Application No. 11509/85
Hendrika Wilhelmina VAN DER LEER
against
the NETHERLANDS
REPORT OF THE COMMISSION
(adopted on 14 July 1988)
TABLE OF CONTENTS
I. INTRODUCTION
(paras. 1 - 23) ...................................... 1
A. The application
(paras. 2 - 9) ............................... 1
B. The proceedings
(paras. 10 - 18) ............................. 2
C. The present Report
(paras. 19 - 23) ............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 24 - 44) .................................... 4
A. Particulars of the case
(paras. 24 - 34) ............................. 4
B. Relevant domestic law and practice
(paras. 35 - 44) ............................. 5
III. SUBMISSIONS OF THE PARTIES
(paras. 45 - 91) ..................................... 9
A. The applicant
(paras. 46 - 70) ............................. 9
a. Article 5 para. 1 (e) of the Convention
(paras. 46 - 64) .......................... 9
b. Article 5 para. 2 of the Convention
(paras. 65 - 66) .......................... 12
c. Article 5 para. 4 of the Convention
(paras. 67 - 69) .......................... 12
d. Article 6 para. 1 of the Convention
(para. 70) ................................ 13
B. The Government
paras. (71 - 91) ............................. 13
a. Article 5 para. 1 (e) of the Convention
(paras. 71 - 85) .......................... 13
b. Article 5 para. 2 of the Convention
(paras. 86 - 87) .......................... 16
c. Article 5 para. 4 of the Convention
(paras. 88 - 89) .......................... 16
d. Article 6 para. 1 of the Convention
(paras. 90 - 91) .......................... 16
IV. OPINION OF THE COMMISSION
(paras. 92 - 124) .................................... 17
A. Points at issue
(para. 92) ................................ 17
B. As regards Article 5 para. 1 of
the Convention
(paras. 93 - 101) ......................... 17
C. As regards Article 5 para. 2 of
the Convention
(paras. 102 - 108) ........................ 19
D. As regards Article 5 para. 4 of
the Convention
(paras. 109 - 118) ........................ 20
E. As regards Article 6 para. 1 of
the Convention
(paras. 119 - 123) ........................ 22
F. Recapitulation
(para. 124) ............................... 23
Separate opinion by Mr. Trechsel ............................. 24
APPENDIX I : HISTORY OF THE PROCEEDINGS ................ 25
APPENDIX II : DECISION ON THE ADMISSIBILITY ............. 26
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant, Hendrika Wilhelmina VAN DER LEER, is a Dutch
citizen born in 1922. She presently resides in The Hague, the
Netherlands, and she is unemployed.
3. In the proceedings before the Commission she is represented by
Mrs. Gerda E.M. Later, a lawyer practising in The Hague.
4. The application is directed against the Netherlands. The
Netherlands Government are represented by Mrs. Dorothea S. van Heukelom,
of the Netherlands Ministry of Foreign Affairs, as Agent.
5. The applicant entered a psychiatric hospital on a voluntary
basis on 11 November 1983. On 18 November 1983 the District Court
judge (Kantonrechter) of The Hague ordered her detention in the
hospital for six months. The applicant was neither heard before this
decision was taken, nor informed of it.
6. After she had discovered that she was being detained, she had
her lawyer request the board of the psychiatric hospital to discharge
her. This request was made on 6 December 1983 and refused on
15 December 1983. Thereupon, the discharge request was referred to
the Regional Court (Arrondissementsrechtbank) of The Hague, which on
7 May 1984 revoked the detention order.
7. Meanwhile, the applicant had left the hospital without
authorisation on 26 January 1984. The hospital granted her
probationary leave on 31 January 1984.
8. The applicant complains that, because she was not heard
without any reasons being given by the judge in support of such a
procedure, the detention order was not taken "in accordance with a
procedure prescribed by law" and was not "lawful". The Dutch law was
also disregarded in other respects. Therefore her detention was in
violation of Article 5 para. 1 (e) of the Convention. Also, because
she was not informed of the detention order, nor had the possibility
to have the lawfulness of her detention decided speedily by a court,
she alleged violations of Article 5 paras. 2 and 4 of the Convention.
9. Finally, the applicant complains that, for the reasons
mentioned above, she was denied a fair hearing in contravention of
Article 6 para. 1 of the Convention.
B. The proceedings
10. The application was introduced on 18 May 1984 and registered
on 24 April 1985.
11. On 9 October 1985, the Commission decided to invite the
respondent Government, pursuant to Rule 42 para. 2 (b) of its Rules of
Procedure, to submit written observations on admissibility and merits
before 20 December 1985.
12. The Government submitted their observations on 12 December
1985 and the applicant submitted observations in reply on 6 February 1986.
13. On 16 May 1986, the Commission decided that the applicant be
granted legal aid.
14. On 16 July 1986 the Commission declared the application
admissible.
15. The respondent Government submitted further observations on
the merits on 28 November 1986 and on 2 September 1987. The applicant
submitted observations on the merits on 26 March 1987.
16. On 15 October 1987 the Commission decided to hold an oral
hearing on the merits of the application.
17. The hearing took place on 20 January 1988. The parties were
represented as follows:
- the Applicant
by her counsel, Mrs. G.E.M. LATER, and
by Mr. W.J.J. LOS, legal assistant
- the Government
by their Agent, Mrs. D.S. VAN HEUKELOM
of the Ministry for Foreign Affairs, who was assisted
by Mrs. R.E. VAN GALEN-HERRMANN and
Mr. J. DE BOER, both of the Ministry of Justice,
as Advisers
18. After declaring the case admissible the Commission, acting in
accordance with Article 28 (b) of the Convention, placed itself at the
disposal of the parties with a view to securing a friendly settlement
of the case. In the light of the parties' reaction, the Commission
now finds that there is no basis upon which such a settlement can be
effected.
C. The present Report
19. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
G. SPERDUTI
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
20. The text of this Report was adopted on 14 July 1988 and is now
transmitted to the Committee of Ministers of the Council of Europe, in
accordance with Article 31 para. 2 of the Convention.
21. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
i. to establish the facts, and
ii. to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under the
Convention.
22. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I, and the Commission's
decision on the admissibility of the application as APPENDIX II.
23. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. Particulars of the case
24. On 11 November 1983, the applicant was admitted to a
psychiatric hospital in The Hague, on a voluntary basis.
25. On 18 November 1983, the District Court judge (Kantonrechter)
of The Hague ordered her compulsory detention in the psychiatric
hospital for a period of six months, in accordance with Section 17 of
the Mentally Ill Persons Act (Krankzinnigenwet). A request hereto had
been brought by the applicant's husband.
26. The request was supported by a medical statement given by a
psychiatrist. He had examined the applicant in the hospital on
16 November 1983. In this statement, the psychiatrist answered in the
negative the question whether it would serve no purpose or be medically
contra-indicated that the applicant be heard by a judge. He considered
it necessary for her to be detained to protect herself and/or others.
27. In deciding on the detention order, the District Court judge
did not conduct any hearings. Consequently, no procès-verbal was
drawn up. The written court order states that the medical statement
sufficiently indicates the necessity of detaining the applicant in a
mental hospital. The pre-printed reference, on the standard-form
order, to the applicant not being heard because it would serve no
purpose or be medically contra-indicated, was deleted, without other
reasons being given for not hearing the applicant.
28. The applicant was not informed of the detention order, nor did
she receive a copy of the written decision.
29. On 28 November 1983, she became aware of her compulsory
detention because she was placed in isolation, which is not done with
voluntary patients. On the same day, the applicant contacted her
lawyer. On 6 December 1983, the lawyer requested the board of the
hospital to discharge her. This request was made in accordance with
Section 29 para. 1 of the Act.
30. The request was refused by the board of the hospital on
15 December 1983, on the basis of the professional opinion of the
medical director of the hospital. In accordance with Section 29 para.
2 of the Act the request was then sent to the Public Prosecutor to be
brought before the Regional Court (Arrondissementsrechtbank) of The
Hague.
31. The Regional Court held hearings on 5 March 1984, 16 April 1984
and 7 May 1984. The request was considered on these dates as well as
on 26 March 1984.
32. On 7 May 1984, the Court ordered the applicant's discharge.
33. On 26 January 1984, the applicant had already left the
hospital with the help of her husband. She was not authorised to
leave.
34. According to the hospital she was discharged on probation as
from 31 January 1984. The applicant was not directly informed of
this.
B. Relevant domestic law and practice
35. The detention of persons of unsound mind in the Netherlands is
governed by the "Act of 27 April 1984, regulating the State
supervision of Mentally Ill Persons" (Wet van den 27sten April 1884
tot regeling van het Staatstoezicht op krankzinnigen), commonly known
as the Mentally Ill Persons Act (Krankzinnigenwet, hereafter referred
to as the Act).
36. The relevant provisions in respect of the present application,
i.e. those dealing with requests to have someone detained in a
mental hospital and the procedures leading to detention and release,
are Sections 12, 16, 17 and 29.
37. Section 12 of the Act permits, inter alia, the spouse of a
mentally ill person to apply in writing to the local District Court
judge (Kantonrechter) for an authorisation to have that person
temporarily placed in a mental hospital, where this is necessary in
the interests of public order or of the mentally ill person himself.
38. Section 16 of the Act requires that such an application be
accompanied by a reasoned medical statement by a qualified doctor who
has specialised in mental and nervous disorders. This statement must
make it clear that the patient is mentally ill and that treatment in a
mental hospital is necessary or desirable. The statement should also
indicate whether or not, in view of the patient's condition, it would
serve no purpose or be medically contra-indicated to have the deciding
judge hear the patient.
39. Section 17 of the Act sets out the procedure before the
District Court judge. The relevant paragraphs provide as follows:
"1. Wanneer de verklaring van den geneeskundige,
hetzij alleen, hetzij in verband met de vermelde
omstandigheden en overgelegde bescheiden, het bestaan van
krankzinnigheid en de noodzakelijkheid of wenschelijkheid van
de verpleging in een krankzinnigengesticht aanvankelijk
genoegzaam aantoont, <.....>, zoo verleent de kantonrechter,
<.....>, de verzochte machtiging. De beschikking, waarbij
machtiging wordt verleend, is niet onderworpen aan hoger
beroep.
<.....>
3. Alvorens op het verzoek <.....> te beschikken hoort
de rechter de persoon wiens plaatsing is verzocht <.....>,
tenzij naar zijn oordeel uit de bij het verzoek of
requisitoir overgelegde verklaring van een zenuwarts <.....>
blijkt, dat de toestand van de patiënt dit zinloos of uit
medische overwegingen onverantwoord doet zijn. Hij kan aan
de patiënt hetzij op diens verzoek hetzij ambtshalve een
advocaat of procureur toevoegen. De artikelen 48 en 49
Wetboek van Strafvordering zijn van overeenkomstige
toepassing.
4. De rechter doet zich, voor zoveel mogelijk,
voorlichten door:
a. degene, die ingevolge de artikelen 12 en 13 de
machtiging heeft gevraagd of gevorderd;
b. de niet van tafel en bed gescheiden echtgenoot;
<.....>
8. De machtiging van den kantonrechter, <.....> wordt
<.....> niet beteekend aan den persoon wiens plaatsing is
verzocht <.....>."
"1. Where the statement by the doctor, either by itself or
in connection with the stated circumstances and submitted
documents, sufficiently demonstrates, prima facie, the
existence of mental illness and the necessity or
desirability of treatment in a mental hospital, <....> the
District Court judge <....> will grant the requested
authorisation (*). The court order granting the
authorisation is not subject to appeal.
3. Before deciding on the request, the judge will hear the
person for whom placement has been
requested, unless in his opinion it appears from the
accompanying statement by a psychiatrist that, in view of
the patient's condition, would serve no purpose
or, for medical reasons, be contra-indicated. At the patient's
request, or ex officio, he may appoint a lawyer to act on the
patient's behalf. Sections 48 and 49 of the Code of Penal
Procedure apply correspondingly.
4. Insofar as possible, the judge will seek information
from :
a. the person who requested the authorisation pursuant
to Sections 12 and 13;
b. the spouse who is not legally separated;
<.....>
8. The authorisation order of the District Court judge
<....> is not served on the person for whom placement has
been requested. <....>"
40. The Dutch Supreme Court (Hoge Raad) has elaborated the meaning
of the phrase that treatment in a mental hospital must be "necessary
or desirable", by stipulating that the patient must present a danger
to himself, to others, or to the general public order, to such
an extent that he cannot safely remain in his usual surroundings.
