AS TO THE ADMISSIBILITY OF
Application No. 13662/88
by W.H.
against the Netherlands
The European Commission of Human Rights sitting in private
on 7 May 1990, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 26 January 1988
by W.H. against the Netherlands and registered on 11 March 1988 under
file No. 13662/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Dutch citizen, born in 1951 and at present
residing at Ede, the Netherlands. In the proceedings before the
Commission he is represented by Mr. G.P. Hamer, a lawyer practising in
Amsterdam.
The facts, as submitted by the parties, may be summarised as
follows:
On 21 June 1987 the applicant's wife left him and took their
9 year old daughter with her. On 31 July 1987, in the subsequent
divorce proceedings, custody of the daughter was provisionally awarded
to the wife. The applicant had the right to see the child every two
weeks.
The applicant was upset by this. He spoke with a social
worker, a clergyman, his mother and a brother about wanting to kill
himself. He apparently threatened to involve his daughter in his
suicide. It appears that he alluded to preparing a "pretty present"
for his wife's birthday on 8 August 1987. The respondent Government
submit that he had stated to his mother, among others, that if he
could not have the child, then his wife should not have her either.
The applicant was due to see his daughter on 7 August 1987. In
view of his allusions to suicide, the people in whom he had confided
feared that he meant to kill his daughter on 7 August. He apparently
had attempted suicide once in 1972 after a girl-friend had left him.
The social worker and the clergyman visited the applicant on 7 August
and were sufficiently concerned about his emotional state to contact
the police and a psychiatrist in order to examine ways of averting a
possible killing or suicide.
Under Section 12 of the Act of 27 April 1884 on State
supervision of mentally ill persons (wet van 27 april 1884, Stb. 96,
tot regeling van het Staatstoezicht op krankzinnigen, usually referred
to as the Mentally Ill Persons Act (Krankzinnigenwet)) the applicant's
mother requested the District Court judge (Kantonrechter) of
Wageningen to order the applicant's detention in a psychiatric
hospital. Under Section 16 of the Mentally Ill Persons Act such a
request should be accompanied by a certificate of a psychiatrist. In
the present case a psychiatrist drew up such a certificate on 7 August
1987, advising the applicant's detention as, according to her, there
was a danger that he would kill his daughter and would commit suicide.
This psychiatrist had never met the applicant. It appears that, in
consultation with the District Court judge, the psychiatrist had
decided not to see the applicant. Under Section 16 of the Mentally
Ill Persons Act the medical certificate must state, as far as
possible, with reasons, whether the patient's condition is such that
it would serve no purpose or be medically contra-indicated for him to
be heard by the judge. In the present case the psychiatrist declared
in this respect that it was contra-indicated to hear the applicant
unless a hearing could take place on neutral ground, such as a police
station.
On 7 August 1987 the District Court judge ordered the
applicant's detention in a psychiatric hospital for six months, after
hearing the applicant's mother, the social worker and the clergyman.
The applicant was not heard by the District Court judge before the
latter took his decision, without the judge giving reasons for not
hearing him. The respondent Government submit that a hearing on
neutral ground could not possibly be arranged as the police have no
authority to move the applicant from his house until they have the
court's order.
In the afternoon of 7 August 1987 the applicant was picked up
by the police and taken to the local police station. There he was
informed by police officers of the decision to commit him to a
psychiatric hospital in the interest of his daughter's welfare.
Subsequently, he was taken to the psychiatric hospital "Wolfheze",
where, the next day, the social worker visited him to explain the
motives for his committal. The applicant did not see a copy of the
committal order until he received one at a later date from his lawyer,
apparently several weeks after he had been taken into detention.
On 10 August 1987 the District Court judge phoned the lawyer
who was representing the applicant in his divorce proceedings,
informing the lawyer that he was appointed to represent the applicant in
relation to the detention order.
On 3 September 1987 the applicant left the psychiatric
hospital without authorisation. On 4 September 1987 he consulted a
psychiatrist in Amsterdam, who declared that the applicant was not
suicidal and was no danger to others.
On 4 September 1987 the applicant instituted summary
proceedings (kort geding) with the President of the Regional Court
(Arrondissementsrechtbank) of Arnhem against the psychiatric hospital,
requesting an order of prohibition against the execution of the
detention order of 7 August 1987. He submitted, inter alia, that the
detention order was illegal as neither the District Court judge, nor
the psychiatrist who had advised the applicant's detention, had seen
the applicant. He based his claim, inter alia, on Article 5 para.
1(e) of the Convention.
By decision of 7 September 1987 the President of the Regional
Court ordered the psychiatric hospital not to execute the detention
order provided that the applicant would not enter the municipality of
Veenendaal where his daughter lived, and that within ten days he
would request the board of the psychiatric hospital to discharge him,
under Section 29 of the Mentally Ill Persons Act. The order of
prohibition would stand until the Regional Court had decided on the
request for discharge except in case of a discharge by the board of
the psychiatric hospital at an earlier stage.
By letter of 14 September 1987 the applicant requested the
board of the psychiatric hospital to discharge him. He submitted that
the detention order was invalid and its execution, therefore,
illegal. He furthermore submitted that in any case on 14 September
1987 he was not mentally ill to such an extent that detention was
necessary.
By letter of 25 September 1987 the board of the psychiatric
hospital advised the Public Prosecutor to reject the request, thereby
indicating that they themselves had rejected the request.
On 5 November 1987 the Regional Court received the request of
the Public Prosecutor to decide on the applicant's request for a
discharge. On 24 November 1987 a hearing was held. The applicant
submitted, inter alia, that the time which had elapsed between the day
he sent his request for a discharge to the board of the psychiatric
hospital and the hearing by the Regional Court amounted to 70 days and
that, therefore, his right to a speedy decision under Article 5 para.
4 of the Convention had been violated. In the applicant's view, this
violation should automatically lead to a discharge without an
examination of the merits.
By decision of 4 January 1988 the Regional Court ordered the
applicant's discharge because it considered a prolonged detention
unnecessary. It found no violation of Article 5 para. 4 of the
Convention, since there was no danger for the applicant that he would
be detained, due to the decision of the President of the Regional
Court of 7 September 1987. The Regional Court considered that even if
there had been a violation of Article 5 para. 4 of the Convention,
this could not lead to a discharge without an examination of the
merits of the case. The Regional Court added that in the case of an
excessive delay the applicant could have instituted summary
proceedings.
On 3 February 1988, the applicant introduced a disciplinary
complaint against the psychiatrist who, without seeing him, had drawn
up the certificate leading to his detention. On 24 September 1988,
the Medical Disciplinary Board (Medisch Tuchtcollege) of Zwolle
reprimanded the psychiatrist. The Board considered, inter alia, that,
despite the apparent urgent danger exhibited by the applicant, the
psychiatrist should have made every attempt to hear him before drawing
up a certificate. The Board furthermore considered that the
psychiatrist's diagnosis had been incorrect, that the medical
certificate contained falsehoods, and that the psychiatrist should
have understood that the urgency of the situation required that the
applicant be taken into custody by order of the Mayor (Burgemeester),
and not committed to a hospital by order of the District Court judge.
COMPLAINTS
1. The applicant complains that the District Court judge did not
hear him or his lawyer, while the psychiatrist had stated that a
hearing of the applicant was possible provided that it took place on
neutral ground. Section 17 para. 3 of the Mentally Ill Persons Act
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. The applicant complains
furthermore that the District Court judge did not give reasons for not
hearing him. The applicant, therefore, complains that he was deprived
of his liberty in a procedure which was not prescribed by law, within
the meaning of Article 5 para. 1 of the Convention.
2. The applicant complains that he was detained without being
mentally ill. He was not examined by the psychiatrist concerned
before being detained. It also appears that the District Court judge
advised the psychiatrist concerned not to examine the applicant.
The applicant submits that none of the cases listed in Article
5 para. 1 of the Convention were applicable to his situation and he
alleges, therefore, that his detention violated Article 5 para. 1 of
the Convention, and in particular was not permissible under Article 5
para. 1(e).
3. The applicant complains that he was not informed of the reasons
for his arrest. He invokes Article 5 para. 2 of the Convention.
4. The applicant complains that, although by letter of 14
September 1987 he requested the board of the psychiatric hospital to
discharge him, the Regional Court did not order his discharge until
4 January 1988. Thus the Court did not decide speedily on the
lawfulness of his detention, as required by Article 5 para. 4 of the
Convention.
5. The applicant complains that he did not have a fair and public
hearing in the determination of his civil rights and obligations and
that the detention order was not pronounced publicly. He furthermore
complains that the District Court judge told the psychiatrist that
there was no need for her to examine the applicant, thereby favouring
the interests of the applicant's mother, who requested the applicant's
detention. He submits that a detention in a psychiatric hospital
concerns civil rights and obligations. He furthermore submits that as
a result of the placement in a mental hospital he lost the right to
administer his property, which amounts to a deprivation of a civil
right. The applicant invokes Article 6 of the Convention.
6. The applicant complains that, as a result of his detention, he
was limited in his rights and freedoms. In addition, the fact that he
was detained in a psychiatric hospital has become known to third
parties. The applicant complains that there has been an interference
in his private and family life that was not in accordance with the law
and necessary in a democratic society.
The applicant submits that if he was considered to be a danger
to his daughter, a less far-reaching measure than detention could have
been taken.
The applicant complains that his rights and freedoms as set
forth in the Convention were violated but that he did not have an
effective remedy before a national authority since he could not appeal
against the detention order of the District Court judge.
