AS TO THE ADMISSIBILITY OF
Application No. 12596/86
by Leonardus VAN ZOMEREN
against the Netherlands
The European Commission of Human Rights sitting in private on 8
January 1992, the following members being present:
MM.C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs.G. H. THUNE
SirBasil HALL
MM.F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 28 November 1986
by Leonardus VAN ZOMEREN against the Netherlands and registered on 2
December 1986 under file No. 12596/86;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
A.PARTICULAR CIRCUMSTANCES OF THE CASE
The applicant is a Dutch citizen, born in 1962. At the time of
the introduction of his application, he was detained in a State
Institution (Rijksinrichting) in Balkbrug, the Netherlands. In the
proceedings before the Commission he is represented by Mrs. G.E.M.
Later, a lawyer practising in The Hague.
The facts, as submitted by the parties, may be summarised as
follows.
During his childhood the applicant lived in various foster-homes
and homes for children.
In 1980 the applicant was accused of burglary and extortion. The
Juvenile Judge (Kinderrechter) acting as Investigating Judge
(Rechter-Commissaris) of the Regional Court (Arrondissementsrecht-
bank) of The Hague requested a psychiatrist of the Psychiatric
Observation Clinic of the Prison System (Psychiatrische
Observatiekliniek van het Gevangeniswezen) to investigate the
applicant's mental state. In his report of 1 December 1980 the
psychiatrist concluded that the applicant's state of mental health was
not such that he should be placed at the Government's disposal
(terbeschikkingstelling van de regering). In its decision of 30
December 1980 the Regional Court sentenced the applicant to eighteen
months' imprisonment. He was released from prison on 26 March 1981.
On 24 November 1983, the applicant was arrested, charged with
attempt to occasion grievous bodily harm, kidnapping, theft and
possession of a radio-transmitter without a licence. On 17 July 1984,
at the request of the Investigating Judge the same psychiatrist as in
1980 reported on the applicant's mental state. However, this time the
psychiatrist advised that the applicant be placed at the Government's
disposal.
On 11 September 1984 the Regional Court of The Hague sentenced
the applicant to fifteen months' imprisonment and placed him at the
Government's disposal.
The applicant appealed against this decision to the Court of
Appeal (Gerechtshof) of The Hague, in particular because of the fact
that he had been placed at the Government's disposal. He submitted,
inter alia, that between March 1981 and November 1983 he had shown that
he could support himself and that he had not presented a danger to
society.
On 11 February 1985 the Court of Appeal dismissed the applicant's
appeal. The applicant introduced a plea of nullity to the Supreme
Court (Hoge Raad).
On 12 November 1985 the Supreme Court rejected the applicant's
plea of nullity.
By letter of 18 February 1986 the applicant requested the Queen
to pardon him (gratieverzoek). On 25 March 1986 the Deputy Minister
(Staatssecretaris) of Justice replied that a pardon was not possible,
since a measure (maatregel) was involved and not a penalty.
By letter of 14 March 1986 the applicant requested the Minister
of Justice on the basis of Article 37 (e) para. 1 of the Penal Code to
revoke the measure of placement at the Government's disposal.
By letter of 30 May 1986 the Deputy Minister of Justice informed
the applicant that she saw no reason to release him from the placement
at the Government's disposal. By letter of 10 June 1986 the applicant
asked the Deputy Minister of Justice to indicate the reasons for the
rejection of the applicant's request. However, up to the present date
the Deputy Minister of Justice has not answered this letter.
Subsequently, the applicant's placement at the Government's
disposal has been prolonged twice for a year, on 2 November 1987 by the
Court of Appeal of The Hague which had already decided this matter on
appeal in 1985, and on 21 November 1988 by the Regional Court of The
Hague.
Pursuant to the amended legislation (see Relevant domestic law
and practice), the applicant appealed on 25 November 1988 to the Arnhem
Court of Appeal against the decision of the Regional Court of The Hague
of 21 November 1988 to prolong his placement at the Government's
disposal.
On 23 January 1989 the Arnhem Court of Appeal dismissed the
appeal.
At present the applicant is no longer placed at the Government's
disposal.
B. RELEVANT DOMESTIC LAW AND PRACTICE
Since 1928 the Netherlands Penal Code (Wetboek van Strafrecht)
has contained special provisions applying to persons suffering from a
mental deficiency or mental illness. The provisions were substantially
amended by an Act of 19 November 1986, which came into force on 1
September 1988. According to Article 37, the perpetrator of an offence
which cannot be imputed to him because he suffers from a mental
deficiency or mental illness is not liable to punishment. If the
protection of public order so requires, the court may direct that such
a person be placed at the Government's disposal so that he can receive
treatment at the Government's expense.
Such a measure may also be taken in conjunction with a criminal
sanction if the convicted person's responsibility was merely diminished
at the time of the offence (Article 37 (a)).
Under Article 37 (b) para. 1, the placement lasts for two years
unless the Government terminates it earlier. This period commences as
soon as the judgment ordering it has become final (paragraph 2
thereof); it is suspended by any other deprivation of liberty resulting
from a judicial decision (paragraph 3).
The court which makes the initial order may extend the
confinement, on each occasion for one or two years (Article 37 (b)
para. 2), on an application by the public prosecutor, himself acting
on the opinion of the director of the clinic where the detainee is
given treatment. In practice, placement is indefinite with a review
of the detainee's psychiatric status every year or every second year.
The Minister of Justice may terminate the placement at the Government's
disposal any time. No appeal is available against this decision.
However, the detainee can institute summary proceedings (kort
geding) on the ground that the Minister has acted unlawfully by
rejecting his request for release. Although these proceedings do not
entail an examination of the merits of the case, the President of the
Regional Court may, by means of an immediately enforceable ruling,
terminate the placement order when he considers the Minister's refusal
not to be reasonable.
The amended rules governing placement at the Government's
disposal contain several substantial changes concerning the
introduction of certain guarantees for the detainee. Thus, since 1
September 1988, a detainee has the possibility to appeal against an
extension order to the penitentiary chamber (penitentiaire kamer) of
the Arnhem Court of Appeal. Before extending the initial order the
competent court must hear the detainee. Until 1988 there was no such
statutory provision but instructions to that end had been issued to the
courts by a circular of 16 April 1980 of the Minister of Justice.
COMPLAINTS
1. The applicant considers that his detention as a result of the
decision to place him at the disposal of the Government is unjustified.
He argues that the medical evidence on which this decision was based
did not take into account his good conduct between March 1981 and
November 1983. He invokes Article 5 para. 1 (a) and (e) and Article
6 of the Convention.
2. The applicant further complains that the proceedings at his
disposal for the review of the lawfulness of his detention did not meet
the requirements of Article 5 para. 4 of the Convention. In this
respect, he also complains that the decisions on his requests for
pardon and for release from placement at the Government's disposal were
not sufficiently reasoned and that he was unable for lack of means to
call in an independent expert to assess his mental health. He invokes
Article 5 para. 4 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 28 November 1986 and registered
on 2 December 1986.
On 15 December 1988 the Commission decided to communicate the
application to the respondent Government and invite them to submit
written observations on the admissibility and merits of the application
with regard to the issue under Article 5 para. 4 of the Convention
concerning the possibility of instituting proceedings which will review
the mental health of a person placed at the Government's disposal.
The Government's observations were received by letter dated 16
March 1989 and the applicant's observations by letter dated 20 June
1989.
On 15 April 1991 the Commission decided to ask for additional
information from the parties concerning the proceedings for review of
a person's placement at the Government's disposal.
The Government's reply was received by letter dated 4 July 1991
and the applicant's reply by telefax dated 11 September 1991.
THE LAW
1. The applicant considers that there is no basis for his detention
which he regards as unlawful. He considers that the psychiatrist's
report did not take into account his good conduct between March 1981
and November 1983. He invokes Article 5 para. 1 (a) and (e)
(Art. 5-1-a, 5-1-e) and Article 6 (Art. 6) of the Convention.
Article 5 para. 1 (Art. 5-1), insofar as relevant, reads as
follows:
"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:
(a) the lawful detention of a person after conviction by a competent court; ...
(e) the lawful detention ... of persons of unsound mind...;"
The Commission observes that there can be no doubt that the
applicant's prison sentence falls within the scope of Article 5 para.
1 (a) (Art. 5-1-a) of the Convention, as the Regional Court is a
"competent court" within the meaning of this provision.
As regards Article 5 para. 1 (e) (Art. 5-1-e), the Commission
recalls that the placement at the Government's disposal with a view to
treatment, for reason of defective mental development or mental
illness, is equivalent to the "detention of a person of unsound mind"
(No. 6852/74, Dec. 5.12.78, D.R. 15 p. 5).
In view of the fact that the applicant's detention is based on
a finding of a state of unsound mind, the Commission will primarily
examine it under Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.
On the question whether the detention is "lawful", including
whether it complies with "a procedure prescribed by law", the
Convention refers back essentially to national law and lays down the
obligation to conform to the substantive and procedural rules thereof.
However, it requires in addition that any deprivation of liberty should
be consistent with the purpose of Article 5 (Art. 5), namely to protect
individuals from arbitrariness (Eur. Court H.R., Wassink judgment of
27 September 1990, p. 7, para. 24).
The Commission notes that the applicant's detention was ordered
by the Regional Court of The Hague on the basis of Articles 37 and 37
(a) of the Dutch Penal Code. It was therefore ordered in accordance
with a "procedure prescribed by law" within the meaning of Article 5
para. 1 (Art. 5-1) of the Convention.
As regards the question of the lawfulness of the detention,
regard must be had to the object and purpose of Article 5 para. 1
(Art. 5-1), namely to ensure that no one should be dispossessed of his
liberty in an arbitrary fashion (Eur. Court H.R., Winterwerp judgment
of 24 October 1979, p. 16, para. 37). In particular, the very nature
of a mental disorder calls for objective medical expertise and
furthermore, it must be of a kind or degree warranting compulsory
confinement (ibid., p. 18, para. 39).
In the present case, the psychiatric and medical evidence
submitted to the Regional Court indicated that the applicant suffered
from development psychopathy which required placement at the
Government's disposal.
Despite the applicant's alleged good conduct between March 1981
and November 1983, the Commission has no reason to doubt the
objectivity and reliability of the medical evidence on the basis of
which the Regional Court ordered the applicant's placement at the
Government's disposal. Neither is there any indication that the
contested deprivation of liberty was effected for a wrongful purpose.
The Commission accordingly concludes that the applicant's
detention constitutes "the lawful detention of a person of unsound
mind" within the meaning of sub-paragraph (e) of
Article 5 para. 1 (Art. 5-1).
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)
of the Convention.
2. The applicant also complains about his detention under Article
6 (Art. 6) of the Convention. The Commission recalls that the right
to liberty is not a civil right within the meaning of Article 6
(Art. 6) of the Convention (Eur. Court H.R., Neumeister judgment of 27
June 1968, Series A no. 8, p. 43, para. 23).
It follows that Article 6 (Art. 6) is not applicable with regard
to these proceedings and this particular complaint must be rejected as
being incompatible ratione materiae with the provisions of the
Convention within the meaning of Article 27 para. 2 (Art. 27-2).
3. The applicant finally complains that he could not take
proceedings by which the lawfulness of his detention shall be decided
since the Minister of Justice is not a "court". He invokes Article 5
para. 4 (Art. 5-4) of the Convention which 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."
In this respect, the Commission observes that in accordance with
the Convention organs' case-law (Eur. Court H.R., Luberti judgment of
23 February 1984, Series A no. 75, p. 15, para. 31), the applicant has
been deprived of his liberty by a court decision at the close of
judicial proceedings. As the reasons initially warranting placement
at the Government's disposal may cease to exist, it is essential that
a review of the lawfulness should be available at reasonable intervals.
The court which makes the initial order may extend the confinement, on
each occasion for one or two years (Article 37 (b), para. 2 of the
Dutch Penal Code), on an application by the public prosecutor, himself
acting on the opinion of the director of the clinic. The Commission
therefore concludes, pursuant to the Court's finding in the Keus case
(Eur. Court H.R., judgment of 25 October 1990, Series A no. 185-C,
para. 24), that the contested proceedings amounted to an "automatic
review of a judicial character".
The question arises nevertheless whether a fresh review was
available to the applicant during the two years between the initial
order and the extension order.
In this respect the applicant argues that instituting summary
proceedings (kort geding) does not constitute an effective means for
assessing the lawfulness of the detention since it involves merely a
marginal review of the Minister's rejection of the request for release.
He argues that practice has shown that a release will seldom be
obtained through these proceedings.
The Government submit that the safeguards contained in the review
proceedings justify the absence of a specific legal remedy against the
Minister's refusal. However, an action on the basis of Article 1401
of the Civil Code in summary proceedings can provide the detainee with
an effective redress in that the President of the Regional Court may
order his release if he considers the Minister's refusal to be
unreasonable.
The Commission shares the applicant's view that a request for
release addressed to the Minister of Justice cannot be regarded as
proceedings before "a court". The Commission refers in this respect
to the Keus judgment (Eur. Court H.R., Keus judgment of 25 October
1990, Series A no. 185-C, pp. 67-68 para. 28). However, the Commission
notes that the applicant could have instituted summary proceedings to
obtain his release on the ground that, in the light of the improvement
of his mental state, public order no longer required the continuation
of his placement. The Commission recalls that the Court has held in
the above-metioned Keus judgment (ibid., para. 28) that summary
proceedings constitute an effective means of contesting the Minister's
decision and that they satisfy the requirements of Article 5 para. 4
(Art. 5-4) of the Convention.
In view of the above, the Commission finds that the applicant was
able to obtain a fresh review during the period of two years between
the initial order and the review proceedings resulting in an extension
of his placement at the Government's disposal. Whether or not the
applicant considered it advisable to have recourse thereto makes no
difference in this respect.
Insofar as the applicant complains that the decisions on his
requests for pardon and for release were not sufficiently reasoned and
that his indigence prevented him from calling in an independent expert
to examine his mental health, the Commission observes that this
complaint raises no issue under para. 4 of Article 5 (Art. 5-4) as
these proceedings fall outside the scope of this provision.
It follows that the application in this respect is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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