AS TO THE ADMISSIBILITY OF
Application No. 26331/95
by J.G.F.R.
against the Netherlands
The European Commission of Human Rights (Second Chamber) sitting
in private on 28 February 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 14 August 1994 by
J.G.F.R. against the Netherlands and registered on 27 January 1995
under file No. 26331/95;
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 1974, and is currently
detained. Before the Commission he is represented by Mr. G. Ris, a
lawyer practising in Dordrecht, the Netherlands.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. Particular circumstances of the case
Joint criminal proceedings were instituted against the applicant
who was charged with being an accomplice to manslaughter and with
aggravated theft. These offences were committed at different times when
the applicant had absconded from the institution for psychiatric
treatment of juvenile offenders (Inrichting voor Buitengewone
Behandeling) where he had been placed pursuant to a decision of
12 November 1990 of the Regional Court (Arrondissementsrechtbank) of
Rotterdam. The prosecution in respect of the charge of aggravated theft
commenced when the applicant was still a minor, whereas at the time the
prosecution in respect of the other charge commenced he had come of
age.
Public hearings took place before the Dordrecht Regional Court
on 16 July, 17 and 18 September 1992. The applicant submits that the
Regional Court established that the indictment in which the applicant
was charged with both offences contained a mistake which would have
entailed its nullity. However, contrary to the legal provisions at the
time which did not allow for a correction of the indictment, the
Regional Court permitted the Public Prosecutor to correct the mistake.
This was, however, not recorded in the procès-verbal of the hearing.
On 1 October 1992, the Regional Court acquitted the applicant of
the charges of theft, but convicted him of being an accomplice to
manslaughter, sentenced him to four years' imprisonment and ordered his
subsequent placement at the disposal of the Government
(terbeschikkingstelling) during which time he was to receive treatment
(verpleging).
Both the applicant and the Prosecutions Department filed an
appeal against the Regional Court's decision with the Court of Appeal
(Gerechtshof) of The Hague. Meanwhile, on 25 January 1993, the
Rotterdam Regional Court extended the applicant's placement in the
institution for psychiatric treatment of juvenile offenders, taking
into account, inter alia, the fact that he had been convicted for being
an accomplice to manslaughter committed at a time when he had absconded
from the institution.
As regards the criminal proceedings, a hearing before The Hague
Court of Appeal was held on 5 March 1993 and commenced in camera. The
applicant was told that he had the right to remain silent and his
defence counsel raised an objection regarding the procès-verbal of the
hearing before the Regional Court, which, he submitted, was incorrect
as it did not mention that the prosecution had been allowed to correct
a mistake in the indictment which should have entailed its nullity. The
Court of Appeal rejected this objection and decided to separate the
charges. It quashed the Regional Court's decision in respect of the
charge of aggravated theft and referred this case back to the Regional
Court, holding that this latter court should have tried the applicant
in camera given that he had been a minor at the time the prosecution
for this offence had commenced.
The Court of Appeal subsequently ordered the doors to be opened
and continued the hearing in respect of the charge of complicity to
manslaughter. The applicant and two expert-witnesses were heard before
the hearing was adjourned to enable the expert-witnesses to report on
the applicant's personality. The hearing was resumed on 28 May 1993.
On 11 June 1993 the Court of Appeal quashed the Regional Court's
judgment also in respect of the charge of complicity to manslaughter.
It convicted the applicant of this offence, sentenced him to six years'
imprisonment and ordered his subsequent placement at the disposal of
the Government during which time he was to receive treatment.
The applicant filed an appeal in cassation against this last
decision. He argued, inter alia, that the prosecution should have been
declared inadmissible by the Court of Appeal since the criminal charge
at issue, i.e. complicity to manslaughter, had already been determined
by the Rotterdam Regional Court in its decision extending his placement
in an institution for psychiatric treatment of juvenile offenders.
The applicant further complained of the proceedings before the
Court of Appeal which had begun in camera, preventing counsel from
raising his objections as regards the procès-verbal in public. He
finally alleged that the Court of Appeal had wrongly concluded that the
applicant suffered from a mental deficiency or derangement and that he
should therefore not have been placed at the disposal of the Government
to undergo enforced psychiatric treatment.
The Supreme Court (Hoge Raad) rejected the appeal in cassation
on 15 February 1994. On 14 August 1994 the applicant submitted a copy
of his application to the Commission to the Supreme Court and requested
the latter to reconsider its decision in view of the contents of the
application. The applicant submits that as long as the Supreme Court
does not reconsider its decision, domestic remedies must be considered
to have been exhausted.
B. Relevant domestic law and practice
In the Netherlands, where majority is reached at the age of
eighteen, juvenile penal law and criminal procedure provide for
exceptions to the general law.
Juvenile criminal procedure applies if the suspect has not yet
reached the age of eighteen when a prosecution against him is commenced
pursuant to Section 487 of the Code of Criminal Procedure (Wetboek van
Strafvordering, hereinafter referred to as CCP). Juvenile criminal
proceedings are held in camera unless there are co-accused who had
reached the age of eighteen at the time the prosecution commenced
(Section 500f CCP).
