AS TO THE ADMISSIBILITY OF
Application No. 12889/87
by Robbert SMIET
against the Netherlands
The European Commission of Human Rights sitting in private
on 10 July 1989, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
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 24 April 1987
by Robbert SMIET against the Netherlands and registered on 2 May 1987
under file No. 12889/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to the observations on the admissibility and
merits of the application submitted by the respondent Government on 8
January 1988;
Having regard to the observations submitted in reply by the
applicant on 30 March 1988;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1951 and at present
detained in a psychiatric hospital in Eindhoven, the Netherlands. In
the proceedings before the Commission he is represented by Ms. G.
Later, a lawyer practising in The Hague.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
On 18 August 1986 the applicant was detained by order of the
Burgomaster of Eindhoven, issued on the basis of Section 35b of the
Mentally Ill Persons Act (Krankzinnigenwet), and subsequently taken to
a psychiatric hospital. The order was based on a certificate of a
psychiatrist drawn up on 18 August, in which it was stated that the
applicant was paranoid and a danger to himself, to others or to public
order.
On 20 August 1986 the Public Prosecutor of 's-Hertogenbosch
made a request to the President of the Regional Court
(Arrondissementsrechtbank) of 's-Hertogenbosch, that the applicant's
detention (inbewaringstelling) be prolonged. Under Section 35i para.
1 of the Mentally Ill Persons Act the President should decide within
three days whether the detention should continue. Saturdays and
Sundays do not form part of the three-days' period.
On 21 August 1986 the Regional Court received the Public
Prosecutor's request and the relevant documents.
On 26 August 1986 the Acting President of the Regional Court
heard the applicant, his psychiatrist and his lawyer. The latter
argued that, considering that the request was made on 20 August 1986,
and that 23 and 24 August were a Saturday and Sunday, the time-limit
within which the President should have decided had already expired,
and that the request should therefore be rejected. The applicant
himself submitted that he had agreed to stay in a psychiatric hospital
voluntarily, until he found living accommodation.
On 27 August 1986 the President decided that the applicant's
detention should continue.
On 29 August 1986 the applicant appealed to the Supreme
Court. He complained that, even counting from the day on which the
Regional Court had received the Public Prosecutor's request, the
President had not observed the time-limit, as required under the
Mentally Ill Persons Act. Furthermore, he claimed that there were not
sufficient reasons to conclude that the detention was necessary in
order to avert immediate danger to himself or other persons, since
these reasons were mainly based on events in the past. Moreover,
detention was not necessary because he had agreed to stay in the
hospital voluntarily.
The Government submitted that on 15 September 1986 the
President of the Regional Court had authorised the applicant's placement
in a psychiatric hospital. The applicant submitted that it may not be
concluded from this that the authorisation took effect on 15 September
1986.
Under Section 35j of the Mentally Ill Persons Act detention
(inbewaringstelling) may last up to a maximum of three weeks after the
decision of the President. According to its recent case-law, the
Supreme Court declares an appeal against a decision to prolong the
detention inadmissible, if the period of three weeks has already
passed by the time the Supreme Court takes its decision, since the
applicant's interest in his appeal is then considered to have been
lost. Accordingly, in the present case, the applicant explicitly
requested the Supreme Court to decide on his appeal within three
weeks.
On 14 November 1986 the Supreme Court declared the appeal
inadmissible on the ground that the maximum period of three weeks had
already passed and that the appeal was no longer of any interest to
the applicant.
COMPLAINTS
The applicant, invoking Article 5 para. 1 (e) of the
Convention, complains that his detention was not lawful under Dutch
law because the prescribed time-limit was not observed by the Acting
President of the Regional Court. In addition, his mental state did not
represent such a danger to himself, to others or to public safety as
to make his detention necessary or desirable. Moreover, since the
applicant had agreed to stay voluntarily at the psychiatric hospital,
detention was not necessary.
The applicant also complains that the Supreme Court failed to
examine the legality of his detention contrary to Article 5 para. 4 of
the Convention.
On the basis of his allegations under Article 5 paras. 1 and 5
the applicant claims that he is entitled to compensation under Article
5 para. 5.
Finally the applicant complains that he did not have a fair
trial because the Supreme Court did not go into his complaints about
the Acting President's decision at all. The Supreme Court avoided
examining the merits of the case by waiting too long before taking a
decision. He invokes Article 6 para. 1 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 April 1987 and registered
on 2 May 1987.
On 13 October 1987 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
their observations on the admissibility and merits of the application.
The respondent Government's observations were submitted on 8
January 1989. An English translation was submitted on 21 January
1988.
The applicant was granted an extension of the time-limit for
submitting observations in reply from 4 March 1988 until 31 March
1988. The applicant's observations were submitted on 30 March 1988.
THE LAW
The applicant complains that he was not detained in
accordance with a procedure prescribed by law, since the President of
the Regional Court had not observed the time-limit prescribed by the
Mentally Ill Persons Act when deciding on the request that his
detention be prolonged. Furthermore, he complains that his mental
state did not represent such a danger as to make his detention
necessary or desirable, and that the detention was not necessary,
since he had agreed to stay voluntarily in the psychiatric hospital.
Moreover, he complains that the Supreme Court did not decide on the
lawfulness of his detention. The applicant submits that he has a
right to compensation. Finally, he complains of an unfair trial
before the Supreme Court. The applicant has invoked Articles 5 paras.
1, 4 and 5, and 6 para. 1 (Art. 5-1, 5-4, 5-5, 6-1) of the Convention.
The respondent Government have submitted that they accept that
the time-limit embodied in the Mentally Ill Persons Act has been
exceeded by one day. However, they have pointed to certain decisions
of the Supreme Court from which it may be concluded that exceeding the
time-limits does not make the subsequent detention illegal.
Furthermore, the Government have pointed out that it was the opinion
of the President of the Regional Court that the applicant's detention
was necessary and that it was correct for the President to assume that
the applicant was not willing to stay voluntarily in the psychiatric
hospital. Moreover, the Government have noted that Article 5 para. 4
(Art. 5-4) does not guarantee a right to appeal.
As regards Article 5 para. 5 (Art. 5-5) the Government have
contended that since Article 5 (Art. 5) of the Convention had not been
violated, no right to compensation exists. Further Article 5 para. 5
(Art. 5-5) presupposes that the applicant's interests are affected.
In the present case, the applicant's interests had not been affected,
since on 15 September 1986 the President of the Regional Court
authorised his placement in a psychiatric hospital, i.e. one day
before the period of detention under the emergency procedure would
have ended. Accordingly, the total length of detention at issue had
not exceeded the length of time permitted under the Mentally Ill
Persons Act. Finally, the respondent Government have submitted that
the applicant's detention had no effect on his capacity to administer
his property and that, therefore, Article 6 para. 1 (Art. 6-1) of the
Convention had not been violated. Moreover, it is the Government's
view that a procedure concerning detention falls to be reviewed under
Article 5 (Art. 5) of the Convention and not under Article 6 para. 1
(Art. 6-1) of the Convention.
In reply, the applicant has submitted that the Supreme Court's
case-law concerns different situations. He has pointed to another
decision (H.R. 23 januari 1987, NJ 1987 no. 409) in which the Supreme
Court decided that the President of a Regional Court had to observe
the time-limit prescribed by the Mentally Ill Persons Act. The
applicant accepts that his detention did not affect his capacity to
administer his property.
The Commission considers that the application raises important
questions of law and fact, which can only be determined by an
examination of the merits of the case. No grounds for inadmissibility
having been established, the application must be declared admissible.
For this reason, 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)