AS TO THE ADMISSIBILITY OF
Application No. 17132/90
by W.P.
against the Netherlands
The European Commission of Human Rights sitting in private on 8
January 1992, the following members being present:
MM.C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, 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 29 August 1990 by
W. P. against the Netherlands and registered on 7 September 1990 under
file No. 17132/90;
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 1967 and resident at
's-Hertogenbosch. She is represented before the Commission by Mrs.
G.E.M. Later, a lawyer practising in The Hague.
The facts, as they appear from the applicant's submissions, are
as follows.
After the applicant had been committed to a mental hospital by
a provisional order of the Burgomaster of 's-Hertogenbosch, she signed
a request to the District Court judge (Kantonrechter) in
's-Hertogenbosch for placement in a mental hospital by reason of mental
illness.
On 20 February 1990, the District Court judge visited her at the
hospital where she was interned on the basis of the Burgomaster's
order. She was then heard by the judge, and she objected to being
compulsorily interned. She was not assisted by a lawyer.
On the same day, the District Court judge issued an order for her
internment. In his decision, he referred to a medical certificate
issued under Section 16 of the Mentally Ill Persons Act
(Krankzinnigenwet) by Dr. J. Kool. The judge stated in his decision
that it appeared from the minutes of the hearing of the applicant and
the medical certificate that the applicant was in such a state of
mental illness that there existed a danger for herself, for other
persons or for the general safety of persons or property and that on
account of this danger internment in a mental hospital was necessary.
The applicant appealed to the Supreme Court (Hoge Raad), but her
appeal was rejected, the main reason being that a District Court
judge's decision on a matter of this kind was not subject to appeal.
However, the Supreme Court also made some comments on the question
whether the judge had been justified in considering that Dr. Kool had
not been treating the applicant at that time. As, in his certificate,
Dr. Kool had indicated another doctor as being the doctor treating the
applicant, it was understandable, in the Supreme Court's view, that the
District Court judge had concluded that the applicant was not in
treatment by Dr. Kool.
COMPLAINTS
The applicant alleges violations of Articles 5, 6, 13 and 14 of
the Convention. She complains, in particular,
a) that it is normally not possible under Dutch law to appeal
against a decision by which a District Court judge has ordered the
detention of a mentally ill person, whereas a similar decision by the
President of a Regional Court (Arrondissementsrechtbank) can be
appealed to the Supreme Court; this is, in the applicant's view a
discriminatory difference between the two procedures;
b) that no lawyer assisted her when she was heard by the District
Court judge, although it appears from the Supreme Court's case-law that
she should have been so assisted or, in any case, that it must appear
from the documents on what grounds such assistance was not deemed
necessary;
c)that she was not given access to her case-file, which made it
impossible for her to know on what basis the District Court judge had
taken his decision;
d) that Dr. Kool was the doctor who was treating her at that time
and was therefore not competent to issue a certificate under Section
16 of the Mentally Ill Persons Act;
e) that patients who are deprived of their liberty by a District
Court judge have no effective remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 29 August 1990 and registered
on 7 September 1990.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on 9
November 1990. It decided, pursuant to Rule 48 para. 2 (b) of its
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit written observations on
admissibility and merits.
The Government's observations were submitted on 25 February 1991.
The applicant's observations in reply were received on 14 June 1991.
THE LAW
The applicant alleges violations of Articles 5, 6, 13 and 14
(Art. 5, 6, 13, 14) of the Convention. Her complaints relate to the
following matters.
1. She first complains of discrimination in that it is normally not
possible under Dutch law to appeal against a decision by which a
District Court judge has ordered the detention of a mentally ill
person, whereas a similar decision by the President of a Regional Court
can be appealed to the Supreme Court.
The Commission notes that under Dutch law the simplified
procedure before a District Court judge is applied where detention is
requested by the person concerned or by a close relative or a guardian,
whereas the other procedure before the President of a Regional Court
is used where detention is requested by a public prosecutor.
Consequently, the existing procedural differences, including the
restrictions on the right of appeal in regard to decisions of a
District Court judge, must be considered to have a reasonable
justification and cannot be regarded as discriminatory within the
meaning of Article 14 (Art. 14) of the Convention.
This part of the application must therefore be rejected under
Article 27 para. 2 (Art. 27-2) of the Convention as manifestly
ill-founded.
2. The applicant complains that she was not assisted by a lawyer at
the hearing before the District Court judge on 20 February 1990.
