AS TO THE ADMISSIBILITY OF
Application No. 15672/89
by P.B.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 September 1992, 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
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 23 August 1989 by
P.B. against the Netherlands and registered on 23 October 1989 under
file No. 15672/89;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1961, and was, when he
introduced the application, detained in a mental hospital in Wolfheze,
the Netherlands. Before the Commission the applicant is represented
by Mrs. G.E.M. Later, a lawyer practising in The Hague.
The facts of the case, as submitted by the parties, may be
summarised as follows.
As the judicial order (rechterlijke machtiging), on the basis of
which the applicant was detained in a mental hospital would expire on
18 June 1988, the public prosecutor, on 8 June 1988, submitted a
request to the Regional Court (Arrondissementsrechtbank) of Arnhem for
an extension of this order. This request was accompanied by a medical
certificate dated 1 June 1988 by the applicant's treating psychiatrist,
recommending an extension of the judicial order.
On 25 July 1988 the applicant, who was represented by a lawyer,
and his treating psychiatrist were heard by the investigating judge
(rechter-commissaris) on which occasion the applicant's lawyer
requested a second medical opinion.
By interlocutory decision of 4 August 1988 the Regional Court
decided to appoint a second psychiatrist and to invite him to submit
a psychiatric report on the applicant before 29 August 1988. This
psychiatrist submitted his report, recommending an extension of the
judicial authorisation, on 16 August. The report was subsequently
transmitted to the applicant's lawyer.
On 29 August 1988 the applicant, who was represented by his
lawyer, was heard again on the basis of the second medical report.
On 12 September 1988 the Regional Court extended the judicial
order by one year as from 18 June 1988.
The applicant's appeal to the Supreme Court (Hoge Raad) was
rejected on 24 February 1989. The Supreme Court rejected the
applicant's complaint under Article 5 paras. 1 (e) and 4 of the
Convention that he had not been heard within a reasonable time after
the submission of the request to extend his detention in a mental
hospital. The Supreme Court held that in cases of this kind Article
5 para. 4 does not apply as the proceedings at issue concern an
automatic periodical review of a judicial detention order and are not
proceedings instituted by the applicant, challenging his detention, a
possibility of which he could avail himself at any time. The Supreme
Court agreed with the Regional Court that the public prosecutor's
request had not been dealt with as expeditiously as normally desirable,
but considered that the total length of the proceedings was not
unreasonably long in view of the fact that the applicant himself had
requested a second medical opinion, a request which had been granted.
The Supreme Court also upheld the Regional Court's opinion that
the mere lapse of time between the submission of the public
prosecutor's request to extend the judicial order and the hearing
before the Regional Court does not lead to the inadmissibility of the
public prosecutor's request.
DOMESTIC LAW
Article 24 of the Mentally Ill Persons Act (Krankzinnigenwet)
provides, inter alia:
"No more than fourteen and at least eight days before the
expiry of the period for which the Regional Court has
ordered someone's detention in a mental hospital, a request
can be submitted to the Regional Court to extend this
period by a maximum of one year (...)
The detainee in respect of whom an extension of the
judicial order for detention is requested shall remain in
the mental hospital pending the examination by the Regional
Court. (...)"
Article 29 of the Mentally Ill Persons Act provides, inter alia:
"(...) the detainee himself can request the hospital board
to discharge him.
The board seeks the immediate advice of the medical
officer, or, in case there are more than one, of the
medical director of the mental hospital. The advice, to be
submitted as soon as possible, shall be in writing and
shall be reasoned. If it is favourable, discharge will
follow. If it is not favourable, the board will
immediately transmit the request together with the advice
to the public prosecutor at the Regional Court in whose
judicial district the mental hospital is situated. The
public prosecutor shall request a decision by the Regional
Court. The public prosecutor does not have to request the
Regional Court's decision, if the request is evidently ill-
founded, if an earlier request is still pending, or if the
Regional Court has rejected an earlier request pending the
validity of the last judicial order and the circumstances
of the case have not changed since this rejection (...)
After having heard the public prosecutor, the Regional
Court, as highest competent court, orders the discharge or
rejects the request.
(...)
Before the Regional Court takes its decision, it can order
a further investigation. (...) The Regional Court can
request information from one of more experts. Pending the
examination by the Regional Court, discharge will not be
granted.
(...)"
COMPLAINTS
1. The applicant complains under Article 5 para. 1 (e) of the
Convention that his detention in a mental hospital between 18 June
1988, when the initial judicial order expired, and 12 September 1988,
when the Regional Court decided to prolong the applicant's detention
by one year as from 18 June 1988, was not lawful and not in accordance
with a procedure prescribed by law.
2. The applicant complains under Article 5 para. 4 of the Convention
that it took three months for the Regional Court to take a decision on
the public prosecutor's request to extend the judicial order. He
complains in particular that the domestic courts considered that
Article 5 para. 4 was not applicable to the proceedings at issue.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 August 1989 and registered
on 23 October 1989.
On 7 November 1990 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the
application.
The Government's observations were submitted on 4 April 1991.
On 9 April 1991 the Commission decided to refer the application
to the Second Chamber.
The applicant's observations in reply were submitted on
10 June 1991.
THE LAW
The applicant complains under Article 5 para. 1 (e) (Art. 5-1-e)
of the Convention that his detention in a mental hospital between 18
June 1988 and 12 September 1988 was not in accordance with a procedure
prescribed by law and under Article 5 para. 4 (Art. 5-4) of the
Convention that it took the Regional Court three months to decide on
the public prosecutor's request to extend the judicial order, and in
particular that the domestic courts considered that Article 5 para. 4
(Art. 5-4) was not applicable to the proceedings at issue.
Article 5 paras. 1 (e) and 4 (Art. 5-1-e, 5-4) of the Convention,
in so far as relevant, read 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,
(...).
4. 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."
In respect of the applicant's complaint under Article 5 para. 1
(Art. 5-1) of the Convention the Government are of the opinion that the
applicant's detention between 18 June 1988 and 12 September 1988 in a
mental hospital was in accordance with a procedure prescribed by law.
Article 24 of the Mentally Ill Persons Act provides, inter alia, that
a detainee in respect of whom the extension of a judicial order to
detain him in a mental hospital has been requested, shall remain in
detention pending the decision of the Regional Court. The Government
state that, contrary to the legislation governing hospital orders in
respect of persons placed at the Government's disposal within the
meaning of the Netherlands Penal Code (terbeschikkingstelling), the
Mentally Ill Persons Act does not specify any time limit within which
the Regional Court must reach a decision, but that an extension may be
granted for a maximum of one year, commencing on the expiry date of the
previous judicial order and not on the day on which this extension is
granted by the Regional Court.
The applicant does not dispute the Government's observations in
respect of the Mentally Ill Persons Act. He is, however, of the
opinion that Article 5 para. 1 (e) (Art. 5-1-e) of the Convention does
not allow for a detention period as long as the one at issue, without
the detention being authorised by a court.
Concerning the applicant's complaint under Article 5 para. 4
(Art. 5-4) of the Convention the Government submit that at first sight,
the extension of a hospital order in respect of persons placed at the
Government's disposal within the meaning of the Netherlands Penal Code
and the extension of a judicial order within the meaning of Article 24
of the Mentally Ill Persons Act are sufficiently similar to justify the
conclusion that the latter also falls under Article 5 para. 4
(Art. 5-4). The Government, however, add that the Supreme Court did
not consider Article 5 para. 4 (Art. 5-4) applicable to the present
proceedings as these concern an automatic review at regular intervals
by the judicial authorities to ascertain whether the conditions
pertaining to this deprivation of liberty continue to be valid. The
Government also state that in any event a detainee in a mental hospital
can, at any point in time, request his discharge under Article 29
of the Mentally Ill Persons Act. In case the Commission would consider
Article 5 para. 4 (Art. 5-4) of the Convention to be applicable to the
proceedings at issue, the Government are of the opinion that neither
the fact that the time between the public prosecutor's request and the
first hearing on this request was longer than would generally be
considered desirable nor the duration of the procedure as a whole is
sufficient to justify the conclusion that the Regional Court did not
come to a speedy decision.
The applicant is of the opinion that Article 5 para. 4
(Art. 5-4) is applicable to the present proceedings and argues that the
decision on the lawfulness of his detention was not taken speedily as
required by this provision. In the applicant's view the Government
have provided no justification for the delays which occurred in the
proceedings on the prolongation of the judicial order.
The Commission, having regard to the parties' submissions,
considers that the application raises issues of fact and law which can
only be resolved by an examination of the merits. The application
cannot, therefore, be declared manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other
grounds for inadmissibility have been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy