CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1990

.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. 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)