The Government argue that in regard to this complaint the
domestic remedies have not been exhausted. In the Government's
opinion, an available remedy was a request for discharge from the
hospital together with a claim for compensation. They also refer to
the possibility of asking for release in summary proceedings (kort
geding) before the President of a Regional Court on the ground of
illegal detention.
The applicant contests that the remedies referred to by the
Government could be regarded as effective.
The Commission notes that the applicant did not have at her
disposal any remedy against the detention order itself. It considers
that the right to ask for a subsequent discharge cannot be seen as a
remedy against the detention order. Nor can the right to bring
proceedings for damages be regarded as sufficient in this context,
since such proceedings are not primarily aimed at obtaining the release
of the detained person.
As regards summary proceedings before the President of a Regional
Court, there can be no doubt that this is in Dutch law and practice an
important remedy against various illegal acts (Eur. Court H.R., Keus
judgment 25.10.90, Series A vol. 185-C, para. 16). However, in the
Government's brief remarks on such proceedings, it has in no way been
demonstrated that summary proceedings would have constituted an
effective remedy in the present case.
The Commission is therefore of the opinion that this complaint
should not be rejected on the ground of failure to exhaust domestic
remedies.
Both the applicant and the Government refer to a judgment of the
Supreme Court of 19 January 1990 from which it appears that in cases
regarding detention in a mental hospital the judge shall ask the person
concerned whether he or she wishes to have a lawyer and that, where the
person concerned is heard without being assisted by a lawyer, the
reasons for this shall appear from the case-file. The Government note
that this judgment concerned a case where, unlike in the present case,
detention had been requested by a public prosecutor and that the
question arises whether the same considerations apply to the present
case where the detention order has been requested by the person whose
detention was at issue. The Government add that this question was
answered in the affirmative by the Advocate-General at the Supreme
Court in his conclusions in the present case, and the Government defer
to the Commission's judgment on this point.
The Commission considers that this part of the application raises
important issues of fact and law whose determination should depend on
an examination of the merits of the complaint. It should therefore be
declared admissible.
3. The applicant complains that she was not given access to her
case-file, which made it impossible for her to know on what basis the
District Court judge had taken his decision.
The Government point out that according to the case-law of the
Supreme Court the person whose detention is requested under the
Mentally Ill Persons Act shall have the opportunity to read the
relevant documents before or during the hearing. The Government add
that there is nothing to show that the applicant was unable to exercise
this right; on the contrary, the fact that she herself applied for
detention indicates that she had seen the medical certificate issued
about her.
The applicant replies that the request which she signed contains
nothing about the medical certificate and that the conclusion that she
had seen that certificate is therefore unjustified.
The Commission considers that the present complaint is closely
connected with the complaint under 2 regarding the absence of a lawyer
and that it should therefore also be declared admissible.
4. The applicant refers to Section 16 of the Mentally Ill Persons
Act from which it appears that a detention order shall be based on a
medical certificate issued by a psychiatrist other than the one who is
treating the patient. She submits that Dr. Kool was the doctor who
treated her at the relevant time and that he was therefore not
competent to issue the certificate.
The Government have referred to the Supreme Court's finding that,
since the name of another doctor was indicated in the certificate as
being the doctor treating the applicant, the District Court judge's
assumption that Dr. Kool was not treating her was understandable.
The applicant has maintained her position on this point and, in
support of it, has referred to another medical certificate of 13
February 1990 in which it is stated that Dr. Kool was the doctor
treating her at that time.
The Commission considers that, in view of the uncertainty about
the facts, the present complaint cannot be considered manifestly
ill-founded. A further examination of the merits is required, and this
part of the application must therefore be declared admissible.
5. The applicant, referring to the limited competence of the Supreme
Court, finally complains that patients who are deprived of their
liberty by a District Court judge have no effective remedy.
According to Article 5 para. 4 (Art. 5-4) of the Convention,
everyone who is detained shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided by a court. Article
13 (Art. 13) of the Convention provides that everyone whose rights and
freedoms as set forth in the Convention are violated shall have an
effective remedy before a national authority.
The Commission considers that the present complaint is closely
connected with the complaints relating to Article 5 para. 1 (Art. 5-1)
of the Convention and that it should therefore also be declared
admissible.
For these reasons, the Commission, unanimously
- DECLARES INADMISSIBLE, the applicant's complaint of
discrimination with regard to the right of appeal,
- DECLARES ADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy