AS TO THE ADMISSIBILITY OF
Application No. 11509/85
by Hendrika Wilhelmina VAN DER LEER
against the Netherlands
The European Commission of Human Rights sitting in private on
16 July 1986, the following members being present:
Present: MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 May 1984 by
Hendrika Wilhelmina VAN DER LEER against The Netherlands and registered
on 24 April 1985 under file No. 11509/85;
Having regard to:
- the report provided for in Rule 40 of the Rules of Procedure
of the Commission;
- the Commission's decision of 9 October 1985 to bring the
application to the notice of the respondent Government and invite them
to submit written observations on its admissibility and merits;
- the observations submitted by the respondent Government on 12
December 1985 and the observations in reply submitted by the applicant
on 6 February 1986;
Having deliberated;
Decides as follows:
THE FACTS
The facts of this case, as they have been submitted by the
parties, may be summarised as follows:
The applicant is a Dutch citizen, born in 1922, and at present
residing at The Hague, the Netherlands. In the proceedings before the
Commission she is represented by Mrs. G. E. M. Later, a lawyer
practising at The Hague.
On 11 November 1983, the applicant was, on a voluntary basis,
admitted to a psychiatric hospital at The Hague. Her health insurance
association, provisionally, agreed that she be treated until 12
February 1984.
Some time after 18 November 1983 the applicant discovered that
she was no longer a voluntary patient, but that she was detained at the
psychiatric hospital by decision of the District Court judge
(Kantonrechter) of The Hague of 18 November 1983, taken at the request
of her husband. The request was supported by a medical declaration
drawn up by a psychiatrist, who examined the applicant on 16 November
1983 at the hospital. It appears from this declaration that the
psychiatrist did not consider it to be meaningless or undesirable on
medical grounds that the applicant be heard in court.
The applicant was not informed of the above request, nor heard
by the District Court judge. Moreover, it appears that she did not
receive a copy of the decision ordering her detention.
The applicant, therefore, contacted her lawyer on 29 November
1983, who, on 6 December 1983, requested the board of the psychiatric
hospital, in accordance with Section 29 para. 1 of the Mentally Ill
Persons Act (Krankzinnigenwet) to order the release of the applicant.
However, on 15 February 1984, this request was refused.
During hearings on 5 March 1984, 16 April 1984 and 7 May 1984
the request was considered by the Regional Court (Arrondissements-
rechtbank) of The Hague. It is in dispute between the parties whether
there was also a hearing on 26 March 1984. The applicant was officially
released on 7 May 1984.
In fact, however, the applicant had already been taken out of
the hospital by her husband on 26 January 1984. Nevertheless, the
hospital informed the applicant's lawyer on 19 April 1984 that the
applicant had left on probation on 31 January 1984. The applicant
appears not to have been informed of this.
COMPLAINTS
The applicant complains that she was not heard by a court,
although it appears from the medical declaration, on the basis of which
her detention was ordered, that this would not have been meaningless
or undesirable from a medical point of view.
She submits that she was therefore detained in violation of
Section 17 para. 3 of the Mentally Ill Persons Act.
The applicant, in addition, complains that certain data from
the medical declaration were inapplicable since she had already been
admitted to the psychiatric hospital. This was contrary to Section 17
para. 1 of the Mentally Ill Persons Act.
Moreover the applicant claims that the District Court judge
failed to obtain information from certain persons, as required by
Section 17 para. 4 of the Mentally Ill Persons Act.
Furthermore, the applicant complains that no registrar was
present during the District Court judge's examination of her case and
that no procès-verbal was drawn up.
The applicant, for the above reasons, contends that she was not
detained "in accordance with a procedure prescribed by law".
Consequently, her detention was contrary to Article 5 para. 1,
sub-para. e of the Convention.
The applicant also complains that she was not informed of the
reasons for her detention and that she did not have the possibility to
have the lawfulness of her detention decided speedily by a court. She
alleges violations of Article 5 paras. 2 and 4 of the Convention in
this respect.
Finally, the applicant complains that she did not have a fair
trial, contrary to the requirements of Article 6 para. 1 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 May 1984 and registered
on 24 April 1985.
On 9 October 1985, the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2, sub-para. b of its
Rules of Procedure, to submit written observations on admissibility and
merits before 20 December 1985.
The Government's observations were submitted on 12 December
1985, the applicant's observations in reply on 6 February 1986.
On 25 February 1986, the Government informed the Commission
that they would prefer to submit any further observations in writing.
On 16 May 1986, the Commission decided that the applicant be
granted legal aid.