41. The procedure whereby a patient detained in a mental hospital
can apply for discharge is governed by Section 29 of the Act. The
patient may petition the board of the hospital for his release at any
time. The board asks the advice of their senior psychiatrist. If
_____
(*) I.e. the Court's authorisation for the compulsory detention
and treatment in a mental hospital.
his recommendation is against discharge, they send the discharge
request and the psychiatrist's report to the Public Prosecutor
(Officier van Justitie) with the Regional Court
(Arrondissementsrechtbank) in the jurisdiction of which the hospital
is situated.
42. The Regional Court decides on the discharge request. The Court
may decide to conduct a further investigation. If they do, the
provisions of paragraphs 2, 3, 5 and 6 of Section 23 of the Act apply.
These read as follows:
"2. De rechtbank kan echter nader bewijs door getuigen of
andere middelen gelasten en zelfs het verhoor van den
verpleegde bevelen.
3. Wordt het verhoor van den verpleegde bevolen, dan
geschiedt dit in het gesticht, al of niet in
tegenwoordigheid van een der daaraan verbonden
geneeskundigen.
5. De rechtbank kan het verhoor opdragen aan een daartoe
door haar te benoemen rechter-commissaris of aan den
kantonrechter in wiens ressort het gesticht is gelegen.
6. Bij gelegenheid van het verhoor van den verpleegde
kunnen tevens de geneeskundigen en andere personen, die zich
in het gesticht bevinden, als getuigen worden gehoord zonder
voorafgaande oproeping of schadeloosstelling."
"2. The Regional Court may, however, have further evidence
presented by witnesses or otherwise, or even order a hearing
of the patient.
3. If a hearing of the patient is ordered, it shall take
place at the hospital, with or without one of the hospital's
doctors being present.
5. The Regional Court may order that the hearing be
carried out by an appointed investigating judge or by the
District Court judge in whose jurisdiction the hospital
is situated.
6. Upon the occasion of the hearing of the patient, the
doctors and others who are in the hospital may be heard as
witnesses without being summoned beforehand or indemnified."
43. Following the judgment of the European Court of Human Rights
in the case of Winterwerp (Winterwerp judgment of 24 October 1979,
Series A No. 33), the Supreme Court (Hoge Raad) and the Minister of
Justice have drawn the attention of the Dutch Public Prosecutors and
Courts to the importance of hearing the patient in connection with
a discharge application presented under Section 29, in cases where he
has not been previously heard by the District Court judge.
44. Sections 32 - 35 of the Act govern the civil capacity
of someone who is placed in a mental hospital. Under Section 32
a mentally ill person, by operation of law, loses the capacity to
administer his property upon being placed in a mental hospital.
However, following the judgment in the Winterwerp case (see
reference above, para. 43) these provisions are no longer applied.
In the present situation, placement in a mental hospital has thus no
legal consequences for a patient's capacity to administer his property.
III. SUBMISSIONS OF THE PARTIES
45. The parties' submissions on the merits of the application are
summarised below. The submissions made at the admissibility stage are
summarised in the decision on admissibility (Annex II).
A. The applicant
a. Article 5 para. 1 (e) of the Convention&S
aa. The obligation to hear the patient on the basis of
Section 17 of the Mentally Ill Persons Act
46. Section 17 para. 3 of the Act requires that a patient who is
to be detained in a mental hospital must be heard before a decision is
taken, unless, in the opinion of the judge, it is clear from the
psychiatrist's report that hearing the patient would serve no purpose
or be medically contra-indicated.
47. The meaning of this provision in Dutch law can be determined
with reference to the decisions of the Supreme Court (Hoge Raad) on
the subject. Since the judgment of the European Court of Human Rights
in the Winterwerp case (judgment of 24 October 1979, Series A no. 33),
the previously not uncommon practice of not hearing mentally ill
persons before deciding on their detention in a mental hospital, has
on several occasions been reviewed by the Supreme Court.
48. In the first of two cases decided on 27 November 1981 (Rek.
5922, NJ 1983, no. 57), the Supreme Court firstly noted that it did
not appear from the judicial order of the president of a Regional
Court on detention in a mental hospital, that the patient had been
heard. Consequently, it did not appear that the judge had decided
while taking into account Section 17 para. 3 of the Act. Nor did it
appear that the judge was of the opinion that it was apparent from the
psychiatrist's statement that hearing the patient would serve no
purpose or be medically contra-indicated as provided for under this
provision. In these circumstances, the Supreme Court concluded that
either the president of the Regional Court had violated the law by
granting the detention authorisation without hearing the patient, or
the president's order was rendered null and void because it
disregarded the formal requirement to hear the patient.
49. In the second case (Rek. 5922, NJ 1983, no. 57), the appeal in
cassation to the Supreme Court was inadmissible for formal reasons.
However, the Supreme Court did state that the importance to be
attached to the requirement to hear the patient, as outlined in the
previous case before the Supreme Court, was equally relevant to a
procedure for a detention authorisation before a District Court
judge.
50. In a case decided on 24 December 1981 (No. 5966, unpublished)
the Supreme Court ruled that it did not suffice to state that the
patient did not appear in Court despite having been properly summoned.
Here too, the judicial order must state that, in the opinion of the
judge, one of the exceptions of Section 17 para. 3 applies. The
Supreme Court overruled this judicial order in view of the importance
which must be attached to the requirement to hear the patient, as also
appears from the parliamentary history of this provision of the Act.
51. Where the patient himself does not wish to be heard, the
Supreme Court has ruled in a case of prolongation of detention
(HR 25.11.83, NJ 1984, no. 163) that, in view of the serious nature of
detention in a mental hospital, the judge's decision must make it clear
how the patient was notified of his right to be heard and, if he
does not wish to be heard, how the judge came to know that the patient
did not wish to be heard.
52. The Supreme Court has allowed a judge, in a prolongation case,
not to hear a patient where the decision had to be taken urgently and
the patient was fugitive and could not therefore be summoned to be
heard. That does not apply to the applicant's case as the decision
was not urgent and she was easily available for a hearing at the
mental hospital.
53. In the cases outlined above, decisions to place in or prolong
detention in a mental hospital were quashed by the Supreme Court. In
each case there was a defect relating to the hearing of the patient.
The deciding judge had either failed to hear the patient, failed to
give reasons for not hearing the patient, or given the wrong reasons
for not hearing the patient. These decisions by the Supreme Court
clearly indicate that judges who fail to deal with the hearing of a
patient correctly, act unlawfully.
54. As in these cases the judicial order in the present case for
detention in a mental hospital was given in violation of the
requirements of the Act. This judicial order was therefore in
violation of Article 5 para. 1 (e) of the Convention, because it cannot
be considered to have been made "lawfully" or "in accordance with
a procedure prescribed by law".
55. In the Supreme Court case on which the Netherlands Government
rely (HR 1.7.83, NJ 1984, no. 161) the patient was not heard, but the
reasons for not doing so were lawful. In that case the patient's
subsequent right to be heard in the release proceedings cures the
initial failure to hear the patient, but the detention order in itself
was lawful.
56. In the applicant's case, the detention order was not lawful
and therefore the subsequent hearing of the patient in the release
proceedings could not cure defects in the initial order. This could
only be the case if release proceedings were an integral part of the
detention procedure and were not subject to the patient's volition
before being instituted. As the release proceedings are not an
integral part of the detention procedure, they cannot be taken into
account when reviewing the lawfulness of the procedure under national
law in respect of Article 5 para. 1 (e) of the Convention.
57. It is true that Article 5 para. 1 (e) of the Convention does
not require a decision by a judge. But, where the national procedure
provides for it, and stipulates specific guarantees for it, the
decision must be in accordance with the national procedure for the
detention to be lawful.
58. The applicant maintains that, because she was not heard,
without any reasons being given by the District Court judge for his
decision, she was arbitrarily detained in a mental hospital in
violation of Article 5 para. 1 (e) of the Convention.
bb. Other legal requirements
Danger criterion
59. The detention order of the District Court judge in the
applicant's case only makes use of a standard formula to indicate the
necessity of detaining the applicant. It is not apparent whether or
not the judge applied the criterion as elaborated by the Supreme Court
in its decision of 16 April 1982 (NJ 1983, no. 33) for determining the
necessity of detention. This criterion states that there must exist a
danger, as a consequence of the mental illness, to the person himself,
to others or to the general safety of persons and property, such that
detention of that person in a mental hospital is necessary or
desirable.
60. In several instances the Supreme Court has quashed decisions
where the aforementioned criterion was not applied (see for example HR
14.2.86, NJ 1986, no. 400 and HR 15.7.86, NJ 1986, no. 765). In the
applicant's case the psychiatrist's statement cannot support the
conclusion that the applicant was dangerous. Therefore, the standard
formula used by the District Court judge does not sufficiently
indicate how the judge used the criterion to determine the existence
of the requisite element of danger. As it does not appear from the
District Court judge's order that he applied the Supreme Court's
criterion, if this order had been liable to review by the Supreme
Court it would have had to be quashed, given the Supreme Court's
existing jurisprudence. Later decisions concerning the applicant's
detention support the conclusion that she was not sufficiently
dangerous.
61. Furthermore, it is questionable whether the psychiatrist's
statement was a sufficiently objective expert report to justify the
conclusion that she was of "unsound mind" within the meaning of
Article 5 para. 1 (e) of the Convention. This statement was in large
part based on information given by the consulting psychiatrist, and as
the applicant was already voluntarily in the hospital at the time, the
conclusions in the statement concerning threats to her husband or the
neighbours could not possibly apply any longer.
62. The non-application of the danger criterion and the
insupportive psychiatrist's statement lead to the conclusion that the
applicant's detention did not comply with the conditions in Section 17
para. 1 of the Act. Consequently it was unlawful and also a violation
of Article 5 para. 1 (e) of the Convention.
Hearing the husband
63. Section 17 para. 4 of the Act requires the judge to seek
information from, inter alia, the spouse of the mentally ill person.
It is accepted that he may refrain from hearing the spouse on the
ground that it would constitute a serious psychological burden, but
reasons would have to be given for a decision not to hear the spouse.
That was not done in the applicant's case, where the need to hear the
spouse was all the more important, as he was the person requesting the
detention.
Registrar and procès-verbal
64. Section 72 of the "Reglement I" requires that a registrar
should be present and a procès-verbal drawn up at a hearing regarding
detention. The Supreme Court has on numerous occasions quashed decisions
where a hearing was held but no registrar was present and therefore no
procès-verbal was drawn up, with the result that a copy could not be
provided for the parties. In the applicant's case there was neither a
hearing, nor a registrar and consequently no procès-verbal.
b. Article 5 para. 2 of the Convention&S
65. The Commission has accepted in its report in the case of X v.
United Kingdom (Comm. Report 16.7.80, para. 103, Eur. Court H.R.,
Series B no. 41, p. 43) that Article 5 para. 2 of the Convention is
not limited to the situation dealt in with Article 5 para. 1 (c) of
the Convention.
66. The applicant states that Article 5 para. 2 does apply to her
case. She has a right to know that she is being detained, both to be
able to challenge the lawfulness of her detention and to be able to
institute proceedings requesting her release. She suffered prejudice
because she could not institute release proceedings until after she
knew she was in detention. Therefore, her detention lasted longer
than necessary.
c. Article 5 para. 4 of the Convention&S
67. The European Court of Human Rights has stated that Article 5
para. 4 requires prompt and adequate information to be given to the
person in detention regarding the facts and grounds for his arrest or
detention (Eur. Court H.R., case of X v. United Kingdom of
5 November 1981, Series A no. 46, para. 66). This in itself reveals
a violation of this provision in the applicant's case.
68. Article 5 para. 4 of the Convention also provides that the
decision on the lawfulness of the detention must be made "speedily".
In the applicant's case the release request was made on 6 December 1983
and the decision releasing her was delivered on 7 May 1984. She had
been granted probationary leave on 31 January 1984 but she did not
become aware of this until sometime in March. Moreover, during
probationary leave the applicant may de facto have been at liberty,
but de jure she remained in detention. She could be brought back to
the hospital at any time without any sort of prior procedure or
judicial decision. Article 5 para. 4 of the Convention must apply to
all situations where a person is not de jure at liberty.
69. The decision on the lawfulness of her detention, which gave
rise to the release of the applicant, was made five months after her
request had been submitted. This cannot be called "speedily". In any
case, even if one were only to count the period until probationary
leave was given, i.e. 31 January 1984, that time period would
constitute a violation of Article 5 para. 4 of the Convention.
d. Article 6 para. 1 of the Convention&S
70. The applicant considers that she did not have a fair hearing
as guaranteed by Article 6 para. 1 of the Convention. As regards the
provisions in the Mentally Ill Persons Act concerning the automatic
loss of the legal capacity to administer one's property which might
raise problems under Article 6 para. 1 of the Convention, she admits
that they are no longer applied in the Netherlands.
B. The Government
a. Article 5 para. 1 (e) of the Convention&S
aa. The obligation to hear the patient on the basis of
Section 17 of the Mentally Ill Persons Act
71. Under Article 5 para. 1 (e) of the Convention one of the
requirements is that the detention must be imposed in accordance with
a procedure prescribed by law. In the opinion of the European Court
of Human Rights this element does not entail any specific procedural
guarantee, but it essentially refers to national law. The purpose of
this element is to prevent arbitrary detention and the Court
considered that it could only review the application of national law
in that light. It is up to the national courts to interpret their
national law (see Eur. Court H.R., Winterwerp judgment of 24 October 1979,
Series A no. 33, paras. 45 and 46).
72. The hearing of the patient is an aspect of national procedure
contained in the Act. Section 17 para. 3 requires that the patient
be heard unless, in the judge's opinion, it appears from the
psychiatrist's statement that a hearing would serve no purpose or be
medically contra-indicated. This provision does not contain a
requirement that the judge give reasons for not hearing the patient
and until 1981 reasons were frequently not given. By a decision of
27 November 1981 (NJ 1983, no. 56), however, the Supreme Court
determined that a decision not to hear the patient must be supported
by reasons under Section 17 para. 3 of the Act.
73. The question to be considered here is what the consequences
are, under national law as interpreted by the Supreme Court, of a
judge not hearing the patient while at the same time not indicating
the reasons for not doing so. In particular, would the detention in
such circumstances be unlawful?
74. The Supreme Court's decision of 1 July 1983 (NJ 1984, no. 161)
is instrumental in determining this question. In this case, the
President of a Regional Court (Arrondissementsrechtbank) had failed to
state his reasons for not hearing a patient, in a procedure for
prolongation of detention in a mental hospital under Section 35
para. 3 of the Act (which is identical to Section 17 para. 3 of the
Act concerning initial detention decisions).
In this decision, the President referred to a psychiatrist's statement
dating from the initial detention order as the basis of his decision.
In this statement, the psychiatrist had responded to the question "In
your opinion, in view of the patient's condition, would it serve no
purpose or be medically contra-indicated for the patient to be heard by
a judge?" with the answer "I cannot determine that". In the
opinion of the judge, the patient's condition did render it unnecessary
for him to be heard.
75. The Supreme Court determined that a simple reference to the
psychiatrist's statement did not suffice as reason for the President's
decision. Consequently, the decision was annulled. However, the
Supreme Court went on to say that this did not imply that the decision
had not been made "in accordance with a procedure prescribed by law",
as required by Article 5 para. 1 (e) of the Convention. The Supreme
Court based its opinion on the fact that all the necessary conditions
for compulsory detention had been met and the decision had been taken
by a competent authority.
76. The Supreme Court did, however, consider that, as the patient
was not heard, the supervision required by Article 5 para. 4 of the
Convention was not incorporated in the decision. This was because,
without a hearing, the procedure does not qualify as "proceedings
before a court" in the sense of the Convention. However, this does
not invalidate the detention decision. It merely requires that, in
the whole of the legal system which applies to detention in a mental
hospital, there must be an option for the patient to take proceedings,
as required by Article 5 para. 4 of the Convention. The failure to
hear the detained person before the detention order was given could be
remedied, in the view of the Supreme Court, by a subsequent hearing in
connection with a request for discharge.
77. The Supreme Court then indicated that the requirement of a
hearing should be met in the discharge proceedings governed by
Sections 28 to 30 of the Act. This requires that in future all
release requests which come before the Public Prosecutor would have to
be referred to a court and the patient would always have to be heard.
As a result, Section 29 para. 3 and Section 29 para. 6 in conjunction
with Section 23 para. 2 of the Act are no longer to apply.
78. In the present case the decision not to hear the applicant was
not supported by any reasons. In law that would be the same as not
giving sufficient reasons. Following the reasoning outlined above
that does not lead to the detention being unlawful. The requirement
that the judge give reasons for not hearing the patient is not
contained in the Act, but has been elaborated by the Supreme Court.
The Supreme Court does not consider that a failure to give reasons
leads to the detention being unlawful.
79. The Government is of the opinion that, where the Commission
must decide if a detention was imposed "in accordance with a procedure
prescribed by law", and where it is not the Convention but the
Netherlands Mentally Ill Persons Act which requires that a person be
heard prior to detention (note that the Convention only requires that
a person be heard shortly after detention), the Commission must follow
the interpretation of the requirement to hear as given by the
Netherlands Supreme Court. All the more so where the requirement to
give reasons for not hearing the person to be detained is not a
provision of Dutch law, but has been elaborated by the Supreme Court
itself in its jurisprudence.
bb. Other legal requirements
Danger criterion
80. The determination of the existence of sufficient danger due to
mental illness is an element of the Dutch procedure for detaining
mentally ill persons, and it is the task of the Dutch courts to
determine the existence of such a danger.
81. In the applicant's case the judge did not have to rely only on
the psychiatrist's statement, but he also took into account the
applicant's past history of repeated detention in mental hospitals.
The reasons given in the psychiatrist's statement, i.e. the
applicant's imminent physical exhaustion and the relationship with her
neighbours, which was getting out of hand, could, together with her
past history, be a sufficient justification for the judge's decision
to have the applicant detained. Several notes, statements and advisory
opinions drawn up soon after the applicant's admission to hospital
corroborate this.
Hearing the husband
82. It appears from the parliamentary history of the Bill and from
decisions of the Supreme Court (see for example HR 6.4.1984, NJ 1985,
no. 400) that Section 17 para. 4 of the Act is not meant to make it
compulsory for the deciding judge to hear the spouse of the patient,
due to the possible severe psychological strain which this might place
on the spouse, in particular, where he is the person who requested the
detention authorisation.
Registrar and procès-verbal
83. The Supreme Court requires that, under the Act, when a patient
is heard a Registrar must be present and a procès-verbal must be drawn
up of which, if necessary, a copy must be provided to persons heard.
In its decision of 28 September 1984 (NJ 1985, no. 105), the Supreme
Court determined that not having a registrar present to draw up a
procès-verbal at the session of the court does not in itself
invalidate the decision.
84. In the applicant's case, there was no hearing, and
consequently it was not necessary to have a registrar present. The
applicant cannot be said to have been prejudiced in any way by not
having had a registrar present. This complaint must be considered
subsidiary to the complaint about not being heard.
85. The Netherlands Government reiterate that the District Court
judge's decision, on the basis of the criteria in the Act that there
was sufficient reason to detain the applicant in a mental hospital,
was a valid decision within the meaning of Article 5 para. 1 (e) of
the Convention. Only if it were later to appear that, after due
consideration, this extent of the mental illness and of the danger it
presented could not have been determined, would the District Court
judge's decision have been invalid.
b. Article 5 para. 2 of the Convention&S
86. Article 5 para. 2 of the Convention cannot apply to detention
in a mental hosptial. The wording of para. 2 unequivocally refers to
a right to information concerning arrest and charges made against a
person detained as suspected of an offence. In the case of someone
who is committed to a mental hospital, the reason for the detention is
obvious: that the person is seriously mentally ill and is a danger to
himself, others or public order.
87. However, by failing to inform the applicant of her detention,
which she could not deduce from an arrest as she was already
voluntarily in the hospital, the applicant's right under Article 5
para. 4 of the Convention, to have the lawfulness of her detention
decided speedily by a court, was infringed. For this reason she
should have been promptly informed of her compulsory stay in the
hospital.
c. Article 5 para. 4 of the Convention&S
88. The Netherlands Government maintain their position that
Article 5 para. 4 of the Convention was violated because the applicant
did not have the opportunity to take proceedings to have the
lawfulness of her detention decided speedily by a court as she was not
informed of her detention. Therefore she was prevented from bringing
her case to court to have a decision shortly after 18 November 1983.
89. Furthermore, the Netherlands Government consider that the
applicant's detention lasted from 18 November 1983 until
31 January 1984, when she was granted probationary leave.
d. Article 6 para. 1 of the Convention&S
90. Article 6 para. 1 of the Convention does not apply to the
present case as the District Court judge was not called upon to
determine the applicant's civil rights and obligations. The procedures
to be followed in detaining a person are governed by Article 5 of the
Convention and must be accordingly reviewed in that light and not on
the basis of Article 6 of the Convention.
91. Section 32 of the Mentally Ill Persons Act stipulates that
every adult who is placed in a mental hospital for reasons of insanity
automatically loses the right to administer his property. However,
this provision is no longer applied, as it violates Article 6 of the
Convention. If someone is considered incapable of properly
administering his property, a separate procedure establishing
guardianship can be initiated by the Public Prosecutor. However,
that did not occur in the applicant's case.
IV. OPINION OF THE COMMISSION
A. Points at issue
92. The Commission is called upon to determine the following
questions:
a. Article 5 (Art. 5) of the Convention
- Was the applicant's detention in the psychiatric hospital
ordered in accordance with a procedure prescribed by law and was it
lawful in the meaning of Article 5 para. 1 (e) (Art. 5-1-e)?
- Did the applicant have a right under Article 5 para. 2 (Art. 5-2) to
be informed of her detention and of the reasons for it, and if so, was she so
informed promptly as required by that provision?
- Was the applicant, following the decision to detain her,
given the possibility of taking proceedings to have the lawfulness
of her detention decided in accordance with Article 5 para. 4 (Art. 5-4)?
Furthermore, did the competent District Court give a decision speedily
as required by that provision?
b. Article 6 (Art. 6) of the Convention
- Did the District Court, in ordering the applicant's detention,
determine her civil rights and obligations within the meaning of Article 6
para. 1 (Art. 6-1)? If so, did the proceedings conform with the guarantees
contained in this provision?
B. As regards Article 5 para.1 (Art. 5-1) of the Convention
93. The relevant parts of this provision read as follows:
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 of
unsound mind ...
94. The applicant has alleged that her detention in a psychiatric
hospital was not ordered "in accordance with a procedure prescribed by
law" and that it was not "lawful" within the meaning of Article 5 para. 1 (e)
(Art. 5-1-e). She has pointed out, in particular, that the District Court
judge who ordered her detention did not hear her before taking that decision,
nor did he indicate the reasons for not hearing her in his decision.
95. The Government have admitted that, according to the
jurisprudence of the Dutch Supreme Court, a judge who decides to
detain a person in a psychiatric hospital without a hearing of that
person shall indicate in his decision the reasons why the person
concerned was not heard. In the Government's submission, however,
neither the failure to hear the detained person nor the failure to
indicate the reasons for not hearing that person would make the
decision unlawful or taken in disregard of a procedure prescribed by
law. In particular, the Dutch Supreme Court had considered that a
failure to hear the detained person could be remedied later by giving
that person the opportunity of being heard in connection with the
examination of an application for discharge.
96. The Commission notes that Section 17 para. 3 of the Dutch
Mentally Ill Persons Act provides that, before deciding on a request
for a person's detention in a psychiatric institution, the judge shall
hear the person concerned unless it appears from a statement by a
psychiatrist that in view of the patient's condition, a hearing would
serve no purpose or be medically contra-indicated.
97. In the present case, this condition for not hearing the
applicant was not fulfilled. Indeed, in the statement which had been
signed by a psychiatrist and which was invoked in support of the
applicant's detention, the psychiatrist had answered in the negative
the question whether it would serve no purpose or be medically
contra-indicated to hear the applicant. Moreover, in the form which,
signed by the judge, constituted the order for the applicant's
detention, the pre-printed reference to the exception for cases where
a hearing would serve no purpose or be medically contra-indicated had
been deleted, which seems to indicate that the judge had not
considered this exception to be applicable. Nor did he indicate in his
order any other reasons for not hearing the applicant.
98. In these circumstances, the Commission considers that the
conditions laid down in Dutch law for not hearing the applicant have
not been shown to have been satisfied. Consequently, the applicant's
detention was not ordered in accordance with a procedure prescribed by
Dutch law and it does not therefore satisfy the conditions of Article 5 para. 1
(Art. 5-1). Having reached this conclusion, the Commission does not find it
necessary to examine also whether or not the applicant's detention was "lawful"
within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.
99. The Commission has further examined whether Article 5 para. 1
(Art. 5-1) has also been violated in other respects by failure to observe any
rules provided for in Dutch law. It has noted on this point the
applicant's allegations:
a. that, contrary to Section 17 para. 1 of the Act, the existence
of mental illness and the necessity or desirability of treatment in a
mental hospital had not been proved,
b. that, contrary to Section 17 para. 4 of the Act, the
applicant's husband had not been heard, and
c. that, contrary to certain procedural rules, a registrar was
not present to draw up a procès-verbal when her detention was decided.
100. However, the Commission finds no violation of Article 5 para. 1
(Art. 5-1) on any of these three points. As regards the substantive conditions
for the applicant's detention the Commission notes that this is a
question which must primarily be examined and decided by the competent
national court, and the Commission does not have at its disposal any
material which would allow it to form any opinion of its own on how
this question was evaluated by the District Court judge. As regards
the hearing of the applicant's husband, the Commission notes that the
provision in Section 17 para. 4 of the Act is not of any absolute
character and that exceptions are permitted in Dutch practice.
Finally, the Commission considers that the rules that a registrar
should be present and a procès-verbal should be drawn up are closely
connected with the holding of a hearing and that no hearing was held
in the present case.
Conclusion
101. The Commission concludes unanimously that there has been a violation of
Article 5 para. 1 (Art. 5-1) of the Convention in that the applicant was not
heard by the judge before he decided on her detention.
C. As regards Article 5 para. 2 (Art. 5-2) of the Convention
102. This provision reads:
"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."
103. The applicant claims that Article 5 para. 2 (Art. 5-2) was violated
because she was not promptly informed of the decision of 18 November 1983
ordering her detention in the psychiatric hospital where she was, up to that
date, treated on a voluntary basis. The Government admit that the applicant
should have been so informed. The Government consider, however, that the
failure to inform her of the judge's decision of 18 November 1983 violated
Article 5 para. 4 (Art. 5-4) , as opposed to Article 5 para. 2 (Art. 5-2), and
that in any event the applicant suffered no disadvantage as a result because
she left the hospital on 26 January 1984. In addition it is pointed out that
as of 31 January 1984 the applicant's discharge on probation was ordered.
104. The European Court of Human Rights has so far left open the question
whether Article 5 para. 2 (Art. 5-2) applies only to arrest for a criminal
charge as might be deduced from the wording of that provision: "... shall be
informed ... of the reasons for his arrest and of any charge against him." In
the case of X v. United Kingdom it considered that the issue under Article 5
para. 2 (Art. 5-2) was absorbed by the fact that a violation was found of
Article 5 para. 4 (Art. 5-2), a provision which also required that an arrested
person be apprised of the reasons for his or her arrest in order to be in a
position to take proceedings with a view to determining the lawfulness of his
or her detention (judgment of 5 November 1981, Series A no. 46, p. 28 para.
66).
105. The Commission maintains its opinion which it already expressed in the
aforementioned case that the protection offered by paragraph 2 of Article 5
(Art. 5-2) extends to all forms of arrest effected in accordance with any of
the provisions in sub-paragraphs (a) to (f) of Article 5 para. 1 (Art. 5-1).
The Commission further considers that, although Article 5 para. 2 (Art. 5-2)
refers to "the reasons for his arrest", it must be implied that an arrested
person should also be informed of the fact of his arrest insofar as the arrest
does not already appear clearly from the factual situation.
106. However, the question arises whether, on the basis of the
finding of the Court in the case of X v. United Kingdom (see above in
para. 104), the issue under Article 5 para. 2 (Art. 5-2) should also in the
present case be considered to be absorbed by the wider issue under
Article 5 para. 4 (Art. 5-4).
107. The Commission notes, in this regard, an important difference
between the two cases in that the failure to inform the present
applicant did not only concern the reasons for her deprivation of
liberty but also the fact itself that she was deprived of her
liberty. The applicant had been admitted to the hospital as a
voluntary patient, and it did not appear from any changes in her
factual situation that she was, from a certain moment, in the hospital
on a non-voluntary basis. The Commission considers it to be a
fundamental requirement that a person who is deprived of his liberty
should be made aware of this fact, and the purpose of this requirement
is not only to make it possible for the person concerned to challenge
the lawfulness of the deprivation of liberty but also, in general, to
make him aware of an important change of his status. Consequently, the
Commission considers that, in the present case, the issue under Article 5 para.
2 (Art. 5-2) is not absorbed by the issue under Article 5 para. 4 (Art. 5-4)
and that the failure to inform the applicant of her deprivation of liberty
constituted a violation of Article 5 para. 2 (Art. 5-2).
Conclusion
108. The Commission concludes unanimously that there has been a
violation of Article 5 para. 2 (Art. 5-2) of the Convention.
D. As regards Article 5 para. 4 (Art. 5-4) of the Convention
109. This provision reads:
"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."
110. The applicant has alleged that this provision has been
breached in two respects, namely:
a. in that she was not informed of the decision to detain her,
and
b. in that her request of 6 December 1983 for her discharge was
not decided speedily by the Regional Court whose decision was not
given until five months later, i.e. on 7 May 1984.
111. The Government have admitted that Article 5 para. 4 (Art. 5-4) has
been violated on the ground that the applicant had not been immediately
informed of the decision ordering her detention. They consider, however, that
there has been no further violation of that provision by reason of delay in
deciding on the applicant's request of 6 December 1983. They point out that the
whole period up to 7 May 1984 should not be taken into account, since the
applicant left the hospital already on 26 January 1984 and was from that date
no longer deprived of her liberty.
112. The Commission first notes the judgment of the Court in the
case of X v. United Kingdom according to which Article 5 para. 4 (Art. 5-4)
requires that an arrested person be apprised of the reasons for his arrest in
order to be able to take proceedings with a view to determining the lawfulness
of his detention (judgment of 5 November 1981, Series A no. 46, p. 28
para. 66).
113. The Commission recalls that in the present case it has found
that the failure to inform the applicant of her detention constituted
a violation of Article 5 para. 2 (Art. 5-2) of the Convention, and it also
indicated the reasons why in this case the issue under Article 5
para. 2 (Art. 5-2) should not be considered as absorbed by the issue under
Article 5 para. 4 (Art. 5-4) (see para. 107 above).
