AS TO THE ADMISSIBILITY OF
Application No. 11487/85
by Jonas Mohamed Rafiek KOENDJBIHARIE
against the Netherlands
The European Commission of Human Rights sitting in private on
9 December 1988, the following members being present:
MM. S. TRECHSEL, Acting President
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. J. RAYMOND, Deputy Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 March 1985
by Jonas Mohamed Rafiek KOENDJBIHARIE against the Netherlands and
registered on 11 April 1985 under file No. 11487/85;
Having regard to the observations submitted by the respondent
Government on 4 March 1987 and the observations in reply submitted by
the applicant on 22 May 1987;
Having regard to the parties' oral submissions at the hearing
on 9 December 1988;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case as presented by the parties may be
summarised as follows.
The applicant is a Dutch citizen, born in 1954 in Paramaribo,
Surinam. At present he resides in the Hague, the Netherlands. In the
proceedings before the Commission he is represented by Mrs. G.E.M.
Later, a lawyer practising in the Hague.
While on a suspended sentence for rape, the applicant was
convicted and sentenced on a new rape charge by the Regional Court
(Arrondissementsrechtbank) of the Hague to six months imprisonment and
unconditional placement at the Government's disposal to receive
psychiatric treatment. Upon appeal by both parties, the Court of
Appeal (Gerechtshof) of the Hague increased the sentence to nine months
and unconditional placement on 22 June 1979. The applicant's appeal
against this decision to the Supreme Court (Hoge Raad) was rejected on
22 January 1980.
After serving his prison sentence, the applicant's placement
at the Government's disposal began. Under Section 35 b of the Dutch
Criminal Code, placement begins as soon as the judgment has become
irrevocable, but does not run while the convict is otherwise in
detention. A court order for placement at the Government's disposal
in order to receive psychiatric treatment is valid for two years,
unless the Government terminates the period earlier. Under Section 37
f of the Criminal Code, placement may be prolonged for one or two years
upon an application by the Public Prosecution Department to the
sentencing court. This application must be made between one and two
months before the termination of the period of placement. Under
Section 37 h of the Criminal Code the court must decide on the
prolongation request within two months of the submission of the
application. There is no limit to the number of times a period of
placement at the Government's disposal can be prolonged.
On 24 September 1981, the applicant ran away from the
psychiatric hospital where he was being treated. On 16 April 1982 he
was arrested on a new charge of rape. On 22 July 1982 he was acquitted
of this charge by the Regional Court of the Hague. Between 16 April
and 22 July he had been in detention on remand. After 22 July he was
returned to the psychiatric hospital.
In the meantime, the applicant's placement at the Government's
disposal had been prolonged for another two years. This period of
placement was due to terminate on 2 April 1984. When 2 April had
passed without an application for prolongation having been made, the
applicant considered that he was being detained unlawfully. He
instituted summary proceedings on 17 May 1984, requesting his immediate
release from the psychiatric hospital, before the President of the
Regional Court of the Hague.
However, the Public Prosecutor submitted that, under Section
37 b of the Criminal Code, the applicant's period of placement at the
Government's disposal had been suspended between 16 April and 22 July
1982 when he had been in detention on remand. Consequently, his
current period of placement did not terminate on 2 April 1984, but on
8 July 1984. The respondent Government maintain that this information
had been transmitted to the court and the Public Prosecutor by letter
of 27 April 1984 from the Ministry of Justice. The Government state
that upon a request by the applicant's counsel, she was informed of
this on 30 March 1984.
The applicant argued that, as he had been acquitted of the
charge for which he had been in detention on remand in 1982, that
detention had not been justified. Therefore, the suspension referred
to in Section 37 b of the Criminal Code was not applicable.
On 29 May 1984, the President of the Regional Court rejected
the applicant's request. The President considered that the applicant
had been detained in 1982 by court order. The detention had therefore
been lawful, and had suspended the applicant's period of placement at
the Government's disposal.
The applicant appealed to the Court of Appeal of the Hague
against this decision. On 18 April 1985 the Court of Appeal confirmed
the decision of the President of the Regional Court. It considered,
inter alia, that although the applicant was acquitted of the charge of
1982, this did not mean that his detention on remand on suspicion of
that charge had been unlawful. The Court also decided on another
claim, which the applicant had made, concerning the proceedings
outlined below.
In the meantime, on 17 May 1984, the Public Prosecutor made a
request to the original sentencing court for prolongation of the
applicant's placement at the Government's disposal for one more year.
On 21 September 1984, this Court, having held hearings on 4 June 1984
and 17 August 1984 at which the applicant was present, decided that the
applicant was to be kept at the Government's disposal for another year.
The applicant's lawyer was apparently informed of this decision on 31
October 1984. The hearing of 17 August was for the purpose of taking
supplementary expert testimony on the applicant's fitness to leave the
hospital.
In the appeal proceedings on the release request, as outlined
two paragraphs above, the applicant claimed that the prolongation
decision of 21 September 1984 had not been made within two months of
the Public Prosecutor's prolongation request, as stipulated in Section
35 h of the Criminal Code. Therefore, his continued detention was
unlawful. The Court of Appeal, however, held that, in accordance with
existing case-law, the delay did not affect the validity of the
prolongation decision.
In September 1984 the applicant again escaped from the
psychiatric hospital.
On 31 May 1985, the Public Prosecutor again requested that the
applicant be kept at the Government's disposal for another year, but
on 25 June 1985, the Court of Appeal of the Hague rejected this request
since it found that there were not sufficient reasons to keep the
applicant at the Government's disposal. Consequently, the applicant
is no longer placed at the Government's disposal. COMPLAINTS
1. The applicant claims that his detention after the prolongation
decision of 21 September 1984 was in violation of Article 5 para. 1 (a)
or alternatively para. 1 (e) of the Convention, on two counts. Firstly,
because the Public Prosecutor's request for prolongation of 17 May 1984
was made after his previous period of placement had ended on 2 April
1984. Secondly, because the Court decided on the prolongation request
on 21 September 1984, which was more than two months after the request
for prolongation was made. Both counts are at variance with the
explicit provisions of the Dutch Criminal Code, Section 35 f and 35 h
respectively. Therefore, the applicant alleges, he was not detained
in accordance with a procedure prescribed by law.
2. The applicant also alleges that the Court of Appeal of the
Hague did not decide "speedily" on the prolongation request of 1984 and
did not properly examine the lawfulness of his detention. He invokes
Article 5 para. 4 of the Convention in this respect.
3. The applicant further complains that he did not have a fair
trial and that the Court refused to hear independent experts on his
psychiatric condition. He alleges a violation of Article 6 paras. 1
and 3 (d) of the Convention.
4. In addition, the applicant complains that he was the victim of
discrimination because of his national origin and he alleges a
violation of Article 14 of the Convention, read in conjunction with
Article 6 para.1 of the Convention.
5. Finally, the applicant claims that the way he was treated and
assessed by the staff of the psychiatric hospital amounted to inhuman
and degrading treatment contrary to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 March 1985 and registered
on 11 April 1985.
On 11 December 1986 the Commission examined the admissibility
of the application and decided, in accordance with Rule 42 para. 2 (b)
of the Rules of Procedure, to give notice of the application to the
respondent Government and to invite them to submit before 13 March 1987
their observations on the admissibility and merits of the application.
In particular, the Government was requested to address the issues
arising under Article 5 para. 4 and Article 6 para. 1 of the
Convention.
The observations of the respondent Government were submitted
on 4 March 1987. An English translation was forwarded on 30 March
1987.
The applicant was invited to submit observations in reply
before 6 May 1987. Following an oral request for an extension of the
time-limit, the applicant's representative submitted her observations
in reply on 22 May 1987.
The applicant was granted legal aid by the Commission on 13
March 1987.
The Commission examined the application on 13 July 1988 and
decided to adjourn it.
On 12 October 1988 the Commission decided to hold a hearing on
the admissibility and merits of the application.
The hearing was held on 9 December 1988. The parties were
represented as follows:
For the Respondent Government
Ms. D.S. van HEUKELOM Agent
Mrs. R.E. van GALEN-HERRMANN Ministry of Justice, Adviser
For the applicant
Ms. G.E.M. LATER Counsel
Mr. W.J.J. LOS Legal Assistant
Mr. M.Th.M. ZUMPOLLE Legal Assistant
THE LAW
The applicant has complained that, firstly, the request of 17
May 1984 to prolong his detention was made after his period of
placement at the Government's disposal had ended on 2 April 1984.
Secondly, the prolongation decision of 21 September 1984 was taken more
than two months after the prolongation request. For these two reasons,
the applicant alleges that the prolongation of his detention was not
in accordance with a procedure prescribed by law. He has submitted
that, at any rate, the prolongation decision was not taken speedily.
Furthermore, he has complained of the unfairness of the prolongation
proceedings, discrimination on the basis of his national origin and
allegedly inhuman treatment in the institution where he was placed at
the Government's disposal. The applicant has invoked Articles 3, 5
paras. 1 and 4, 6 paras. 1 and 3 (d), and 14 (Art. 3, 5-1, 6-1, 6-3-d)
in conjunction with Article 6 (Art. 14+6) of the Convention.
The respondent Government have submitted that the applicant's
period of placement at the Government's disposal did not end on 2 April
1984, because, in accordance with Section 37b para. 3 of the Dutch
Penal Code, the applicant's period in detention on remand in 1982 was
added to it. The respondent Government have stated that the
prolongation procedure was carried out in accordance with legal
practice in the Netherlands, as defined by the Supreme Court.
Furthermore, the Government have pointed out that the apparent lack of
speed with which the prolongation decision was taken was due to the
Court of Appeal's decision to investigate further certain factors which
militated in favour of not prolonging the applicant's detention. In the
event, the Government submit, the applicant was not affected by the
delay, because the decision which the Court of Appeal took on 21
September 1984 is the minimum decision which they would have taken on
4 June 1984, had it not been considered necessary to examine those new
factors. As to the applicant's other complaints, the Government submit
that these have not been substantiated.
The Commission notes that it is not in dispute between the
Parties, that the domestic remedies have been exhausted, as required
by Article 26 (Art. 26) of the Convention.
The Commission considers that the application raises important
questions of law and fact, in particular pertaining to the observance
of the guarantees contained in Article 5 paras. 1 and 4 (Art. 5-1, 5-4)
of the Convention, which can only be determined in an examination of
the merits of the case. No grounds for inadmissibility having been
established, the application must be declared admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)