Erkalo v. the Netherlands

Information Note on the Court’s case-law No.

September 1998

Erkalo v. the Netherlands - 23807/94

Judgment 2.9.1998

Article 5

Article 5-1

Lawful arrest or detention

Article 5-1-e

Persons of unsound mind

Continued detention of mentally ill person in spite of expiry of initial placement order: violation

[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]

I.GOVERNMENT’S PRELIMINARY OBJECTION (non-exhaustion of domestic remedies)

Reiteration of general principles concerning exhaustion of domestic remedies.

Applicant could not be faulted for failing to institute summary proceedings – under assumption public prosecutor’s request was lodged and processed in accordance with relevant domestic procedure – probable that application to institute summary civil proceedings would be refused since decision of Regional Court imminent.

Conclusion: objection dismissed (unanimously).

II.ARTICLE 5 § 1 OF THE CONVENTION

Since applicant was convicted by competent court and placed at government’s disposal in psychiatric institution, detention during period under consideration falls under Article 5 § 1 (a) and (e) of the Convention.

Domestic case-law recognises that only in certain circumstances State obliged to terminate placement order after expiry of statutory period and without decision on extension having been taken – while reasoning of Regional Court would appear to introduce element of uncertainty in application of Article 509o § 1 of Code of Criminal Procedure, applicant’s placement remained lawful under domestic law.

However, lawfulness of extension of applicant’s placement not decisive – detention must be in conformity with purpose of Article 5 § 1 of Convention (protection from arbitrariness) – for eighty-two days applicant’s placement not based on any judicial decision – lack of adequate safeguards to ensure applicant’s release would not be unreasonably delayed – Regional Court failed to take into account the interest of applicant in obtaining timely review of request – although relevant authorities aware placement order due to expire no steps taken to verify whether Regional Court received request and hearing date set – onus to ensure request for extension of placement order examined in time on competent authorities and not person concerned.

Conclusion: violation (eight votes to one).

III.ARTICLE 5 § 4 OF THE CONVENTION

Applicant’s argument on lack of speedy decision on public prosecutor’s request akin to allegation of breach of Article 5 § 1.

Conclusion: not necessary to examine complaint (unanimously).

IV.ARTICLES 5 § 4 AND 13 OF THE CONVENTION

Complaint not maintained before Court.

Conclusion: not necessary to examine complaint of its own motion (unanimously).

V.ARTICLE 50 OF THE CONVENTION

A.Damage

Pecuniary damage: no award.

Non-pecuniary damage: finding of violation constitutes sufficient just satisfaction.

B.Costs and expenses: Awarded in full.

Conclusion: respondent State to pay applicant specified sum in respect of costs and expenses (unanimously).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes

 

Full & Egal Universal Law Academy