The applicant invokes in regard to these complaints Articles 8
and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 January 1988 and
registered on 11 March 1988.
On 10 March 1989 the Commission decided to communicate the
application to the respondent Government and to invite them to submit
their observations on the admissibility and merits of the application.
The respondent Government's observations were submitted, after
an extension of the time-limit, on 22 June 1989.
The applicant's observations in reply were submitted on
22 August 1989.
THE LAW
The applicant complains that he was detained in a psychiatric
hospital without being heard beforehand, either by the psychiatrist
who drew up a medical certificate or by the District Court judge who
ordered his detention for six months. He submits that he was not of
unsound mind and that his detention was unlawful and not ordered in
accordance with a procedure prescribed by law. He alleges that he was
not informed of the reasons for his detention and that the Regional
Court did not decide on his request for release with due speed.
Furthermore, he complains that he was denied the right to a fair
hearing, that his committal to a psychiatric hospital amounts to an
unjustifiable interference with his right to respect for his private
and family life and that, as no appeal against the committal order is
possible, he had no effective legal remedy concerning these
complaints. The applicant invokes Article 5 paras. 1, 2 and 4
(Art. 5-1-2-4), and Articles 6 para. 1 (Art. 6-1), 8 (Art. 8)
and 13 (Art. 13) of the Convention.
The respondent Government submit that, in the circumstances of
this case, the crisis situation which occurred on 7 August 1987
justified the conclusion that the applicant's mental state constituted
a danger to himself and his daughter warranting committal to a
psychiatric hospital. They point out that the applicant was only
detained from 7 August to 7 September 1987, which accords with the
general situation in the Netherlands that over three-quarters of the
patients committed to a psychiatric hospital do not remain in detention
for the full six months authorised by the court order.
Furthermore, the Government submit that the Mentally Ill
Persons Act does not require the psychiatrist who draws up a
certificate to hear the patient. It also allows the District Court
judge to refrain from hearing the patient if that is medically
contra-indicated. The Government consider that the judge was
justified in concluding that the applicant could not be heard, and
that the urgency of the situation warranted the procedural options
which were chosen. The Government concede, however, that the Mentally
Ill Persons Act, in Section 35b and following, provides for a
different procedure in urgent cases, whereby the Mayor (Burgemeester)
authorises detention for three weeks, to be followed by a speedy
judicial confirmation. Although the procedure chosen in the present
case was followed correctly, it was not the procedure designed for the
applicant's type of case. The Government refrain from drawing any
conclusions in this respect under Article 5 para. 1 (Art. 5-1) of the
Convention.
As regards Article 5 para. 2 (Art. 5-2) of the Convention, the
Government contend that it does not apply to this type of detention,
and that the applicant, nevertheless, was fully informed of the
reasons for his detention by the police officers and the social worker
on 7 and 8 August 1987 respectively. Regarding Article 5 para. 4
(Art. 5-4) of the Convention,the Government argue that, after the
President of the Regional Court in summary proceedings had suspended
the further execution of the detention order on 7 September 1987, the
applicant no longer had to fear being taken into detention and,
therefore, Article 5 para. 4 (Art. 5-4) was no longer applicable to
the release procedure.
Finally, the respondent Government submit that the applicant's
capacity to administer his property was not affected by his
detention. The relevant provisions of the Mentally Ill Persons Act
have been officially declared inoperative. Therefore, Article 6
para. 1 (Art. 6-1) of the Convention does not apply to this case.
In reply, the applicant submits that he was never "of unsound
mind", as was proven by the second psychiatrist's report of 4
September 1987 and by the decision of the Medical Disciplinary Board
against the first psychiatrist. He contends that he never had an
opportunity to defend himself against this medical opinion.
Furthermore, he submits that, as the Government state, the proper
procedure in urgent mental health cases was not followed, and, in the
procedure which was followed, he argues that not hearing the patient
before committing him to a psychiatric hospital for six months cannot
be considered a lawful procedure. He submits that the decision of the
President of the Regional Court in summary proceedings to suspend the
execution of the committal order was unusual, and illustrates the
unlawfulness of the detention.
The applicant also alleges that he was not properly informed
of the reasons for his detention and did not receive a copy of the
committal order. Finally, he submits that, as regards a speedy
examination of his detention under Article 5 para. 4 (Art. 5-4) of the
Convention, it is true that after 7 September 1987 the committal order
was no longer executed, but this was conditional on his not returning
to Veenendaal. The committal order nevertheless remained formally in
effect until the decision of 4 January 1988. The applicant also
contests the Government's claim that the legal provisions relating to
his capacity to administer his property are inoperative.
The Commission considers that the application raises important
questions of law and facts which as a whole can only be determined in
an examination of the merits of the case. It is therefore not
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for inadmissibility
have been established.
For this reason, the Commission
DECLARES THE APPLICATION ADMISSIBLE
without prejudging the merits of the case.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy