AS TO THE ADMISSIBILITY OF
Application No. 12228/86
by Jacobus KEUS
against the Netherlands
The European Commission of Human Rights sitting in private
on 6 July 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to:
- the Commission's decision of 2 December 1986 to bring
the application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- ii -
- the observations submitted by the respondent Government
on 4 March 1987 and the observations in reply submitted
by the applicant on 15 May 1987;
- the Report of April 1988 provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
The applicant is a Dutch citizen, born in 1963. In the
proceedings before the Commission he is represented by Mrs. G.E.M. Later,
a lawyer practising in the Hague.
On 15 December 1981, the applicant was convicted of armed
robbery and homicide and sentenced to four years' imprisonment by the
Regional Court (Arrondissementsrechtbank) of the Hague. The Court
further ordered that the applicant be placed at the Government's
disposal subsequent to his prison sentence.
While serving his prison sentence, the applicant escaped
on several occasions and, in total, spent several months outside
detention. After having served two-thirds of his sentence, he was
released on probation on 3 May 1984. Thereafter he was detained at
the Government's disposal in a psychiatric hospital.
It appears that on 29 November 1985 the applicant ran
away from the psychiatric hospital where he was being treated.
On 4 December 1985, the Public Prosecutor requested the
Regional Court of the Hague that the applicant's placement at the
Government's disposal be prolonged for two years. Neither the
applicant nor his lawyer were informed of this request.
On 18 December 1985, the applicant's lawyer wrote to the
hospital's director requesting that the applicant's money be
transferred to her account. On the same day, the applicant's lawyer
requested the Minister of Justice that the applicant should no longer
be placed at the Government's disposal.
When the applicant contacted the psychiatric hospital by
telephone on 19 January 1986, he was informed that, on 7 January 1986,
his placement at the Government's disposal had been prolonged for two
years by the Regional Court of the Hague.
After reporting back to the psychiatric hospital, the
applicant has been detained since 22 February 1986, on the basis of
that prolongation decision.
In a letter of 20 August 1986, the Deputy Minister of Justice
informed the applicant's lawyer that the applicant's placement at the
Government's disposal would not cease for the time being. This letter
was received by the lawyer on 26 August 1986.
COMPLAINTS
The applicant complains that neither he nor his lawyer were
heard by the Regional Court of the Hague when it had to decide on the
prolongation of the applicant's placement at the Government's
disposal. The application submits that all authorities concerned were
aware that he was represented by a lawyer. The applicant alleges a
violation of Article 5 para. 1 (a) alternatively para. 1 (e) (Art. 5-1-a)
(Art.5-1-e), of the Convention.
The applicant further complains that neither he nor his lawyer
were informed of the request for prolongation of his placement at the
Government's disposal, and he alleges a violation of Article 5 para. 2
(Art. 5-2) of the Convention in this respect.
In addition, the applicant complains that he did not have the
possibility of challenging the legality of his placement at the
Government's disposal. The sole possibility open to him was to
request the Minister of Justice to order that he be no longer placed
at the Government's disposal. Such a request was made on
18 December 1985 and rejected by letter of 20 August 1986. The
applicant alleges a violation of Article 5 para. 4 (Art. 5-4) of the Convention
in this respect.
Moreover, the applicant complains that since he was not
informed of the proceedings concerning the prolongation of his
placement at the Government's disposal, he did not have a fair trial
and he alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant also claims that the proceedings concerning the
prolongation of his placement at the Government's disposal were the
consequence, and the continuation, of the determination of a criminal
charge against him. He complains that as he was unaware of the
proceedings instituted against him, he was not given the opportunity
of preparing his defence, and that he could not be assisted by a
lawyer. Accordingly, he alleges a violation of Article 6 para. 3 (Art. 6-3) of
the Convention.
Furthermore, the applicant complains that since no appeal is
possible against the decision of the Regional Court to prolong his
placement at the Government's disposal it will take two years before
the case can again be brought before a court, by way of a request for
prolongation. The applicant submits that this constitutes a violation
of Article 5 para. 4 (Art. 5-4) of the Convention, read in conjunction with
Article 6 para. 1 (Art. 5-4 + Art. 6-1) of the Convention.
Finally, the applicant claims that since he has been detained
in contravention of Article 5 (Art. 5) of the Convention, he is entitled to
compensation under Article 5 para. 5 (Art. 5-5) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 13 June 1986 and registered
on 20 June 1986.
On 2 December 1986 the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure, to submit written observations on admissibility and merits
before 6 March 1987.
The Government's observations were submitted on 4 March 1987
and the applicant's observations in reply on 15 May 1987.
On 13 March 1987 the Commission decided that the applicant be
granted legal aid.
SUBMISSIONS OF THE PARTIES
A. The Government&S
1. On the facts
National legislation
Placement at the Government's disposal is based on
Section 37 (b) of the Dutch Penal Code (Wetboek van Strafrecht). A
period of placement lasts two years and then may be prolonged.
Placement begins from the moment at which the judge's decision becomes
final, but does not run while the person concerned is otherwise in
detention (see para. 2 of Section 37 (b) Penal Code). A prolongation
of the placement is decided upon by the original sentencing court upon
an application made by the Public Prosecutor between one and two
months prior to the expiration of the current period of placement.
The application must be accompanied by a statement concerning the
physical and mental condition of the person, as well as a signed,
reasoned statement by the consulting psychiatrist concerning the
desirability of continued placement.
In accordance with the Penal Code and the instructions of the
Minister of Justice (by circular of 16 April 1980), the judge must
allow the person concerned an opportunity to be heard before taking a
decision on the prolongation. The person may be summoned to appear
before the court and the Public Prosecutor, as well as the lawyer of
the person concerned, may be present at the hearing. A decision on
prolongation for one or two years is to be taken within two months of
the public prosecution's application. This decision is not open to
appeal.
The facts of the case
To arrive at the date on which the applicant's first two-year
period of placement at the Government's disposal terminated, it is
necessary to take into account the following facts.
The applicant was sentenced on 15 December 1981, the sentence
became final on 30 December 1981. At that moment the four-year prison
term began. After having served two thirds of this sentence the
applicant could be released on probation. Because he had escaped on
several occasions, and the serving of a sentence is suspended while
the prisoner is fugitive, the periods of time not spent in prison were
added on to his sentence. This amounted to 109 days. He received a
supplementary punishment of twenty-nine days. The result was that the
two-thirds of his sentence terminated on 3 May 1984, when he was
released on probation, by decision of the Deputy Minister of Justice
of 1 May 1984.
The period of placement at the Government's disposal begins on
the date the judge's decision becomes final. It is suspended only by
any period of time spent in detention on remand or while serving a
prison sentence. Therefore, every period of time when the applicant
had escaped and his prison sentence was suspended, he is to
be considered as having been at the Government's disposal. When he was
released on probation on 3 May 1984 his placement at the Government's
disposal automatically began. However, as his fugitive periods are
also considered as placement at the Government's disposal, on 3 May 1984
he had, in fact, already been in placement for 109 days. As a
result, the expiration date of his first two years of placement was
not 3 May 1986, but 14 January 1986. A letter stating this was sent
to the Public Prosecutors and the hospital directors concerned.
During the applicant's placement in the "Dr. H. van der Hoeven"
Clinic in Utrecht, he escaped on several occasions. The last occasion
was 29 November 1985. He could therefore not be reached when the
Public Prosecutor made the application for prolongation on 4 December 1985.
This application was accompanied by the required statements concerning
the applicant's condition and the necessity of his prolonged
placement. On 7 January 1986, the Regional Court of the Hague took the
prolongation decision. The applicant reported back to the Clinic on
22 February 1986 and was transferred to another Clinic two days
later. Beginning in July 1986 he began working towards a return to
society by means of temporary leave periods.
2. Article 5 para. 4 (Art. 5-4)
In the prolongation procedure, a summons was prepared on
13 December 1985 to have the applicant appear before the judge in order
to be heard. This could not be served on the applicant because he was
fugitive. The applicant's lawyer only has a right to be present in
court if there is a hearing.
Both the applicant and his lawyer could have known that the
expiration date of the two-year period of placement was 14 January 1986
by asking the Public Prosecutor or the hospital director. The
prolongation decision was taken on 7 January 1986 by the Regional Court
of the Hague, which is an independent judicial body established by
law.
Between the date of this decision and that of the next
prolongation decision, the only way the applicant can request to be
released is by applying to the Minister of Justice. On 18 December 1985,
the applicant had his lawyer make such an application. The Minister
refused to deal with this request while the applicant was fugitive.
