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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