CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 juillet 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                          Application No. 11509/85                   by Hendrika Wilhelmina VAN DER LEER                         against the Netherlands           The European Commission of Human Rights sitting in private on 16 July 1986, the following members being present:   Present:      MM.         C.A. NØRGAARD, President                         J.A. FROWEIN                         F. ERMACORA                         E. BUSUTTIL                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                     Mrs G.H. THUNE                     Sir Basil HALL                   Mr H.C. KRÜGER, Secretary to the Commission           Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 18 May 1984 by Hendrika Wilhelmina VAN DER LEER against The Netherlands and registered on 24 April 1985 under file No. 11509/85;           Having regard to:   -        the report provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the Commission's decision of 9 October 1985 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;   -        the observations submitted by the respondent Government on 12 December 1985 and the observations in reply submitted by the applicant on 6 February 1986;           Having deliberated;           Decides as follows:   THE FACTS           The facts of this case, as they have been submitted by the parties, may be summarised as follows:           The applicant is a Dutch citizen, born in 1922, and at present residing at The Hague, the Netherlands.   In the proceedings before the Commission she is represented by Mrs. G. E. M. Later, a lawyer practising at The Hague.           On 11 November 1983, the applicant was, on a voluntary basis, admitted to a psychiatric hospital at The Hague.   Her health insurance association, provisionally, agreed that she be treated until 12 February 1984.           Some time after 18 November 1983 the applicant discovered that she was no longer a voluntary patient, but that she was detained at the psychiatric hospital by decision of the District Court judge (Kantonrechter) of The Hague of 18 November 1983, taken at the request of her husband.   The request was supported by a medical declaration drawn up by a psychiatrist, who examined the applicant on 16 November 1983 at the hospital.   It appears from this declaration that the psychiatrist did not consider it to be meaningless or undesirable on medical grounds that the applicant be heard in court.           The applicant was not informed of the above request, nor heard by the District Court judge.   Moreover, it appears that she did not receive a copy of the decision ordering her detention.           The applicant, therefore, contacted her lawyer on 29 November 1983, who, on 6 December 1983, requested the board of the psychiatric hospital, in accordance with Section 29 para. 1 of the Mentally Ill Persons Act (Krankzinnigenwet) to order the release of the applicant. However, on 15 February 1984, this request was refused.           During hearings on 5 March 1984, 16 April 1984 and 7 May 1984 the request was considered by the Regional Court (Arrondissements- rechtbank) of The Hague.   It is in dispute between the parties whether there was also a hearing on 26 March 1984. The applicant was officially released on 7 May 1984.           In fact, however, the applicant had already been taken out of the hospital by her husband on 26 January 1984.   Nevertheless, the hospital informed the applicant's lawyer on 19 April 1984 that the applicant had left on probation on 31 January 1984.   The applicant appears not to have been informed of this.   COMPLAINTS           The applicant complains that she was not heard by a court, although it appears from the medical declaration, on the basis of which her detention was ordered, that this would not have been meaningless or undesirable from a medical point of view.           She submits that she was therefore detained in violation of Section 17 para. 3 of the Mentally Ill Persons Act.           The applicant, in addition, complains that certain data from the medical declaration were inapplicable since she had already been admitted to the psychiatric hospital.   This was contrary to Section 17 para. 1 of the Mentally Ill Persons Act.           Moreover the applicant claims that the District Court judge failed to obtain information from certain persons, as required by Section 17 para. 4 of the Mentally Ill Persons Act.           Furthermore, the applicant complains that no registrar was present during the District Court judge's examination of her case and that no procès-verbal was drawn up.           The applicant, for the above reasons, contends that she was not detained "in accordance with a procedure prescribed by law". Consequently, her detention was contrary to Article 5 para. 1, sub-para. e of the Convention.           The applicant also complains that she was not informed of the reasons for her detention and that she did not have the possibility to have the lawfulness of her detention decided speedily by a court.   She alleges violations of Article 5 paras. 2 and 4 of the Convention in this respect.           Finally, the applicant complains that she did not have a fair trial, contrary to the requirements of Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 18 May 1984 and registered on 24 April 1985.           On 9 October 1985, the Commission decided to invite the respondent Government, pursuant to Rule 42 para. 2, sub-para. b of its Rules of Procedure, to submit written observations on admissibility and merits before 20 December 1985.           The Government's observations were submitted on 12 December 1985, the applicant's observations in reply on 6 February 1986.           On 25 February 1986, the Government informed the Commission that they would prefer to submit any further observations in writing.           On   16 May 1986, the Commission decided that the applicant be granted legal aid.   SUBMISSIONS OF THE PARTIES   A.     The Government   Violation of Article 5 para. 1, preamble and sub-para. e of the Convention           The applicant claims that in the case of her compulsory admission to a psychiatric hospital a violation of Article 5 para. 1 preamble and sub-para. e of the Convention occurred because a number of provisions of the Mentally Ill Persons Act, as interpreted by the Supreme Court (Hoge Raad), and various regulations issued by way of implementing the Judiciary (Organisation) Act were infringed.   The violations of Dutch law claimed by the applicant, which in her view constitute a violation of Article 5 para. 1 preamble and sub-para. e of the Convention are the following:   1.       violation of the provision relating to the duty of the judge to hear the person concerned, laid down in Section 17, subsection 3 of the Mentally Ill Persons Act;   2.       violation of Section 17, subsection 1 of the Mentally Ill Persons Act, because the medical certificate on which the court order was based did not sufficiently demonstrate that the person in question posed such a threat that treatment in a psychiatric hospital was desirable or necessary.   Reference is made here to the rulings of the Supreme Court on assessment in the light of the criterion of danger;   3.       violation of Section 17, subsection 4, because the judge did not obtain the views of the husband of the applicant;   4.       violation of Article 72, paras. 1 and 3 of Regulation I, because it does not appear from the order that a hearing took place, that anyone was heard, that a registrar was present or that an official report was drawn up.           As to point 1, on 18 November 1983, the judge of the District Court in The Hague authorised the provisional admission of the applicant to a psychiatric hospital.   Contrary to Section 17, subsection 3 of the Mentally Ill Persons Act, the District Court judge did not hear the applicant and gave no reason for this omission. According to rulings of the Supreme Court no appeal in cassation may be lodged against the decision of a District Court judge relating to the above-mentioned authorisation on the grounds that the District Court judge failed to fulfil his obligation to hear the patient in question (Supreme Court, 27 November 1981, NJ (Dutch Law Reports) 1983, 57).   However, in its ruling of 1 July 1983 (NJ 1984, 161, with note E.A.A.), the Supreme Court pointed out that Section 29 of the Mentally Ill Persons Act provides an opportunity to remedy the omission of the judge with regard to the obligation to hear the patient, contained in Section 127, subsection 3 of the Mentally Ill Persons Act.   Section 29, subsection 1 entitles the patient to apply to the governors of the psychiatric hospital for discharge.   The governors must immediately obtain a recommendation from the medical practitioner attached to the hospital.   In the case of a recommendation to refuse the application the governors forward the application together with the recommendation to the Public Prosecutor within whose district the hospital is located. The Public Prosecutor then applies to the court for a ruling.   These provisions are laid down in Section 29, subsection 2 of the Mentally Ill Persons Act. Subsection 3 of this Section authorises the Public Prosecutor to deny the patient access to the courts, but according to the above-mentioned Supreme Court ruling this provision should not be applied in cases in which the patient has applied to be discharged on the grounds that he or she was not heard by the judge who issued the authorisation (Considerations of Law 3.4 and 3.5).   By letter of 18 November 1985 addressed to the Chief Public Prosecutors and dealing with the application of the Mentally Ill Persons Act, the Minister of Justice drew attention to these provisions governing applications for discharge which provide an opportunity to remedy an omission by the judge with regard to the obligation to hear the patient (Government Gazette 1985, No. 235).           The applicant made use of this provision of the Mentally Ill Persons Act, with the result that the Regional Court of The Hague gave her the opportunity of being heard on successive occasions on 5 March, 26 March, 16 April and 7 May 1984.   On these occasions the applicant arranged for her counsel to represent her.   In view of the foregoing the Government believe that the failure of the District Court judge to fulfil his duty to hear the patient was redressed during the court's handling of the application for discharge from the psychiatric hospital.           With regard to point 2, the applicant states that Section 17, subsection 1 of the Mentally Ill Persons Act was violated because the criterion of danger applied by the Supreme Court for compulsory admissions was not met. The essence of this criterion is that the individual's mental illness poses such a grave threat to the individual himself/herself, to others and to the general safety of persons or property that compulsory admission to hospital is desirable or necessary.           The assessment of whether a danger does exist is tied up with the evaluation of factual data.   To establish the validity of the decision reached would require a thorough investigation of the facts. However, on the basis of the documentation, the Government considers it highly probable that at the time the District Court judge gave the authorisation, a danger, in the sense used above, did indeed exist. The Government bases its view on a consideration stated in the order made by the Regional Court of The Hague on 26 March 1984 which reads as follows:           "Considering that the applicant, as she herself states and         as is officially known by the court, has a tendency towards         the end of the year to display symptoms of mental illness         which mean that she requires institutional care; that the         applicant was accordingly admitted to hospital from         24 December 1980 to 16 February 1981, from 13 December 1981         to the end of the period of care ordered on that occasion,         from 10 November 1982 to the end of the period of care         ordered and from 28 September 1983 to the end of the period         of care ordered, after which her voluntary stay in the         institution was converted into a new compulsory stay on         18 November 1983 by the contested authorisation of the         District Court judge."           The Government would make the following observations with regard to point 3:   Section 17, subsection 4 of the Mentally Ill Persons Act does not compel the judge to obtain the views of the persons mentioned therein. This provision was introduced in the Act of 28 August 1970 amending the Mentally Ill Persons Act. The original bill contained a provision requiring the judge, insofar as is relevant here, to offer the spouse the opportunity of stating his/her views, provided he or she was not the party which had applied for the authorisation.   It appears from the Explanatory Memorandum that the provision was intended to prevent close relatives being taken by surprise by an authorisation (Proceedings II 1962-1963, 71946 No. 2, Article I b) and No. 3, p. 1).           The provision was given its present form in the Memorandum of Amendment submitted together with the Memorandum of Reply (Proceedings II, 1967-1968, 71946 No. 6).   In the Memorandum of Reply the Government noted that the provisional report had urged that the judge should be compelled to interview the relative(s) who had applied for the authorisation.   The Government then observed that this obligation was not incorporated in the final version because of the feeling that having to appear before a judge might place a severe psychological strain on the person or persons who had applied for the authorisation (Proceedings II, 1967-1968, 71946, No. 5, p. 5).   In this context reference may also be made to the Supreme Court's judgment of 6 April 1984, (NJ 1985, No. 400, with a note by F.H.J.M.).           It appears from the history of the Act as outlined above that the legislature deliberately rejected the idea of compelling the judge to obtain the views of the spouse who applied for the authorisation.           The Government would make the following observations with regard to point 4:           Insofar as it is relevant here, Article 72, paras. 1 and 3 of Regulation I lays down that a registrar should be present at hearings. The violation of this regulation is closely related to the failure of the District Court judge to hear the patient and, like this omission, was redressed in the course of the discharge procedure.           In view of the foregoing observations regarding points 1, 2, 3, and 4, the Government believe that Article 5 para. 1, preamble and sub-para. e of the Convention has not been violated.   They consider this part of the application admissible but ill-founded.   Violation of Article 5, para. 2 of the Convention           The applicant claims that Article 5, para. 2 of the Convention was violated because she was not informed of the authorisation for her provisional placement in a psychiatric hospital.           The Government offer no opinion as to whether or not Article 5 para. 2 of the Convention applies to persons admitted to a psychiatric hospital as a result of a court authorisation.   However, they do believe that the applicant should have been informed of the fact that an authorisation had been issued under the terms of the Mentally Ill Persons Act, so that she would be in a position to take proceedings by which the lawfulness of her detention could be decided by a court. The Government are therefore of the opinion that the failure to inform the applicant of the District Court judge's decision did constitute a violation of Article 5, para. 4 of the Convention. In the circumstances of this particular case, however, the applicant suffered no disadvantage as a result.   Violation of Article 5, para. 4 of the Convention           The applicant states that insofar as the procedure of Section 29 of the Mentally Ill Persons Act may be deemed to constitute a procedure within the meaning of Article 5 para. 4 of the Convention, the question of her discharge was not "decided speedily".   Her application of 6 December 1983 was first heard by the Court on 5 March 1984 and the final decision was reached only on 17 May 1984.           The Government assumes that the discharge procedure laid down in Section 29 of the Mentally Ill Persons Act may be regarded as a procedure within the meaning of Article 5 para. 4 of the Convention, but believes that when judging the length of time that elapses between the submission of the application for discharge and the hearing of this application in court which resulted in the discharge order,it should be borne in mind that from 26 January 1984 the applicant was no longer in hospital and that she began a trial discharge period on 31 January 1984.   From 31 January 1984 onwards she was therefore no longer deprived of her liberty.   The requirement that a decision be taken speedily, contained in Article 5 para. 4, thus only applied to the period from 6 December 1983 to 31 January 1984.   The question to be answered is whether Article 5 para. 4 was violated by the court's not having taken a decision on the application before 31 January 1984. The Government's answer is that it was not and it therefore holds that this part of the application is ill-founded.   As stated above, the Government do believe that Article 5 para. 4 was violated in that the applicant was not informed of the court's decision.   Violation of Article 6 para. 1 of the Convention           The applicant claims that Article 6 para. 1 of the Convention whereby everyone is entitled to a fair hearing was violated because the District Court judge did not hear her, did not obtain the views of her husband and did not comply with Article 72, paras. 1 and 3 of Regulation I.   The applicant also claims a violation of Article 6 para. 1 because she was not informed of the decision taken by the District Court judge with regard to her compulsory admission to hospital.           The Government take the view that the safeguards relating to the process of depriving persons of their liberty are laid down in Article 5 of the Convention so that it is in the light of this provision and not Article 6 para. 1 that this process should be assessed.   This may be seen, for example, from the fact that Article 6 para. 1 provides for judgments to be pronounced publicly, whereas in the case of a person deprived of his/her liberty under the Mentally Ill Persons Act a public pronouncement would be incompatible with personal privacy.           In view of the fact that Article 5 of the Convention contains specific safeguards for cases in which a person is deprived of his liberty, the Government consider that the part of the application which relates to the violation of Article 6 para. 1 is not admissible.   B.     The Applicant   Article 5 para. 1 sub-para. (e)   The obligation to hear on the basis of Section 17 of the Mentally Ill Persons Act.           The Government refers to the decision of the Supreme Court of 1 July 1983 (NJ 1984, No. 161).   However, this decision concerned a case in which the President of the Regional Court of Utrecht had considered the question whether or not to hear the person concerned in conformity with Section 17 of the Mentally Ill Persons Act, but decided that in his opinion, the submitted medical declaration showed that the condition of the person concerned rendered such a hearing meaningless. In Section 17 of the Mentally Ill Persons Act, the possibility is given not to hear someone in case it appears from a declaration by a psychiatrist that the condition of the patient renders this meaningless or inappropriate on medical grounds.   In the present case the District Court judge did not consider the question whether there was a reason to hear the applicant under Section 17 of the Mentally Ill Persons Act. Therefore, the District Court judge acted in contravention of Section 17 para. 3 of the Mentally Ill Persons Act. This also implies that there was a violation of Article 5 para. 1 sub-para. e of the Convention.           The decision of the Supreme Court quoted by the Government does not make it clear whether or not there would be a violation of Article 5 para. 1 sub-para. e of the Convention.   This, because the Supreme Court did quash the decision of the President because he had insufficiently motivated why he had not heard the person concerned.           Furthermore, the question arises whether proceedings concerning a request for release can remedy an omission such as the failure to hear the person concerned.   Because, if the applicant had been heard by the District Court judge, the latter could have rejected the request for her detention and the applicant would not have been deprived of her liberty.   This in fact happened in the course of a new procedure concerning her detention in the beginning of 1985. The President of the Regional Court of The Hague then, on 7 January 1985, decided not to prolong the applicant's detention.   After that, the applicant has never been involuntarily deprived of her liberty under the Mentally Ill Persons Act, contrary to previous practice when she was not heard.           Because the applicant was not heard, no judge could consider the question whether she had been lawfully deprived of her liberty since the date of the decision of the District Court judge, 18 November 1983.   This irrespective of the fact that subsequently on 5 March, 6 April and 7 May 1984, her request for release was considered.   At that time, she had already been unlawfully deprived of her liberty for several months because of the decision of the District Court judge. In addition, the applicant contests the Government's statement that her case was also dealt with on 26 March 1984.   Danger criterion           From the medical declaration which was partly the basis for the decision of the District Court judge it does not appear that on the basis of the criteria developed by the Supreme Court, there was such a danger flowing from the mental illness of the applicant, for either herself, others or for public safety, which would justify compulsory treatment.   Since the applicant was not heard, she could not submit any observations on this.   When she was heard a year later, by the President of the Regional Court, namely on 7 January 1985, in connection with new compulsory treatment, this hearing resulted in the President rejecting the request for prolongation of the detention, because of the absence of such a danger.   The factual situation in both cases was probably very similar.           Since there has been no subsequent compulsory detention, and the applicant was never heard when previous decisions on such detention were taken, the question arises whether the applicant was ever lawfully detained.   Article 5 para. 2           The applicant was only informed of the decision taken in her case after ten days.   This put her at a disadvantage since it prevented her from introducing an earlier request for release.   Article 5 para. 4   Leave on probation           The applicant secretly left the asylum on 26 January 1984, with the help of her husband.   She was only informed in the course of March 1984 that she had in fact obtained leave on probation on 31 January 1984.   A message to that effect was with her clothes which her husband was permitted to pick up for her at the asylum.   During that period the applicant could expect to be brought back to the asylum by the police, as happens in other cases.           Furthermore, leave on probation does not mean that the compulsory detention has ended, because leave on probation can be terminated at any given moment and, without the interference of a judicial authority, the person concerned can be detained again.   In 1980, the applicant was on leave on probation but the judicial decision on the basis of which she was detained was prolonged for one year, of which she was not informed.   Nor was she heard by a judicial authority. On the basis of that decision the applicant was at the time suddenly taken to a psychiatric asylum by the municipal health services without her knowing why and without a judicial authority examining her case. This also meant that her leave on probation had ended.           Also, in 1984, leave on probation did not guarantee that there would be no request for a prolongation of her compulsory detention. On 14 May 1984, the public prosecutor requested prolongation of the compulsory detention of the applicant in the psychiatric asylum, but this request was declared inadmissible by the Regional Court on 7 June 1984, because the applicant had been released by court order on 7 May 1984.   Speedily           The applicant considers that in order to answer the question whether the decision to release her was given speedily, the date of the leave on probation is irrelevant.   This because she was not aware of this leave on probation until the middle of March 1984 and furthermore because the provisional leave did not guarantee that she would not again be detained involuntarily and without the examination by a judicial authority during the period that the original judicial decision was still valid.           It took until 5 March 1984 before the request of 6 December 1983 was dealt with.   The Board of the asylum concerned had already rejected a request on 15 December 1983.   Subsequently, two sessions were necessary because the asylum did not provide the necessary data, the competent medical doctor did not appear at the hearing, and the public prosecutor was unable to provide the court with any information whatsoever.   During this period there was no examination of the lawfulness of the earlier decision of the District Court judge and the applicant could be brought back to the asylum. That this did not happen in fact, did not diminish her anxiety in this respect.   Only after 7 May 1984, when the Regional Court granted her request, just before the original period of detention ordered by the District Court judge was over, a decision was taken.   This can no longer be considered speedily.   THE LAW   1.       The applicant has complained that she was not detained in accordance with a procedure prescribed by law and she has invoked Article 5 para. 1 sub-para. e (Art. 5-1-e) of the Convention, which reads:-           "1.       Everyone has the right to liberty and security         of person.   No one shall be deprived of his liberty         save in the following cases and in accordance with         a procedure prescribed by law:         ...         (e)   the lawful detention of persons for the prevention              of the spreading of infectious diseases, of persons              of unsound mind, alcoholics or drug addicts or              vagrants "             The Government have accepted that this complaint is admissible.           The Commission finds that the complaint raises important issues of law and fact under the Convention which should be determined in an examination of the merits of the case.   No grounds for inadmissibility having been established, this part of the application must be declared admissible.   2.       The applicant has further complained that she was not informed of the reasons for her detention and she alleges a violation of Article 5 para. 2 (Art. 5-2) of the Convention in this respect, which provides           "....         2.       Everyone who is arrested shall be informed promptly,         in a language which he understands, of the reasons for his         arrest and of any charge against him. "           The Government have left open the question whether Article 5 para. 2 (Art. 5-2) of the Convention applies in the applicant's case.           The Commission finds that this part of the application also raises complex issues of law and fact and cannot be declared manifestly ill-founded.   No other ground for inadmissibility having been established, this complaint must thus be declared admissible.   3.       In addition, the applicant has complained that she did not have the possibility to have the lawfulness of her detention decided speedily by a court.   She has invoked Article 5 para. 4 (Art. 5-4) of the Convention in this respect which reads:           " ...         4.       Everyone who is deprived of his liberty by arrest         or detention shall be entitled to take proceedings by         which the lawfulness of his detention shall be decided         speedily by a court and his release ordered if the detention         is not lawful. "           The Government have stated that they consider this provision to have been violated by the fact that the applicant was not informed of the District Court judge's authorisation of her detention.           The Commission is of the opinion that this part of the application again raises difficult issues of law and fact which can only be resolved by a full examination of the merits.   No grounds for inadmissibility having been established, this complaint must also be declared admissible.   4.       Finally, the applicant has complained that she did not have a fair trial and she has invoked Article 6 para. 1 (Art. 6-1) of the Convention which reads, inter alia:           "In the determination of his civil rights and         obligations or of any criminal charge against         him, everyone is entitled to a fair and public         hearing within a reasonable time by an independent         and impartial tribunal established by law".           The Government have submitted that the safeguards relating to deprivation of liberty are laid down in Article 5 (Art. 5) of the Convention and that Article 6 (Art. 6) of the Convention is therefore not applicable to the present case.           The Commission, however, considers that this complaint also raises difficult issues of law and fact which can only be resolved by a full examination of the merits.   No grounds for inadmissibility having been established, this complaint must also be declared admissible.           For these reasons, the Commission           DECLARES THE APPLICATION ADMISSIBLE   Secretary to the Commission                President of the Commission      (H.C. KRÜGER)                                (C.A. NØRGAARD)