Juvenile penal law differs from regular penal law in that it has
its own system of punishments (straffen, Section 77g Criminal Code,
hereinafter referred to as CC) and curative or protective measures
(maatregelen, Section 77h CC). One of these measures is committal to
an institution for psychiatric treatment of juvenile offenders. This
is a curative measure applied only to young persons with impaired
mental development or suffering from a serious mental disturbance
(Section 77k CC). If the interests of the person concerned so require,
the placement may be extended after every two years but it will end at
the age of twenty-one.
Under regular penal law, 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 CC). In deciding on this matter, account is taken of advice and
reports concerning the personality of the accused as well as of the
seriousness of the offence and the number of previous convictions. 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 CC).
COMPLAINTS
The applicant complains under Article 3 of the Convention that
enforced psychiatric treatment of a person who does not suffer from a
mental deficiency or derangement amounts to torture.
The applicant further complains that his conviction by the Court
of Appeal violated the principle of "ne bis in idem" in that he had
already been punished for the offence of complicity to manslaughter
when the Rotterdam Regional Court decided to extend his placement in
an institution for psychiatric treatment of juvenile offenders. In this
respect he argues that this principle is enshrined in Article 6 of the
Convention and that Article 4 of Protocol No. 7 serves merely as a
clarification of that provision.
As regards Article 6 of the Convention, the applicant also
complains that part of the proceedings before the Court of Appeal were
conducted in camera. This allowed the Court of Appeal not to react in
public to defence counsel's statement that the procès-verbal of the
hearing before the Regional Court was incorrect and that the
prosecution had been allowed to change the indictment although the
indictment should have been declared null and void.
THE LAW
1. The applicant complains that the enforced psychiatric treatment
imposed on him constitutes a violation of Article 3 (Art. 3) of the
Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission notes in the first place that it does not appear
that the applicant has complied with the obligation contained in
Article 26 (Art. 26) of the Convention to exhaust domestic remedies
since he has not invoked Article 3 (Art. 3), either in form or in
substance, in the domestic proceedings. It can furthermore not agree
with the applicant that domestic remedies should be considered to have
been exhausted by virtue of his request to the Supreme Court to
reconsider its decision in light of the application lodged with the
Commission, as such a request cannot be considered an effective remedy
which needs to be exhausted for the purposes of Article 26 (Art. 26)
of the Convention.
Even assuming that domestic remedies have been exhausted, the
Commission recalls that it is not competent to examine alleged errors
of fact or law committed by national courts, except where it considers
that such errors might have involved a possible violation of the rights
and freedoms set forth in the Convention (cf. No. 21283/93, Dec.
5.4.94, D.R. 77-A, p. 81). In the circumstances of the present case,
where the Court of Appeal reached its decision after having consulted
two expert-witnesses who reported on the applicant's personality, the
Commission finds that such a situation does not occur.
It follows that this aspect of the application is in any case
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant further argues that his conviction by the Court of
Appeal amounted to an infringement of the principle of "ne bis in
idem", which, according to the applicant, is enshrined in Article 6
(Art. 6) of the Convention.
The Commission recalls, however, that according to its constant
case-law the Convention guarantees neither expressly nor by implication
respect for this principle (cf. No. 7680/76, Dec. 16.5.77, D.R. 9, p.
190; No. 8945/80, Dec. 13.12.83, D.R. 39, p. 43; and No. 11069/84, Dec.
7.9.89, D.R. 62, p. 5). Given, furthermore, that the Netherlands has
not ratified Protocol No. 7 (P7), the Commission has no competence to
deal with this aspect of the applicant's case, which must be rejected
as being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
3. The applicant finally complains that the proceedings before the
Court of Appeal did not comply with the requirements of Article 6
(Art. 6) of the Convention in that he did not have a fully public
hearing.
Article 6 (Art. 6) of the Convention, insofar as relevant,
provides:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a ... public hearing ... Judgment
shall be pronounced publicly but the press and public may be
excluded from all or part of the trial ..., where the interests
of juveniles ... so require ... "
The Commission notes that the beginning of the hearing before the
Court of Appeal took place in camera. Given that juvenile criminal
procedure was applicable to one of the charges against the applicant
and having regard to the second sentence of paragraph 1 of Article 6
(Art. 6-1) of the Convention, the Commission finds that this does not
raise an issue under this provision insofar as the proceedings taking
part in camera related to this particular charge.
The Commission observes, however, that when the applicant's
defence counsel complained of the procès-verbal which had been drawn
up following the hearings before the Regional Court, the hearing was
still being conducted in camera. In the applicant's view the Court of
Appeal was in this way able to avoid having to deal with this matter
in public.
It is true that following the opening of the doors, the
proceedings continued rather than recommenced. Thus, the applicant was,
for example, not told again that he had the right to remain silent.
However, it does not appear that the applicant's defence counsel
repeated his complaints concerning the procès-verbal, which would have
necessitated the Court of Appeal to give a reaction in public. Nor does
it appear that he was in any way prevented from doing so.
In the circumstances of the present case the Commission cannot
find that the fact that part of the hearing was conducted in camera
violated the applicant's right to a public hearing within the meaning
of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy