CEDH · CASELAW;REPORTS;ENG — 14 juillet 1988

.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 }    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:           <Dutch>   "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 <.....>."   <English translation>   "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 <in a mental hospital> has been requested, unless in his opinion it appears from the accompanying statement by a psychiatrist that, in view of the patient's condition, <a hearing> 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:   <Dutch>   "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."   <English translation>   "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 dec