AS TO THE ADMISSIBILITY OF
Application No. 23807/94
by D.S.E.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the 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 12 October 1993
by D.S.E. against the Netherlands and registered on 5 April 1994 under
file No. 23807/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
5 October 1994 and the observations in reply submitted by the
applicant on 3 February 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Ethiopian citizen, born in 1970 and at
present detained at the Psychiatric Clinic "Oldenkotte" at Rekken, the
Netherlands. He is represented before the Commission by Mr. M.-W.
Stoet, a lawyer practising in Amsterdam.
A. The particular circumstances of the case
The facts, as presented by the applicant, may be summarised as
follows.
On 21 June 1990 the Regional Court (Arrondissementsrechtbank) of
Groningen convicted the applicant of repeated manslaughter and
sentenced him to five years' imprisonment (with deduction of detention
on remand) and to placement at the Government's disposal
(terbeschikkingstelling) with committal to a psychiatric institution.
The period of placement at such an institution began on 3 July 1991 and
expired two years later, on 3 July 1993.
According to Section 509o para. 1 of the Dutch Code of Criminal
Procedure (Wetboek van Strafvordering, hereinafter referred to as
"CCP"), a request for the extension of such placement shall be made by
the Public Prosecutor not later than one month before the expiry of the
previous period of placement. The last day for making such a request
in the present case was therefore 3 June 1993.
By letter of 17 May 1993, which the applicant received on 19 May
1993, he was informed by the Public Prosecutor that the latter had
requested the extension of the applicant's placement at the
Government's disposal on 17 May 1993. The applicant was also informed
that he could be represented by counsel. It appears, however, that the
request prepared by the Public Prosecutor, which was indeed dated 17
May 1993, did not arrive at that time at the registry of the Regional
Court of Groningen but was, apparently by mistake, placed in the
archives of the Court.
About three and a half months after receiving the letter of the
Public Prosecutor, the applicant alerted the staff in the psychiatric
institution to the fact that he had not been further informed as
regards the extension of his placement. The request was then found in
the archives of the Court on 7 September 1993. It was received at the
Court's registry on 8 September 1993.
In the proceedings regarding the extension, the applicant asked
the Regional Court to declare the Public Prosecutor's request
inadmissible on the ground that both Section 509o para. 1 CCP and the
European Convention on Human Rights had been violated.
The Regional Court examined the application on 15 September 1993.
In its decision, which was given on 23 September 1993, the Court
rejected the applicant's objections and extended his placement at the
Government's disposal for another year. Pursuant to Section 509v CCP
no appeal lies against this decision, as it concerned a first extension
not exceeding one year.
In its decision the Regional Court stated as follows:
[Translation]
"3. It appears from the contents of the relevant documents that
the request for an extension of the placement at the Government's
disposal should have been submitted not later than 3 June 1993.
According to the stamp indicating the receipt, the request was
not received and registered at the registry of this Court until
8 September 1993.
4. The Code of Criminal Procedure does not indicate any
consequences of a failure to observe the time-limit contained in
Section 509o para. 1. However, in view of the wording of the
provision and its legal history, the Court is of the opinion that
failure to observe the last time-limit should in principle result
in the inadmissibility of the Public Prosecutor's application.
This conclusion can be drawn on the basis that failure to respect
this procedural provision is not in conformity with a good
administration of justice.
5. However, in some cases special circumstances might exist which
would justify a departure from that principle. The Court
considers that such special circumstances are present in this
case.
6. The provision referred to has a specific procedural
significance and aims at letting the judge examine periodically
whether an extension of the judicial measure is necessary.
Indirectly the provision also protects the interests of the
person placed at the Government's disposal since it ensures that
this person will know in good time whether or not there will be
a request for an extension. In the present case the interests of
that person were not prejudiced since the request was notified
to him in person on 19 May 1993. He has therefore been able to
get legal assistance in time and he has not been, for an
unnecessarily long period, kept in doubt as to the intentions of
the Public Prosecutor.
7. It remains to be examined whether the violation of the time-
limit has prejudiced a fair procedure. When considering this
question, it is of importance, inter alia, that the placement at
the Government's disposal remains in force as long as there is
no final decision on the request. Although there has been a
violation of the time-limit for the extension, it does not follow
that the deprivation of liberty is unlawful.
8. In substance, there has not been a failure to respect the
time-limit within which the request must be made. The Public
Prosecutor prepared a request for an extension in time and he
communicated it two days later to the person placed at the
Government's disposal.
Because of circumstances, which have been further explained in
the written memorial of the Public Prosecutor, it was not
possible, however, for the Court to decide earlier on this
request which had been prepared in time. It is not possible to
consider this a flagrant violation of the procedural provisions.
The Public Prosecutor may only be reproached for the fact that
the request did not arrive at the registry of this Court in time,
which means that the request was only formally submitted too
late.
9. Moreover an evaluation must be made between different
interests in the sense that the interest of the person placed at
the Government's disposal in having the violated legal provision
respected must be weighed against the general interest which
might be harmed by a decision which would lead to the termination
of the placement at the Government's disposal.
10. The Court considers that, on account of the following
circumstances, the last-mentioned interest must prevail.
The measure was originally imposed because of two acts of
manslaughter. The above-mentioned opinions of the Institution
quite clearly refer to the necessity of extending this coercive
measure. The risk of further criminal behaviour is considered
still to be present to the same degree, since the person
concerned can still not appreciate the vulnerability of his
personality. The supplementary opinion regarding the extension
repeats this conclusion and also mentions an incident in which
violence was used between the person concerned and another person
in the Institution. On this occasion the person concerned lost
his senses for a short while and it was necessary to isolate him
for some time in his room."
B. Relevant domestic law and practice
Placement at the disposal of the Government may be imposed on the
accused who, at the time of committing an offence, suffered from a
mental deficiency or derangement (Section 37a of the Criminal Code).
A judge may further decide that a person placed at the disposal of the
Government shall receive treatment at the Government's expense
(verpleging, Section 37b Criminal Code).
The provisions relating to the extension of the placement at the
disposal of the Government are laid down in Sections 509o to 509x CCP.
In accordance with Section 509o para. 1 CCP, the request to
extend the placement should be submitted not earlier than two months
and not later than one month before the date on which the placement
expires. The date on which the request has been received by the
registry of the Regional Court concerned is considered as the date of
submission. The request must be accompanied by a recommendation which
the institution in which the patient is being treated has prepared not
more than one month before the request was submitted. In accordance
with the provisions of Section 509o para. 6, the person concerned must
immediately be given a copy of the request.
According to Section 509s CCP, the Regional Court must
immediately set a date for the examination of the case and the person
concerned must be informed promptly of this date. In accordance with
Section 509t CCP, the Regional Court must give its decision within two
months after the request was submitted. According to Section 509q CCP,
the placement remains in force until the decision on the request to
extend it has become irrevocable. If the request is granted later than
the date on which the placement would have expired had no request to
extend it been submitted, the placement is nonetheless considered to
have been extended as from that date.
The CCP does not impose any sanction on the exceeding of the
time-limits laid down in Sections 509o and 509t. In practice, the
lawfulness of the placement after expiry of its statutory period is not
affected pursuant to a Supreme Court judgment of 14 June 1974
(Nederlandse Jurisprudentie, NJ, 1974, no. 436). In this case the
Supreme Court took the view that a placement remained lawful even if
the Regional Court exceeded the two months time-limit of Section 509t,
which was at that time provided for in a differently numbered
provision. In a later judgment (29 September 1989, NJ 1990, no. 2), the
Supreme Court held that only in certain circumstances would the State
be obliged to terminate the placement after its statutory period had
expired and no decision as to its extension had been taken. In order
to ascertain whether such an obligation existed, the court should have
regard to the extent to which the statutory time-limit had been
exceeded, the reasons for exceeding the time-limit as well as the
personal and social interests at stake.
As the case-law developed, the opinion that the time-limit
referred to in Section 509t CCP is not of an absolute nature has also
been found to apply to the time-limit now enacted in Section 509o para.
1 CCP. On 19 February 1993, in a case where the time-limits provided
for in Section 509o para. 1 CCP had been exceeded, the Supreme Court
found that in light of Section 509q CCP the placement had remained
lawful despite the fact that its extension had not been requested in
time (NJ 1993, no. 302).
According to Section 509v CCP, both the Public Prosecutor and the
person concerned may lodge an appeal with the Court of Appeal
(Gerechtshof) of Arnhem within two weeks of the service of the judgment
given by the Regional Court. However, this provision rules out an
appeal in regard to the first decision to extend the placement for a
period of one year.
It appears from Dutch case-law that summary civil proceedings
(kort geding) may be instituted in cases where a person placed at the
Government's disposal wishes to obtain a court judgment on the
lawfulness of his detention.
In a case which was brought before the President of the Regional
Court of The Hague, the question of the relationship between the court
responsible for extending the placement and the court before which
summary proceedings are brought was considered (decision of 30 March
1990, published in Sancties 1990 pp. 352-353). The President held that
in principle either court may decide that the person involved should
be released.