After the applicant's return to the Clinic, the Minister, taking into
account the advice of the director of the Clinic, informed the lawyer
on 20 August 1986 that the placement at the Government's disposal
would not be terminated for the time being.
That the procedure before the Minister of Justice does not
satisfy the requirements of Article 5 para. 4 (Art. 5-4) of the Convention
cannot be maintained, because this procedure is only supplementary, and does
not replace the prolongation procedure, which takes place before an independent
court, and is established by law.
The Government consider that the prolongation procedure
followed in the present case satisfies the requirements of Article 5
para.4 (Art. 5-4) of the Convention because it was conducted by a court
in accordance with the relevant provisions of national law. That
neither the applicant nor his lawyer were heard, does not, in the given
circumstances, violate any basic legal principles in such a way that
this decision should not be executed.
3. Article 6 para. 1 (Art. 6-1)
The proceedings in no way affect the applicant's right to
administer his property or in any other way amount to a determination
of his civil rights and obligations. Therefore Article 6 para. 1 (Art. 6-1) of
the Convention does not apply.
4. Article 5 para. 2 (Art. 5-2)
Without entering into the question of whether Article 5 para. 2
(Art. 5-2) of the Convention, which only speaks of persons who are arrested,
applies in this case, the Government consider that under Article 5
para. 4 (Art. 5-4) of the Convention the applicant is entitled to information
concerning the grounds for the prolongation request and the reasons
for granting the prolongation. The applicant did receive this
information.
5. Compensation under Article 5 para. 5 (Art. 5-4)
The legal regime concerning placement at the Government's
disposal does not provide for compensation. If it were established
that the applicant's prolongation was unlawful because in violation of
Article 5 (Art. 5-4) of the Convention, the applicant could sue the State for
having committed a wrongful act under Section 1401 of the Dutch Civil
Code (Burgerlijk Wetboek).
B. The applicant
1. On the facts
The applicant would point out that the information concerning
the expiration date of his initial two years of placement was notified
only to the Public Prosecutors of Utrecht and the Hague and to the
Directors of the Clinics where he had been placed. At no time was he
told that the expiration date was 14 January 1986 and he was under the
impression that it would be at the beginning of May 1986.
Furthermore, the applicant was never notified that an
application for prolongation had been made on 4 December 1985. He
never received, neither before nor after the Regional Court decision
of 7 January 1986, copies of the prolongation request or the
supporting documents concerning his mental and physical condition and
the consulting psychiatrist's statement on the desirability of
prolongation. Several written requests by the applicant's lawyer for
this information have as yet yielded no result.
2. Article 5 para. 4 (Art. 5-4)
The applicant was not aware of the expiration date of his
placement. He was not informed of the letter of 22 May 1984 by which
the Public Prosecutor and the Clinics were informed of this. He
cannot be held responsible for not having asked one of them about the
date.
The applicant escaped from the Clinic because he could not
agree with the treatment he received and he could not wait for the
prolongation proceedings, which he expected to take place in April or
May of 1986. Therefore, he made his release request to the Minister of
Justice on 18 December 1985, in accordance with Section 37 (e) of the
Penal Code. Surely, the Minister could have informed him at that time
that a prolongation request had been made against him on 4 December.
Furthermore, every official agency involved in this case was
demonstrably aware of the identity of the applicant's lawyer. She
should have been informed of the prolongation request. They had to
know that although the applicant was fugitive he could be reached
through her. Because the lawyer is entitled to be present during the
hearing of the applicant, under Section 37 (g) para. 7 of the Penal
Code, she should have been informed of the hearing date.
The applicant concludes that he was denied any opportunity to
present his arguments. In fact he was denied the right to bring his
case before a court which could order his release. Furthermore, the
procedure contained in the Penal Code for making a release request to
the Minister of Justice is in violation of Article 5 para. 4 (Art. 5-4) of the
Convention, because the Minister is not an independent court, and the
procedure contains no guarantees for the applicant.
3. Article 6 para. 1 (Art. 6-1)
Although the applicant did not lose the capacity to administer
his property when he was placed at the Government's disposal, it
appears from the file that the Director of the Clinic was not prepared
to deliver a sum of 8.000 - 9.000 guilders of the applicant's money.
The applicant intended to use that money to have an independent
authority testify on his behalf as to the necessity of his placement
at the Government's disposal.