SUBMISSIONS OF THE PARTIES
A. The Government
Violation of Article 5 para. 1, preamble and sub-para. e of the
Convention
The applicant claims that in the case of her compulsory
admission to a psychiatric hospital a violation of Article 5 para. 1
preamble and sub-para. e of the Convention occurred because a number
of provisions of the Mentally Ill Persons Act, as interpreted by the
Supreme Court (Hoge Raad), and various regulations issued by way of
implementing the Judiciary (Organisation) Act were infringed. The
violations of Dutch law claimed by the applicant, which in her view
constitute a violation of Article 5 para. 1 preamble and sub-para. e
of the Convention are the following:
1. violation of the provision relating to the duty of the judge
to hear the person concerned, laid down in Section 17, subsection 3 of
the Mentally Ill Persons Act;
2. violation of Section 17, subsection 1 of the Mentally Ill
Persons Act, because the medical certificate on which the court order
was based did not sufficiently demonstrate that the person in question
posed such a threat that treatment in a psychiatric hospital was
desirable or necessary. Reference is made here to the rulings of the
Supreme Court on assessment in the light of the criterion of danger;
3. violation of Section 17, subsection 4, because the judge did
not obtain the views of the husband of the applicant;
4. violation of Article 72, paras. 1 and 3 of Regulation I,
because it does not appear from the order that a hearing took place,
that anyone was heard, that a registrar was present or that an official
report was drawn up.
As to point 1, on 18 November 1983, the judge of the District
Court in The Hague authorised the provisional admission of the
applicant to a psychiatric hospital. Contrary to Section 17,
subsection 3 of the Mentally Ill Persons Act, the District Court judge
did not hear the applicant and gave no reason for this omission.
According to rulings of the Supreme Court no appeal in cassation may
be lodged against the decision of a District Court judge relating to
the above-mentioned authorisation on the grounds that the District
Court judge failed to fulfil his obligation to hear the patient in
question (Supreme Court, 27 November 1981, NJ (Dutch Law Reports) 1983,
57). However, in its ruling of 1 July 1983 (NJ 1984, 161, with note
E.A.A.), the Supreme Court pointed out that Section 29 of the Mentally
Ill Persons Act provides an opportunity to remedy the omission of the
judge with regard to the obligation to hear the patient, contained in
Section 127, subsection 3 of the Mentally Ill Persons Act. Section 29,
subsection 1 entitles the patient to apply to the governors of the
psychiatric hospital for discharge. The governors must immediately
obtain a recommendation from the medical practitioner attached to the
hospital. In the case of a recommendation to refuse the application
the governors forward the application together with the recommendation
to the Public Prosecutor within whose district the hospital is located.
The Public Prosecutor then applies to the court for a ruling. These
provisions are laid down in Section 29, subsection 2 of the Mentally
Ill Persons Act. Subsection 3 of this Section authorises the Public
Prosecutor to deny the patient access to the courts, but according to
the above-mentioned Supreme Court ruling this provision should not be
applied in cases in which the patient has applied to be discharged on
the grounds that he or she was not heard by the judge who issued the
authorisation (Considerations of Law 3.4 and 3.5). By letter of
18 November 1985 addressed to the Chief Public Prosecutors and dealing
with the application of the Mentally Ill Persons Act, the Minister of
Justice drew attention to these provisions governing applications for
discharge which provide an opportunity to remedy an omission by the
judge with regard to the obligation to hear the patient (Government
Gazette 1985, No. 235).
The applicant made use of this provision of the Mentally Ill
Persons Act, with the result that the Regional Court of The Hague gave
her the opportunity of being heard on successive occasions on 5 March,
26 March, 16 April and 7 May 1984. On these occasions the applicant
arranged for her counsel to represent her. In view of the foregoing
the Government believe that the failure of the District Court judge to
fulfil his duty to hear the patient was redressed during the court's
handling of the application for discharge from the psychiatric
hospital.
With regard to point 2, the applicant states that Section 17,
subsection 1 of the Mentally Ill Persons Act was violated because the
criterion of danger applied by the Supreme Court for compulsory
admissions was not met. The essence of this criterion is that the
individual's mental illness poses such a grave threat to the individual
himself/herself, to others and to the general safety of persons or
property that compulsory admission to hospital is desirable or
necessary.
The assessment of whether a danger does exist is tied up with
the evaluation of factual data. To establish the validity of the
decision reached would require a thorough investigation of the facts.
However, on the basis of the documentation, the Government considers
it highly probable that at the time the District Court judge gave the
authorisation, a danger, in the sense used above, did indeed exist. The
Government bases its view on a consideration stated in the order made
by the Regional Court of The Hague on 26 March 1984 which reads as
follows:
"Considering that the applicant, as she herself states and
as is officially known by the court, has a tendency towards
the end of the year to display symptoms of mental illness
which mean that she requires institutional care; that the
applicant was accordingly admitted to hospital from
24 December 1980 to 16 February 1981, from 13 December 1981
to the end of the period of care ordered on that occasion,
from 10 November 1982 to the end of the period of care
ordered and from 28 September 1983 to the end of the period
of care ordered, after which her voluntary stay in the
institution was converted into a new compulsory stay on
18 November 1983 by the contested authorisation of the
District Court judge."
The Government would make the following observations with
regard to point 3:
Section 17, subsection 4 of the Mentally Ill Persons Act does not
compel the judge to obtain the views of the persons mentioned therein.
This provision was introduced in the Act of 28 August 1970 amending the
Mentally Ill Persons Act. The original bill contained a provision
requiring the judge, insofar as is relevant here, to offer the spouse
the opportunity of stating his/her views, provided he or she was not
the party which had applied for the authorisation. It appears from the
Explanatory Memorandum that the provision was intended to prevent close
relatives being taken by surprise by an authorisation (Proceedings II
1962-1963, 71946 No. 2, Article I b) and No. 3, p. 1).
The provision was given its present form in the Memorandum of
Amendment submitted together with the Memorandum of Reply (Proceedings
II, 1967-1968, 71946 No. 6). In the Memorandum of Reply the Government
noted that the provisional report had urged that the judge should be
compelled to interview the relative(s) who had applied for the
authorisation. The Government then observed that this obligation was
not incorporated in the final version because of the feeling that
having to appear before a judge might place a severe psychological
strain on the person or persons who had applied for the authorisation
(Proceedings II, 1967-1968, 71946, No. 5, p. 5). In this context
reference may also be made to the Supreme Court's judgment of 6 April
1984, (NJ 1985, No. 400, with a note by F.H.J.M.).
It appears from the history of the Act as outlined above that
the legislature deliberately rejected the idea of compelling the judge
to obtain the views of the spouse who applied for the authorisation.
The Government would make the following observations with
regard to point 4:
Insofar as it is relevant here, Article 72, paras. 1 and 3 of
Regulation I lays down that a registrar should be present at hearings.
The violation of this regulation is closely related to the failure of
the District Court judge to hear the patient and, like this omission,
was redressed in the course of the discharge procedure.
In view of the foregoing observations regarding points 1, 2,
3, and 4, the Government believe that Article 5 para. 1, preamble and
sub-para. e of the Convention has not been violated. They consider
this part of the application admissible but ill-founded.
Violation of Article 5, para. 2 of the Convention
The applicant claims that Article 5, para. 2 of the Convention
was violated because she was not informed of the authorisation for her
provisional placement in a psychiatric hospital.
The Government offer no opinion as to whether or not Article
5 para. 2 of the Convention applies to persons admitted to a
psychiatric hospital as a result of a court authorisation. However,
they do believe that the applicant should have been informed of the
fact that an authorisation had been issued under the terms of the
Mentally Ill Persons Act, so that she would be in a position to take
proceedings by which the lawfulness of her detention could be decided
by a court. The Government are therefore of the opinion that the
failure to inform the applicant of the District Court judge's decision
did constitute a violation of Article 5, para. 4 of the Convention. In
the circumstances of this particular case, however, the applicant
suffered no disadvantage as a result.
Violation of Article 5, para. 4 of the Convention
The applicant states that insofar as the procedure of Section
29 of the Mentally Ill Persons Act may be deemed to constitute a
procedure within the meaning of Article 5 para. 4 of the Convention,
the question of her discharge was not "decided speedily". Her
application of 6 December 1983 was first heard by the Court on 5 March
1984 and the final decision was reached only on 17 May 1984.
The Government assumes that the discharge procedure laid down
in Section 29 of the Mentally Ill Persons Act may be regarded as a
procedure within the meaning of Article 5 para. 4 of the Convention,
but believes that when judging the length of time that elapses between
the submission of the application for discharge and the hearing of this
application in court which resulted in the discharge order,it should
be borne in mind that from 26 January 1984 the applicant was no longer
in hospital and that she began a trial discharge period on 31 January
1984. From 31 January 1984 onwards she was therefore no longer
deprived of her liberty. The requirement that a decision be taken
speedily, contained in Article 5 para. 4, thus only applied to
the period from 6 December 1983 to 31 January 1984. The question to
be answered is whether Article 5 para. 4 was violated by the court's
not having taken a decision on the application before 31 January 1984.
The Government's answer is that it was not and it therefore holds that
this part of the application is ill-founded. As stated above, the
Government do believe that Article 5 para. 4 was violated in that the
applicant was not informed of the court's decision.
Violation of Article 6 para. 1 of the Convention
The applicant claims that Article 6 para. 1 of the Convention
whereby everyone is entitled to a fair hearing was violated because the
District Court judge did not hear her, did not obtain the views of her
husband and did not comply with Article 72, paras. 1 and 3 of
Regulation I. The applicant also claims a violation of Article 6 para.
1 because she was not informed of the decision taken by the District
Court judge with regard to her compulsory admission to hospital.
The Government take the view that the safeguards relating to
the process of depriving persons of their liberty are laid down in
Article 5 of the Convention so that it is in the light of this
provision and not Article 6 para. 1 that this process should be
assessed. This may be seen, for example, from the fact that Article
6 para. 1 provides for judgments to be pronounced publicly, whereas in
the case of a person deprived of his/her liberty under the Mentally Ill
Persons Act a public pronouncement would be incompatible with personal
privacy.
In view of the fact that Article 5 of the Convention contains
specific safeguards for cases in which a person is deprived of his
liberty, the Government consider that the part of the application which
relates to the violation of Article 6 para. 1 is not admissible.
B. The Applicant
Article 5 para. 1 sub-para. (e)
The obligation to hear on the basis of Section 17 of the Mentally Ill
Persons Act.
The Government refers to the decision of the Supreme Court of
1 July 1983 (NJ 1984, No. 161). However, this decision concerned a
case in which the President of the Regional Court of Utrecht had
considered the question whether or not to hear the person concerned in
conformity with Section 17 of the Mentally Ill Persons Act, but decided
that in his opinion, the submitted medical declaration showed that the
condition of the person concerned rendered such a hearing meaningless.
In Section 17 of the Mentally Ill Persons Act, the possibility is given
not to hear someone in case it appears from a declaration by a
psychiatrist that the condition of the patient renders this meaningless
or inappropriate on medical grounds. In the present case the District
Court judge did not consider the question whether there was a reason
to hear the applicant under Section 17 of the Mentally Ill Persons Act.
Therefore, the District Court judge acted in contravention of Section
17 para. 3 of the Mentally Ill Persons Act. This also implies that
there was a violation of Article 5 para. 1 sub-para. e of the
Convention.
The decision of the Supreme Court quoted by the Government does
not make it clear whether or not there would be a violation of Article
5 para. 1 sub-para. e of the Convention. This, because the Supreme
Court did quash the decision of the President because he had
insufficiently motivated why he had not heard the person concerned.
Furthermore, the question arises whether proceedings concerning
a request for release can remedy an omission such as the failure to
hear the person concerned. Because, if the applicant had been heard
by the District Court judge, the latter could have rejected the request
for her detention and the applicant would not have been deprived of her
liberty. This in fact happened in the course of a new procedure
concerning her detention in the beginning of 1985. The President of the
Regional Court of The Hague then, on 7 January 1985, decided not to
prolong the applicant's detention. After that, the applicant has never
been involuntarily deprived of her liberty under the Mentally Ill
Persons Act, contrary to previous practice when she was not heard.
Because the applicant was not heard, no judge could consider
the question whether she had been lawfully deprived of her liberty
since the date of the decision of the District Court judge, 18 November
1983. This irrespective of the fact that subsequently on 5 March, 6
April and 7 May 1984, her request for release was considered. At that
time, she had already been unlawfully deprived of her liberty for
several months because of the decision of the District Court judge. In
addition, the applicant contests the Government's statement that her
case was also dealt with on 26 March 1984.
Danger criterion
From the medical declaration which was partly the basis for the
decision of the District Court judge it does not appear that on the
basis of the criteria developed by the Supreme Court, there was such
a danger flowing from the mental illness of the applicant, for either
herself, others or for public safety, which would justify compulsory
treatment. Since the applicant was not heard, she could not submit any
observations on this. When she was heard a year later, by the
President of the Regional Court, namely on 7 January 1985, in
connection with new compulsory treatment, this hearing resulted in the
President rejecting the request for prolongation of the detention,
because of the absence of such a danger. The factual situation in both
cases was probably very similar.
Since there has been no subsequent compulsory detention, and
the applicant was never heard when previous decisions on such detention
were taken, the question arises whether the applicant was ever lawfully
detained.
Article 5 para. 2
The applicant was only informed of the decision taken in her
case after ten days. This put her at a disadvantage since it prevented
her from introducing an earlier request for release.
Article 5 para. 4
Leave on probation
The applicant secretly left the asylum on 26 January 1984, with
the help of her husband. She was only informed in the course of March
1984 that she had in fact obtained leave on probation on 31 January
1984. A message to that effect was with her clothes which her husband
was permitted to pick up for her at the asylum. During that period the
applicant could expect to be brought back to the asylum by the police,
as happens in other cases.
Furthermore, leave on probation does not mean that the
compulsory detention has ended, because leave on probation can be
terminated at any given moment and, without the interference of a
judicial authority, the person concerned can be detained again. In
1980, the applicant was on leave on probation but the judicial decision
on the basis of which she was detained was prolonged for one year, of
which she was not informed. Nor was she heard by a judicial authority.
On the basis of that decision the applicant was at the time suddenly
taken to a psychiatric asylum by the municipal health services without
her knowing why and without a judicial authority examining her case.
This also meant that her leave on probation had ended.
Also, in 1984, leave on probation did not guarantee that there
would be no request for a prolongation of her compulsory detention. On
14 May 1984, the public prosecutor requested prolongation of the
compulsory detention of the applicant in the psychiatric asylum, but
this request was declared inadmissible by the Regional Court on 7 June
1984, because the applicant had been released by court order on 7 May
1984.
Speedily
The applicant considers that in order to answer the question
whether the decision to release her was given speedily, the date of the
leave on probation is irrelevant. This because she was not aware of
this leave on probation until the middle of March 1984 and furthermore
because the provisional leave did not guarantee that she would not
again be detained involuntarily and without the examination by a
judicial authority during the period that the original judicial
decision was still valid.
It took until 5 March 1984 before the request of 6 December
1983 was dealt with. The Board of the asylum concerned had already
rejected a request on 15 December 1983. Subsequently, two sessions
were necessary because the asylum did not provide the necessary data,
the competent medical doctor did not appear at the hearing, and the
public prosecutor was unable to provide the court with any information
whatsoever. During this period there was no examination of the
lawfulness of the earlier decision of the District Court judge and the
applicant could be brought back to the asylum. That this did not happen
in fact, did not diminish her anxiety in this respect. Only after 7
May 1984, when the Regional Court granted her request, just before the
original period of detention ordered by the District Court judge was
over, a decision was taken. This can no longer be considered speedily.
THE LAW
1. The applicant has complained that she was not detained in
accordance with a procedure prescribed by law and she has invoked
Article 5 para. 1 sub-para. e (Art. 5-1-e) of the Convention, which
reads:-
"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:
...
(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 accepted that this complaint is admissible.
The Commission finds that the complaint raises important issues
of law and fact under the Convention which should be determined in an
examination of the merits of the case. No grounds for inadmissibility
having been established, this part of the application must be declared
admissible.
2. The applicant has further complained that she was not informed
of the reasons for her detention and she alleges a violation of Article
5 para. 2 (Art. 5-2) of the Convention in this respect, which provides
"....
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. "
The Government have left open the question whether Article 5
para. 2 (Art. 5-2) of the Convention applies in the applicant's case.
The Commission finds that this part of the application also
raises complex issues of law and fact and cannot be declared manifestly
ill-founded. No other ground for inadmissibility having been
established, this complaint must thus be declared admissible.
3. In addition, the applicant has complained that she did not have
the possibility to have the lawfulness of her detention decided
speedily by a court. She has invoked Article 5 para. 4 (Art. 5-4) of
the Convention in this respect which reads:
" ...
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 they consider this provision
to have been violated by the fact that the applicant was not informed
of the District Court judge's authorisation of her detention.
The Commission is of the opinion that this part of the
application again raises difficult issues of law and fact which can
only be resolved by a full examination of the merits. No grounds for
inadmissibility having been established, this complaint must also be
declared admissible.
4. Finally, the applicant has complained that she did not have a
fair trial and she has invoked Article 6 para. 1 (Art. 6-1) of the
Convention which reads, inter alia:
"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 submitted that the safeguards relating to
deprivation of liberty are laid down in Article 5 (Art. 5) of the
Convention and that Article 6 (Art. 6) of the Convention is therefore
not applicable to the present case.
The Commission, however, considers that this complaint also
raises difficult issues of law and fact which can only be resolved by
a full examination of the merits. No grounds for inadmissibility
having been established, this complaint must also be declared
admissible.
For these reasons, the Commission
DECLARES THE APPLICATION ADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)