114. It is nevertheless obvious that the failure to inform the
applicant of her detention in the hospital as from 18 November 1983
had a special relevance in regard to her right under Article 5
para. 4 (Art. 5-4) to take proceedings to challenge the lawfulness of her
detention. In fact, since she was not aware of her detention, she was
unable, for some time, to take any such proceedings.
115. Consequently, the Commission finds no reason to depart from
the case-law of the Court in the case of X v. United Kingdom, and it
considers that the failure to inform the applicant about her detention
constituted a violation of Article 5 para. 4 of (Art. 5-4) the Convention.
116. After the applicant had become aware that she was detained,
she requested her discharge on 6 December 1983. The request was
refused by the board of the hospital on 15 December 1983 and was then,
through the Public Prosecutor, brought before the Regional Court of
The Hague. The Court decided on 7 May 1984 to discharge her, but the
applicant had already on 26 January 1984 left the hospital without
permission, and she had been provisionally discharged as from
31 January 1984.
117. The Commission considers that, in the examination of whether a
decision was taken speedily on her request, only the time should be
considered during which she was actually deprived of her liberty, i.e.
the period from 6 December 1983 to 26 January 1984. However, since
the applicant had not been heard by the judge before the detention
order was issued, and since the making of her request for discharge
might well have been substantially delayed by the failure to inform
her of the detention order, there were special reasons to avoid any
further delay in the examination of her request of 6 December 1983.
In these circumstances, and since no specific elements have been
invoked which could justify the fact that on 26 January 1984, i.e.
about seven weeks after the request was made, no decision had yet been
taken by the Regional Court, the Commission considers that the
decision on the lawfulness of the applicant's detention was not taken
speedily within the meaning of Article 5 para. 4 (Art. 5-4).
Conclusion
118. The Commission concludes unanimously that there has been a
violation of Article 5 para. 4 (Art. 5-4) of the Convention.
E. As regards Article 6 para. 1 (Art. 6-1) of the Convention
119. The relevant parts of Article 6 para. 1 (Art. 6-1) read as follows:
"In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal
established by law. ..."
120. The applicant has alleged that she did not have a fair hearing
in regard to the decision to detain her in a psychiatric hospital, contrary to
Article 6 para. 1 (Art. 6-1) of the Convention. The Government consider that
regarding her detention, since these proceedings do not concern her "civil
rights and obligations". In particular, the Government have pointed out that
her detention in a psychiatric hospital did not mean that she was deprived of
her capacity to administer her property. The applicant has confirmed that she
retained her capacity in this regard.
121. The Commission considers that proceedings for the
authorisation of a person's detention in a psychiatric hospital do not
as such concern the determination of that person's "civil rights and
obligations" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur. Court
H.R., Neumeister judgment of 27 June 1968, Series A no. 8, p. 43 para. 23; No.
9661/82, Dec. 14.7.83, D.R. 34 p. 127). This would only be the case if, as in
the Winterwerp case (Eur. Court H.R., judgment of 24 October 1979, Series A
no. 33, p. 28 para. 73), it was found that the detention had indirect effects
on the detained person's right to administer his property or to carry out legal
transactions. The parties are agreed, and the Commission accepts, that there
was no such effect in the present case.
122. It follows that there has been no violation of the applicant's
right to a fair hearing in the determination of her civil rights and
obligations.
Conclusion
123. The Commission concludes unanimously that there has been no
violation of Article 6 para. 1 (Art. 6-1) in the present case.
F. Recapitulation
124. The Commission concludes unanimously that there has been a violation of
Article 5 para. 1 (Art. 5-1) of the Convention in that the applicant was not
heard by the judge before he decided on her detention (para. 101).
The Commission concludes unanimously that there has been a
violation of Article 5 para. 2 (Art. 5-2) of the Convention (para. 108).
The Commission concludes unanimously that there has been a
violation of Article 5 para. 4 (Art. 5-4)of the Convention (para. 118).
The Commission concludes unanimously that there has been no
violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 123).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Separate opinion by Mr. Trechsel
While I agree with the four conclusions the Commission has
reached in this case - as is shown by the unanimous votes - I am
unable to share the reasoning underlying the finding of a violation of
Article 5 para. 4 as regards the lack of information.
The majority considered the lack of information as an
independent ground for the conclusion that Article 5 para. 4 has been
violated.
I am in agreement with the dissenting opinion of Judge
Evrigenis in the Court's judgment in X v. the United Kingdom (judgment
of 5 November 1981, Series A No. 46) who stressed the autonomous
character of the right to information under Article 5 para. 2.
However in that case, the majority of the Court took a different
position by finding it unnecessary to decide whether or not the
alleged lack of information concerning the reasons for the applicant's
recall to Broadmoor prison constituted a violation of Article 5 para.
2, "especially since the facts of the case are not entirely clear"
(loc. cit., para. 66). The Court emphasized that due to a lack of
information the applicant was not able effectively to exercise his
right under Article 5 para. 4 and therefore found that "there is no
call to rule on the merits of a particular issue which is part of and
absorbed by a wider issue" (loc. cit. in fine).
However, even if one follows the Court's approach, it is
difficult to accept the reasoning by the majority of the Commission in
the present case. Whereas the Court, in my view, gave too little
weight to the right guaranteed by Article 5 para. 2, the Commission
now overstresses it. Not only does it find a violation of the right
to information in itself, but also that such lack of information is a
violation of paragraph 4.
In the present case, where Article 5 para. 2 was rightly
regarded as having been violated, the further violation of Article 5
para. 4 ought to have been based exclusively on the fact that the
applicant's request for release was not decided upon speedily.
APPENDIX I
HISTORY OF PROCEEDINGS
Date Item
______________________________________________________________________
18 May 1984 Introduction of the application
24 April 1985 Registration of the application
Examination of Admissibility
9 October 1985 Commission's deliberations and
decision to invite the Government to
submit observations on the
admissibility and merits of the
application
12 December 1985 Government's observations
6 February 1986 Applicant's observations in reply
16 July 1986 Commission's deliberations
and decision to declare the
application admissible
Examination of the merits
26 August 1986 Decision on admissibility transmitted
to the parties
28 November 1986 Government's observations on the merits
26 March 1987 Applicant's observations on the merits
15 October 1987 Commission's deliberations and
decision to hold an oral hearing
20 January 1988 Oral hearing on the merits
5 July 1988 Commission's consideration of the
draft Report
14 July 1988 Commission's final vote and adoption
of the Report