4. Article 5 para. 2 (Art. 5-2)
The Government claims that the applicant received all the
information concerning the prolongation request, the supporting
statements and the prolongation decision of 7 January 1986. In fact,
he has received nothing and he still does not know what the reasons
were which supported the prolongation request. Only after numerous
requests by his lawyer was a copy of the decision itself sent to the
applicant on 26 August 1986, that is seven and a half months after
the decision was taken. The decision itself refers to all the
supporting documents and, therefore, the applicant cannot read the
reasons for the prolongation from it.
THE LAW
1. The applicant has complained that the decision to prolong his
placement at the Government's disposal was not taken in accordance
with a procedure prescribed by law because neither he nor his lawyer
were heard by the Court. He alleges a violation of Article 5 para. 1
(Art. 5-1) of the Convention in this respect. The relevant parts of Article 5
para. 1 (Art. 5-1) 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:
a. the lawful detention of a person after conviction by
a competent court;
...
e. the lawful detention of persons for the prevention
of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;"
The Government have stated that, as the applicant had
absconded, he could not be summoned to a hearing. The Government have
added that the applicant's lawyer, under Dutch law, had no independent
right to be heard on the applicant's behalf, but only a subsidiary
right to be present at the hearing. Consequently, the fact that the
applicant and his lawyer were not heard did not make the prolongation
decision unlawful under Dutch law.
2. The applicant has complained that neither he nor his lawyer
were informed of the request for prolongation of his placement at the
Government's disposal, or of the reasons supporting this request. He
invokes Article 5 para. 2 (Art. 5-2) of the Convention, which reads as follows:
"2. Everyone who is arrested shall be informed promptly,
in a language which he understands, of the reasons for his
arrest and of any charge against him."
While leaving it open whether Article 5 para. 2 (Art. 5-2) is
applicable to the present case, the Government have pointed out that the
applicant was entitled to information under Article 5 para. 4 (Art. 5-4) of the
Convention and that he in fact received such information.
3. The applicant has also complained that he did not have the
opportunity of challenging the lawfulness of his placement at the
Government's disposal before a court. He only had recourse to a
release request procedure before the Minister of Justice, which he
alleges does not satisfy the requirements of Article 5 para. 4 (Art. 5-4) of
the Convention. The provision reads 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 Government have stated that the applicant would have had a
court hearing if he had not absconded and that, under Dutch law, a
lawyer cannot replace the detained person at such a hearing.
4. The applicant has furthermore stated that since he was
detained in contravention of Article 5 (Art. 5) of the Convention, he is
entitled to compensation under Article 5 para. 5 (Art. 5-5) of the Convention
which provides as follows:
"5. Everyone who has been the victim of arrest or
detention in contravention of the provisions of this
Article shall have an enforceable right to compensation."
The Government have pointed out that, although the Penal Code
does not provide a facility for compensation in such cases, the
applicant could, if the detention was found to be contrary to
Article 5 (Art.5), bring a civil suit against the State for damages under the
provision on wrongful acts in Section 1401 of the Civil Code.
5. The applicant has complained that because he was not informed
that the prolongation procedure was to take place, he was denied a
fair hearing, in violation of Article 6 para. 1 (Art. 6-1) of the Convention,
which provides, inter alia, as follows:
"1. In the determination of his civil rights and
obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial
tribunal established by law."
The Government have stated that the procedure for prolongation
did not concern the determination of the applicant's civil rights and
obligations or of a criminal charge. The Government therefore
submitted that Article 6 (Art. 6) of the Convention was not applicable in the
present case.
6. The applicant, finally, has complained that the
proceedings concerning prolongation of his placement at the
Government's disposal were in consequence of, and a continuation of,
the determination of a criminal charge. He has alleged that as he was
unaware of the proceedings he was unable to prepare his defence, with
or without the assistance of a lawyer. He has submitted that he has
been denied the guarantees of Article 6 para. 3 (Art. 6-3) of the Convention,
which in relevant parts reads as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
.....
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when
the interest of justice so require;
....."
The Government have maintained that the whole of Article 6 (Art. 6) of
the Convention does not apply to this case.
7. The Commission finds that the present application raises
complex issues of law and fact under the Convention the determination
of which should depend on an examination of the merits of the
application. No other ground for inadmissibility having been
established, this application must therefore be declared admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE without prejudging the
merits of the case
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)