EUROPEAN COMMISSION OF HUMAN RIGHTS
SECOND CHAMBER
Application No. 17132/90
P.
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 8 December 1992)
TABLE OF CONTENTS
Page
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
PART I: STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . .3
PART II: SOLUTION REACHED . . . . . . . . . . . . . . . . . . . . . . . .4
INTRODUCTION
1. This Report relates to the application introduced under
Article 25 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms by P. against the Netherlands on
29 August 1990. It was registered on 7 September 1990 under file
No. 17132/90.
2. The applicant was represented before the Commission by
Mrs. G.E.M. Later, a lawyer practising in The Hague, the
Netherlands. The respondent Government were represented by their
Agent, Mr. K. de Vey Mestdagh, of the Ministry of Foreign Affairs.
3. On 8 January 1992 the European Commission of Human Rights
declared the application admissible with the exception of a
complaint under Article 14 of the Convention. It then proceeded to
carry out its task under Article 28 para. 1 of the Convention which
provides as follows:
"In the event of the Commission accepting a petition referred
to it:
a. it shall, with a view to ascertaining the facts,
undertake together with the representatives of the
parties an examination of the petition and, if need be,
an investigation, for the effective conduct of which the
States concerned shall furnish all necessary facilities,
after an exchange of views with the Commission;
b. it shall at the same time place itself at the disposal
of the parties concerned with a view to securing a
friendly settlement of the matter on the basis of
respect for Human Rights as defined in this Convention."
4. On 30 March 1992 the Commission referred the application to
the Second Chamber.
5. The Commission (Second Chamber) found that the parties had
reached a friendly settlement of the case and on 8 December 1992 it
adopted this Report which, in accordance with Article 28 para. 2 of
the Convention, is confined to a brief statement of the facts and
of the solution reached.
The following members were present when the Report was
adopted:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
PART I
STATEMENT OF THE FACTS
6. The applicant is a Dutch citizen, born in 1967 and resident
at 's-Hertogenbosch, the Netherlands.
7. After the applicant had been committed to a mental hospital
on 13 February 1990 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.
8. 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.
9. 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. K. 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.
10. 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. K. had not been treating the applicant at that time. As, in his
certificate, Dr. K. 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. K.
11. The applicant complained before the Commission that there had
been violations of Articles 5, 6, and 13 of the Convention in that,
inter alia, she had not been assisted by a lawyer at the hearing
before the District Court judge on 20 February 1990, that she had
not been given access to her case-file and that persons who are
deprived of their liberty by a District Court judge have no
effective remedy.
PART II
SOLUTION REACHED
12. Following the decision on the admissibility of the
application, the Commission placed itself at the disposal of the
parties with a view to securing a friendly settlement in accordance
with Article 28 para. 1 (b) of the Convention and invited the
parties to submit any proposals they wished to make.
13. In accordance with the usual practice, the Secretary, acting
on the Commission's instructions, contacted the parties to discuss
with them the possibilities of reaching a friendly settlement.
14. Between 20 February 1992 and 16 October 1992 the parties
exchanged various letters relating to the effort to reach a
friendly settlement of the case.
15. By letter of 16 October 1992 the applicant's lawyer informed
the Commission that the applicant had accepted the Government's
offer to pay a total amount of 7.500 Dutch guilders to the
applicant, which amount includes the applicant's legal costs, in
order to attain a friendly settlement of the application.
16. By letter of 19 October 1992 the Netherlands Government
informed the Commission that they had secured a friendly settlement
of the case with the applicant.
17. At its session of 8 December 1992 the Commission (Second
Chamber) noted that the parties had reached an agreement regarding
the terms of a settlement. It further found, having regard to
Article 28 para. 1 (b) of the Convention, that the friendly
settlement of the case had been secured on the basis of respect for
Human Rights as defined in the Convention.
18. For these reasons, the Commission adopted this Report.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy