Article 17 of the Mentally Ill Persons Act no appeal

(hoger beroep) is possible against the District Court judge's decision

on a request for a judicial order.  It appears, however, from the

Supreme Court's case-law that an appeal may be lodged when such

fundamental principles of procedural law have been disregarded that

fair and impartial treatment of the case was not guaranteed (cf. Hoge

Raad, 4 March 1988, N.J. 1989, Nr. 4).

26    Moreover, an appeal in cassation (cassatieberoep) against the

District Court judge's decision on the basis of the Mentally Ill

Persons Act may be lodged with the Supreme Court, but only on the

specific grounds mentioned in Article 100 of the Judicial Organisation

Act (Wet op de Rechterlijke Organisatie) (cf. Hoge Raad,

18 October 1991, N.J. 1992, Nr. 1).

27    Article 100 of the Judicial Organisation Act reads as follows:

      "1. Against judgments by District Court judges in civil

      cases, apart from the case of an appeal in cassation on

      points of law of major legal interest, an appeal in

      cassation is only admitted:

      1°. because of lack of reasons;

      2°. because judgment has not been pronounced in public;

      3°. because of lack of jurisdiction;

      4°. because jurisdiction has been exceeded.

      2. Against judicial orders in civil cases, apart from the

      case of an appeal in cassation on points of law of major

      legal interest, an appeal in cassation is only admitted on

      the grounds mentioned in para. 1 under 1°, 3° and 4°."

      "1. Tegen vonnissen van kantonrechters in burgerlijke zaken

      is beroep in cassatie, afgezien van het geval van cassatie

      "in het belang der wet", slechts toegelaten:

      1°. wegens het niet inhouden van de gronden waarop zij rusten;

      2°. wegens het niet met open deuren geschied zijn van de

      uitspraak;

      3°. wegens onbevoegdheid;

      4°. wegens overschrijding van rechtsmacht.

      2. Tegen beschikkingen in burgerlijke zaken is beroep in

      cassatie, afgezien van cassatie "in het belang der wet", slechts

      toegelaten op de in het eerste lid onder 1°, 3° en 4° genoemde

      gronden."

28    By virtue of Article 29 of the Mentally Ill Persons Act, a person

detained in a mental hospital may at any time request the hospital

board to release him.  The board must immediately consult the medical

director of the institution.  If the latter'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

Regional Court (Arrondissementsrechtbank) for decision.

29    The Supreme Court also considered, in its judgment of

7 April 1989, that anyone who claims to have been unlawfully deprived

of his liberty may institute tort proceedings on the basis of

Article 1401 of the Civil Code (Burgerlijk Wetboek) and claim

compensation for any damage suffered as a result of such unlawful

deprivation of liberty (N.J. 1989, Nr. 532).

III.  OPINION OF THE COMMISSION

A.    Complaints declared admissible

30    The Commission has declared admissible the applicant's complaints

under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention that,

in the proceedings resulting in a judicial order authorising his

committal to a mental hospital, he was not assisted by a lawyer, that

he was not given the opportunity in these proceedings to acquaint

himself with the documents in the case-file and that, as the Supreme

Court declared his appeal in cassation inadmissible, he had no judicial

remedy satisfying the requirements of Article 5 para. 4 (Art. 5-4) of

the Convention.

B.    Points at issue

31    The following are the points at issue in the present application:

-     whether there has been a violation of Article 5 para. 1

      (Art. 5-1) of the Convention;

-     whether there has been a violation of Article 5 para. 4

      (Art. 5-4) of the Convention.

C.    As regards Article 5 para. 1 (Art. 5-1) of the Convention

32    The relevant part of Article 5 para. 1 (Art. 5-1) of the

Convention reads as follows:

      "1.  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,

      (...)"

33    The applicant has alleged that his detention in a mental hospital

was not ordered "in accordance with a procedure prescribed by law" and

that it was not "lawful" within the meaning of Article 5 para. 1 (e)

(Art. 5-1-e) of the Convention.  He has pointed out in particular that

he was not assisted by a lawyer at the hearing before the District

Court judge and that he had no access to the documents in his case-file

and was not informed of their contents.

34    The Government have stated that, according to the jurisprudence

of the Supreme Court (cf. para. 23 above), a court deciding upon a

request to detain a person in a mental hospital shall, in view of the

vulnerable position such a person frequently will find himself in

without the assistance of counsel, either appoint a lawyer itself or

inquire whether the person concerned requires the assistance of

counsel.  In case the person concerned is subsequently heard without

the assistance of counsel, the case documents must indicate, inter

alia, the results of this inquiry.  The Government admitted that the

failure of the Court to inquire whether the applicant wished counsel

to be appointed was not in accordance with the Supreme Court's case-law

on this point.

35    In respect of the applicant's complaint that he had no access to

the documents in his case-file and was not informed of their contents,

the Government referred to the Supreme Court's ruling of

23 November 1990 in another case (cf. para. 24 above).  In this ruling

the Supreme Court held that proceedings pursuant to the Mentally Ill

Persons Act should be subject to the principle that the court may only

make a decision on the basis of documents to which the person involved

has had access and on which he has had the opportunity to comment.  The

Supreme Court added that if this opportunity has not been given prior

to the hearing, sufficient time should be set aside during the court

proceedings in order to study these documents, but that it is not

required that the consultation be expressly reflected in the judicial

order or official report.

36    The Commission notes that according to the Supreme Court's case-

law the applicant should have been asked whether he wanted to be

assisted by a lawyer, and that, if he had answered this question in the

affirmative, the judge, in principle, should have appointed a lawyer.

It does not appear from the material submitted by the parties that such

a question was put to the applicant.  The Commission notes that

according to the Supreme Court's case-law a person, whose detention is

sought on the basis of the Mentally Ill Persons Act, has the right to

consult and comment on the documents in his case-file before the court

decides on his detention.  The applicant's affirmation that he was not

given access to the case-file or informed of its contents has not been

contested by the Government.

37    In these circumstances, the Commission considers that the

applicant's rights under Dutch law in respect of the proceedings

concerning his detention in a mental hospital have not been respected.

Consequently, the applicant's detention was not ordered in accordance

with a procedure prescribed by Dutch law and it does not therefore

satisfy the conditions of Article 5 para. 1 (Art. 5-1) of the

Convention.

      Conclusion

38    The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention.

D.    As regards Article 5 para. 4 (Art. 5-4) of the Convention

39    Article 5 para. 4 (Art. 5-4) of the Convention 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."

40    The applicant has alleged that he had no judicial remedy

satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention as the Supreme Court refused to examine his appeal in

cassation.

41    The Government submitted that the judicial order was given by a

court and that, although subject to the restrictions laid down in

Article 100 of the Judicial Organisation Act, an appeal in cassation

was in principle possible.  The Government also pointed out that the

applicant could at any time have lodged a request for his discharge,

thus ensuring that his case be heard once again by a court, that

compensation could be claimed and that in urgent cases summary

proceedings (kort geding) may be instituted with the President of the

Regional Court.

42    The Commission recalls that the detention order was issued by a

judicial organ, i.e. the District Court judge.  However, the European

Court has consistently held that the intervention of a single judicial

body without a right to a further judicial remedy will satisfy

Article 5 para. 4 (Art. 5-4) only on condition that the procedure

followed has a judicial character and gives to the individual concerned

guarantees appropriate to the kind of deprivation of liberty in

question (Eur. Court H.R., Wassink judgment of 27 September 1990,

Series A no. 185-A, para. 30).

43    In the present case, the Commission has already found that the

applicant's detention was not ordered "in accordance with a procedure

prescribed by law" within the meaning of Article 5 para. 1 (Art. 5-1)

of the Convention, since, in particular, he was not assisted by a

lawyer and it did not appear that he had been asked whether he wanted

the assistance of a lawyer (cf. paras. 36-37 above).  The European

Court has pointed out that the procedural guarantees resulting from

Article 5 para. 4 (Art. 5-4) should, unless there are special

circumstances, include the assistance of a lawyer in proceedings

relating to the continuation, suspension or termination of a mentally

ill person's confinement in a psychiatric institution (Eur. Court H.R.,

Megyeri judgment of 12 May 1992, Series A no. 237-A, para. 23).  The

Commission considers that the same principle should apply to

proceedings which, as in the present case, concern the initial

detention of a person in a psychiatric institution.

44    It follows that one fundamental guarantee inherent in proceedings

under Article 5 para. 4 (Art. 5-4) was not respected in the proceedings

before the District Court judge.  The applicant therefore had to be

given the possibility of instituting further proceedings satisfying the

conditions of that provision (Eur. Court H.R., Van der Leer judgment

of 21 February 1990, Series A no. 170, para. 33).

45    The Commission notes that, under Article 100 of the Judicial

Organisation Act, an appeal in cassation was only possible on specific

limitative grounds and considers therefore that this remedy was not

sufficient under Article 5 para. 4 (Art. 5-4).  Nor can the Commission

find that the other remedies invoked by the Government - a request for

discharge, a claim for compensation and summary proceedings before the

President of the Regional Court - were, at least at the time

immediately after the District Court judge's order, such as to allow

an effective review of the lawfulness of the applicant's detention.

The Commission refers in this regard to its remarks in the decision on

the admissibility of the present application (see point 2 under The Law

in that decision).

46    The Commission therefore finds that the applicant did not have

at his disposal a procedure satisfying the requirements of Article 5

para. 4 (Art. 5-4).

      Conclusion

47    The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

E.    Recapitulation

48    The Commission concludes:

-     unanimously, that there has been a violation of Article 5 para. 1

(Art. 5-1) of the Convention (para. 38);

-     unanimously, that there has been a  violation of Article 5

para. 4 (Art. 5-4) of the Convention (para. 47).

Secretary to the Second Chamber      President of the Second Chamber

         (K. ROGGE)                              (S. TRECHSEL)

                              APPENDIX I

                        HISTORY OF PROCEEDINGS

Date                                    Item

_______________________________________________________________________

15 January 1991                         Introduction of application

31 January 1991                         Registration of application

Examination of admissibility

8 April 1991                            Commission's decision to

                                        invite the Government to

                                        submit their observations on

                                        the admissibility and merits

                                        of the application

28 June 1991                            Government's observations

7 August and 6 September 1991           Applicant's observations in

                                        reply

8 January 1992                          Commission's decision to

                                        declare the application

                                        admissible in respect of the

                                        applicant's complaints under

                                        Article 5 paras. 1 and 4

                                        of the Convention

Examination of the merits

9 January 1992                          Parties invited to submit

                                        further observations on

                                        the merits

30 March 1992                           Commission's decision to

                                        refer the application to the

                                        Second Chamber

2 September 1992                        Commission's deliberations

                                        on the merits, final vote and

                                        adoption of the Report

 

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