In the above-mentioned case before the President of the Regional
Court of The Hague, the request to terminate the placement was
rejected, inter alia in view of the fact that the court responsible for
extending the placement would in any event examine the matter within
a week's time.
COMPLAINTS
The applicant complains of violations of Article 5 paras. 1 and
4 of the Convention in that the decision to extend his placement at the
Government's disposal was not given in a procedure prescribed by law,
which made the placement unlawful. He further states that, after he had
been informed that the extension had been requested on 17 May 1993, he
was entitled to expect the Court's decision to be taken within two
months, i.e. not later than 17 July 1993, but this did not happen. This
too was a violation of Article 5 paras. 1 and 4 of the Convention.
The applicant further complains of violations of Article 5 paras.
1 (a) and 4 and Article 13 of the Convention on the ground that no
appeal was available against the decision to extend his detention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 October 1993 and registered
on 5 April 1994.
On 5 July 1994 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 5 October
1994. The applicant replied on 3 February 1995, after an extension of
the time-limit fixed for that purpose.
THE LAW
1. The applicant complains under Article 5 paras. 1 and 4
(Art. 5-1, 4) of the Convention that the procedure by which his
placement at the Government's disposal was extended was not in
accordance with a procedure prescribed by law which rendered his
detention unlawful.
Exhaustion of domestic remedies
The Government argue in the first place that the application is
inadmissible since the applicant failed to exhaust domestic remedies
as required by Article 26 (Art. 26) of the Convention. They contend
that he could have instituted summary civil proceedings to petition the
President of the Regional Court to terminate a placement at the
Government's disposal.
The applicant submits that in the circumstances of the present
case the institution of summary proceedings would not have constituted
an effective remedy. For a request to order the termination of his
placement at the Government's disposal to be admissible in summary
proceedings, the President of the Regional Court concerned would have
wished to ascertain that no other procedure was open to the applicant
which could result in a decision within a very short period. The
applicant contends that if he had instituted summary proceedings, the
President would have noted that the hearing before the Groningen
Regional Court was imminent and his request would have been rejected.
The Commission recalls that in previous complaints against the
Netherlands, summary proceedings have been found by the Convention
organs to constitute an effective remedy in cases where a person wishes
to obtain a fresh review of the lawfulness of his detention (cf. Eur.
Court H.R., Keus judgment of 25 October 1990, Series A no. 185-C, p.
67, para. 28; No. 12596/86, Van Zomeren v. the Netherlands, Dec.
8.1.92, unpublished).
However, what was at issue in those cases was the question
whether, on the basis of Dutch law, a person claiming that his mental
state had improved had to wait for the expiry of his placement before
he was able to obtain a decision as to its lawfulness.
The Commission notes that in the present case, following the
discovery of the Public Prosecutor's request for the extension of the
applicant's placement in the archives of the Groningen Regional Court
on 7 September 1993, it was sent to the Court's registry where it was
received on 8 September 1993. A hearing before the Regional Court was
subsequently set to take place one week later, on 15 September 1993.
The Commission also has regard to Dutch case-law, as illustrated
by the decision of the President of the Regional Court of The Hague of
30 March 1990 (Sancties, 1990 pp. 352-353), where a request in summary
proceedings for termination of a placement was rejected, inter alia in
view of the fact that the court responsible for extending the placement
would in any event be dealing with the matter one week later. In these
circumstances the Commission considers that summary proceedings would
not have constituted an effective remedy in the present case.
The Commission concludes that the application cannot be rejected
for non-exhaustion of domestic remedies under Articles 26 and 27 para.
3 (Art. 26, 27-3) of the Convention.
As regards the merits
The Commission notes that the applicant's placement at the
Government's disposal commenced on 3 July 1991 and was due to expire
on 3 July 1993. However, the request for an extension was not received
by the registry of the Groningen Regional Court until 8 September 1993
and the decision to extend the placement was not made until 23
September 1993. The Commission considers, therefore, that it should
examine whether the applicant's detention between 3 July and 23
September 1993 was lawful, whether the decision to prolong the
applicant's detention was taken in accordance with a procedure
prescribed by law within the meaning of Article 5 para. 1 (Art. 5-1)
of the Convention, and whether the applicant's right to a speedy court
examination in respect of the lawfulness of his detention was
respected.
Article 5 para. 1 (Art. 5-1), insofar as relevant, provides 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:
a. the lawful detention of a person after conviction by
a competent court;
...
e. the lawful detention ... of persons of unsound mind
... ;
..."
Article 5 para. 4 (Art. 5-4) provides as follows:
"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."
The Commission notes in the first place that the applicant was
convicted by judgment of the Groningen Regional Court of 21 June 1990.
Article 5 para. 1 (a) (Art. 5-1-a) of the Convention therefore applies.
Furthermore, the placement at the Government's disposal with a view to
treatment by reason of defective mental development or mental illness
is equivalent to detention of a person of unsound mind (No. 6852/74,
Dec. 5.12.78, D.R. 15 p. 5; No. 12596/88, mentioned above).
Accordingly, the applicant's detention also falls to be considered
under Article 5 para. 1 (e) (Art. 5-1-e) of the Convention (cf. Eur.
Court H.R., X. v. the United Kingdom judgment of 5 November 1981,
Series A no. 46, p. 17, para. 39).
The Government argue that the fact that a time-limit has been
exceeded should not always, regardless of the circumstances of the
case, lead to the termination of a detention. According to Dutch case-
law regarding Section 509q CCP, which provides that placement at the
Government's disposal remains in force until the decision on a request
to extend it has become irrevocable, a placement is not unlawful
because the decision on the request to extend it was only given after
the date on which the placement was due to expire. Only in certain
circumstances does the State have an obligation to terminate a
placement as a result of the fact that its statutory period has
expired. Given that in the present case the Groningen Regional Court
held that these circumstances did not exist, the applicant's placement
after 3 July 1993 was, in the Government's opinion, lawful.
The Government submit that, in principle, when the time-limit
referred to in Section 509o para. 1 CCP is exceeded, this should lead
to the Public Prosecutor's request being declared inadmissible. This
decision would mean the termination of the placement at the
Government's disposal either immediately (in cases in which the
judgment is given after the date on which the placement was due to
expire) or within a very short time if the expiry date has not yet been
reached.
The Government refer, however, to case-law which shows that in
assessing whether the time-limit pursuant to Section 509o para. 1 CCP
has been exceeded, the court always examines the special circumstances
involved. In addition, it considers the extent to which the interests
of the individual concerned have been violated. The provisions of the
said section are designed to ensure that the individual concerned
should be informed of the Public Prosecutor's intentions early enough
to be able to seek the assistance of counsel. If the time-limit has
been exceeded but the individual concerned has nonetheless been able
to prepare himself adequately for the hearing, the Public Prosecutor's
request is generally not declared inadmissible. According to the
Government, the Groningen Regional Court acted in conformity with this
case-law in the present case.
The applicant does not elaborate on the lawfulness of his
detention after 3 July 1993 and prior to the Regional Court's decision
to extend it. However, the Commission understands the application to
include the applicant's complaint that after expiry of the statutory
period on 3 July 1993 his detention had become unlawful since no
request for its extension had been received by the registry of the
Regional Court. Moreover, the applicant argues that the Public
Prosecutor's request to extend his placement should have been declared
inadmissible by the Groningen Regional Court for having been lodged out
of time without there being any circumstances which could have
justified the delay. Had the request been declared inadmissible, this
would have entailed the immediate termination of the placement in view
of the fact that its statutory period had already expired. Instead, the
applicant was left in uncertainty for a long period of time and when
the authorities, upon his instigation, discovered their mistake, a
hearing was arranged very quickly, leaving him little time to obtain
legal assistance.
The Commission, having regard to the parties' submissions and the
case-law of the Convention organs, considers that these complaints
raise questions of fact and law which require an examination of the
merits. The complaints cannot, therefore, be declared inadmissible as
being 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.
2. The applicant also complains under Article 5 paras. 1 (a) and 4
and Article 13 (Art. 5-1-a, 5-4, 13) of the Convention that no appeal
was available against the decision to extend his detention.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government explain that appeal proceedings usually take
approximately one year and that for that reason no appeal lies against
the first extension of a placement at the Government's disposal for the
duration of one year. By lodging an appeal against a decision to extend
the placement by one year, a person could, in effect, avoid remaining
in care in the final year. The interests at stake here were considered
to outweigh the interests at stake in creating scope for an appeal.
The applicant submits that appeal proceedings only rarely take
one year before a decision is given. Furthermore, pending the appeal
proceedings the placement is not suspended. In the applicant's opinion,
the decision to extend a placement has such serious consequences that
an appeal should lie in all cases.
The Commission finds this complaint to be so closely linked to
the main complaints relating to Article 5 paras. 1 and 4
(Art. 5-1, 5-4) of the Convention that it should also be declared
admissible.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy