CEDH · CASELAW;REPORTS;ENG — 6 décembre 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 }  Application No. 12889/87   Robbert SMIET   against   the NETHERLANDS   REPORT OF THE COMMISSION   (adopted on 6 December 1990)                           TABLE OF CONTENTS                                                              PAGE   I.       INTRODUCTION         (paras. 1-12) ....................................     1-2           A. The application            (paras. 2-3) ...................................    1           B. The proceedings            (paras. 4-7) ...................................    1           C. The present Report            (paras. 8-12) ..................................    2   II.      ESTABLISHMENT OF THE FACTS         (paras. 13-30) ....................................    3-5           A. The particular circumstances of the case            (paras. 13-20) .................................    3           B. Relevant domestic law and practice            (paras. 21-30) .................................    4-5   III.     OPINION OF THE COMMISSION         (paras. 31-60) ....................................    6-10           A. Complaints declared admissible            (para. 31) .....................................    6           B. Points at issue            (para. 32) .....................................    6           C. Article 5 para. 1 of the Convention            (paras. 33-43) .................................    6-8              Conclusion            (para. 43) .....................................    8           D. Article 5 para. 4 of the Convention            (paras. 44-47) .................................    8-9              Conclusion            (para. 47) .....................................    9           E. Article 5 para. 5 of the Convention            (paras. 48-53) .................................    9              Conclusion            (para. 53) .....................................    9           F. Article 6 para. 1 of the Convention            (paras. 54-58) .................................    9-10              Conclusion            (para. 58) .....................................    10           G. Recapitulation            (para. 59) .....................................    10   DISSENTING OPINION of Mrs.   G.H. THUNE and Sir Basil Hall .......................................     11   APPENDIX I      :    HISTORY OF THE PROCEEDINGS .............    12   APPENDIX II     :    DECISION ON THE ADMISSIBILITY ..........    13-17   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 is a Dutch citizen, born in 1951 and currently detained in a psychiatric hospital in Eindhoven, the Netherlands.   In the proceedings before the Commission he is represented by Ms.   G.E.M. Later, a lawyer practising in The Hague.           The application is directed against the Netherlands whose Government are represented by their Agent, Ms.   Dorothea S. van Heukelom, of the Netherlands Ministry of Foreign Affairs.   3.       The applicant complains under Article 5 para. 1 of the Convention that the prolongation of his detention in a psychiatric hospital was not decided within the time-limit prescribed by Dutch law; and under Article 5 para. 4 of the Convention that the Supreme Court did not examine the legality of his detention.   He further claims that he is entitled to compensation under Article 5 para. 5 of the Convention.   Under Article 6 para. 1 of the Convention the applicant finally complains that he did not have a fair hearing before the Supreme Court.   B.       The proceedings   4.       The application was introduced on 24 April 1987 and registered on 2 May 1987.   5.       On 13 October 1987 the Commission decided to give notice of the application to the respondent Government and to invite them to submit observations in writing on the admissibility and merits of the application.           The Government's observations were submitted on 8 January 1988.   After an extension of the time-limit, the applicant submitted his reply on 30 March 1988.   6.       On 10 July 1989 the Commission declared the application admissible.   The text of this decision was communicated on 25 August 1989 to the parties who were invited to submit any additional observations or further evidence which they wished to put before the Commission.   7.       After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (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 on which such a settlement can be effected.   C.       The present Report   8.       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                   J. A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   M.P. PELLONPÄÄ   9.       The text of this Report was adopted on 6 December 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   10.      The purpose of the Report, pursuant to Article 31 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.   11.      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.   12.      The full text of the parties' submissions and the documents concerning the case are held in the archives of the Commission and are available to the Committee of Ministers if required.   II. ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the case   13.       On 18 August 1986 the applicant was detained by order of the Burgomaster of Eindhoven, issued on the basis of Section 35b of the Mentally Ill Persons Act (Krankzinnigenwet; see below Relevant domestic law and practice), and subsequently, he was taken to a psychiatric hospital.   The order was based on a certificate of a psychiatrist drawn up on 18 August, in which it was stated that the applicant was paranoid and a danger to himself, to others or to public order.   14.       On 20 August 1986 the Public Prosecutor of 's-Hertogenbosch made a request to the President of the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch, that the applicant's detention (inbewaringstelling) be prolonged.   15.       On 21 August 1986 the Regional Court received the Public Prosecutor's request and the relevant documents.   16.       On 26 August 1986 the Acting President of the Regional Court heard the applicant, his psychiatrist Dr.   Spruyt and another person.    The hearing took place in the presence of the applicant's lawyer.   Dr.   Spruyt stated, inter alia, that the applicant had threatened civil servants with a knife, that he sometimes was psychotic, that the psychosis could be controlled by medication, but that as a result of drugs he could become a paranoid schizophrenic. The applicant's lawyer argued that the time-limit within which the President should decide on the Public Prosecutor's request had expired and that the request should therefore be rejected.   The applicant pointed out that he had agreed to stay in a psychiatric hospital voluntarily until he had found accommodation.   17.       On 27 August 1986 the Acting President decided that the applicant's detention should continue.   18.       On 29 August 1986 the applicant filed an appeal with the Supreme Court (Hoge Raad).   He complained that, even counting from the day on which the Regional Court had received the Public Prosecutor's request, the Acting President had not observed the time-limit, as required under the Mentally Ill Persons Act.   Furthermore, he claimed that there were not sufficient reasons to conclude that the detention was necessary in order to avert immediate danger to himself or other persons, since these reasons were mainly based on events in the past. Moreover, detention was not necessary because he had agreed to stay in the hospital voluntarily.   The applicant also requested the Supreme Court to decide on his appeal within three weeks (see below Relevant domestic law and practice).   19.       The Government submitted that on 15 September 1986 the President of the Regional Court had authorised the applicant's placement in a psychiatric hospital.   The applicant submitted that it may not be concluded from this that the authorisation took effect on 15 September 1986.   20.      On 14 November 1986 the Supreme Court declared the appeal inadmissible on the ground that the maximum period of three weeks had already passed and that the appeal was no longer of any interest to the applicant.   B.       Relevant domestic law and practice   21.      The detention of persons of unsound mind in the Netherlands is governed by the "Act of 27 April 1884, 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).   22.      The relevant provisions in respect of the present application are Sections 35b-35j.   23.      In urgent cases, where a person is seriously suspected to be a danger to himself, to others or to public order because of mental illness, the Burgomaster of the municipality where this person resides, has the power to order the compulsory admission (inbewaringstelling) of this person to a psychiatric hospital (Section 35b).   24.      The Burgomaster is obliged to seek the prior opinion of a psychiatrist or, should that not be possible, another medical practitioner (Section 35c).   Once he has issued an order to detain, he must immediately inform the Public Prosecutor and send him the medical opinions on which the order was based (Section 35e).   The Mentally Ill Persons Act does not lay down a specific time-limit for the Burgomaster to transmit these documents to the Public Prosecutor's Office.   The Supreme Court has stated that, if the Burgomaster delays the forwarding of these documents, this does not eventually preclude the President of the Regional Court from handing down a decision on the Public Prosecutor's application for a continuation of the detention (see decision of 24 April 1987, N.J. [Nederlandse Jurisprudentie] 1987 Nr. 629 and below para. 25).   25.      The Public Prosecutor is required to transmit the medical opinions on which the order was based not later than the following day which is not a Saturday, Sunday or a public holiday, to the President of the Regional Court with, where appropriate, an application for a continuation of the detention (Section 35i para. 1).   26.      Section 35i para. 1 of the Mentally Ill Persons Act further states that the President shall decide within three days whether the detention shall continue.   Before taking this decision the President shall hear the detained person, unless this is meaningless or medically counterindicated (Section 35i para. 3).   27.      The Supreme Court has had the opportunity to interpret the requirements of this time-limit of three days in a case where it had not been complied with by the President of a Regional Court.   The President had given as a reason herefor the detained person's transfer to another region where he had been heard by another judge and that this transfer had required additional time.   However, the Supreme Court did not accept this as an excuse for not observing the time-limit and pointed out that the latter was of special importance as the maximum period of detention was to be calculated from the date of the President's decision (see decision of 23 January 1987, N.J. 1987 Nr. 409).   28.      A more recent decision of the Supreme Court concerned a case in which a judge had exceeded the three days' time-limit by one day. The Supreme Court considered that it was no excuse that the President of the Court had found on the last day that he should hear more persons before taking his decision (see decision of 8 April 1988, N.J. 1988 Nr. 684).   29.      Under Section 35j of the Mentally Ill Persons Act detention (inbewaringstelling) may last up to a maximum of three weeks after the decision of the President of the Regional Court.   According to its recent practice the Supreme Court declares an appeal against a decision to prolong the detention inadmissible, if the period of three weeks has already passed by the time the Supreme Court takes its decision, since the applicant's interest in his appeal is then considered to have been lost.   30.      The President may renew detention for a second period of the same length if, before the expiry of the first period, an application for judicial authorisation for confinement (rechterlijke machtiging, Sections 12 and 13) has been made (Section 35 j).   III.    OPINION OF THE COMMISSION   A.       Complaints declared admissible   31.      The following complaints were declared admissible:   -        that the Acting President of the Regional Court had not observed the time-limit prescribed by the Mentally Ill Persons Act when deciding on the request that the applicant's detention be prolonged;   -        that the Supreme Court did not decide on the lawfulness of the applicant's detention;   -        that in respect of these alleged violations the applicant had not been granted an enforceable right to compensation;   -        that the Supreme Court did not examine the applicant's complaints about the Acting President's decision.   B.       Points at issue   32.      Accordingly, the issues to be determined are:   -        whether the applicant was detained lawfully and in accordance with a procedure prescribed by law within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention;   -        whether the Supreme Court failed to examine the legality of his detention contrary to Article 5 para. 4 (Art. 5-4) of the Convention;   -        whether in respect of the alleged violations of Article 5 paras. 1 and 4 (Art. 5-1, 5-4) the applicant was entitled to compensation under Article 5 para. 5 (Art. 5-5) of the Convention;   -        whether Article 6 para. 1 (Art. 6-1) of the Convention applied to the proceedings before the Supreme Court and, if so, whether the applicant had a fair hearing in those proceedings.   C.       Article 5 para. 1 (Art. 5-1) of the Convention   33.      The applicant alleges a breach of Article 5 para. 1 (Art. 5-1) of the Convention which provides, insofar as relevant, as follows:   "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 of unsound mind, ...;   ..."   34.      The applicant submits that he was not detained in accordance with a procedure prescribed by law, since the Acting President of the Regional Court did not observe the time-limit prescribed by the Mentally Ill Persons Act when deciding on the request that his detention be prolonged.   The applicant also submits that his mental state did not represent such a danger as to make his detention necessary or desirable, and that the detention was not necessary, since he had agreed to stay voluntarily in the psychiatric hospital.   35.      The respondent Government accept that the time-limit embodied in the Mentally Ill Persons Act had been exceeded by one day. However, they point to a decision of the Supreme Court from which they conclude that exceeding a time-limit does not make the subsequent detention illegal (decision of 24 April 1987; see above para. 24). Furthermore, the Government submit that it was the opinion of the Acting President of the Regional Court that the applicant's detention was necessary and that it was correct for the President to assume that the applicant was not willing to stay voluntarily in the psychiatric hospital.   36.      The Commission recalls that, on the question whether detention is "lawful", including whether it complies with "a procedure prescribed by law", the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof.   However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 (Art. 5), namely to protect individuals from arbitrariness (see Eur. Court H.R., Wassink judgment of 27 September 1990, Series A no. 185-A, para. 24).   37.      In the present case the Commission notes that the Regional Court received the Public Prosecutor's request and documents concerning the applicant's detention on 21 August 1986.   According to Section 35i para. 1 of the Mentally Ill Persons Act, it was then the task of the President of the Court to decide within three days whether the detention should continue.   However, in view of the intervening weekend (23-24 August), this time-limit was prolonged by two days, i.e. until 26 August 1986.   It is not in dispute that, when on 27 August 1986 the Acting President decided to prolong the applicant's detention, the time-limit had expired.   38.      Before the Commission, however, the Government have argued that according to a judgment of the Supreme Court (see above para. 24), non-observance of this time-limit was not unlawful and did not make the subsequent detention illegal.   39.      The Commission considers that, as the applicant has also pointed out, the judgment of the Supreme Court referred to concerned non-observance of a different time-limit, namely that within which the Burgomaster shall present the documents about detention to the Public Prosecutor.   40.      On the other hand, the Commission notes two other decisions of the Supreme Court of 23 January 1987 and 8 April 1988 which concerned the time-limit under Section 35i para. 1 now at issue (N.J. 1987 Nr. 409 and 1988 Nr. 684; see above paras. 27 and 28).   In these decisions, the Supreme Court has not been prepared to accept exceptions to the time-limit under Section 35i para. 1.   41.      It follows that during the period from 26 August 1986, when the time-limit provided in Section 35i para. 1 of the Mentally Ill Persons Act expired, until 15 September 1986, when the Regional Court authorised the applicant's detention, he was not deprived of his liberty "in accordance with a procedure prescribed by law" within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention.   42.      As to the applicant's submissions that his mental state did not make his detention necessary or desirable, and that the detention was also not necessary because he had agreed to stay at the hospital, the Commission finds that the Acting President of the Regional Court, when prolonging the applicant's detention on 27 August 1986, based himself on medical evidence, in particular Dr.   Spruyt's statement, on the basis of which he could reasonably conclude that the applicant was a person of unsound mind whose detention was at that time required. It follows that Article 5 para. 1 (Art. 5-1) has not been violated in this regard.   Conclusion   43.      The Commission concludes, by a unanimous vote, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.     D.       Article 5 para. 4 (Art. 5-4) of the Convention   44.      Article 5 para. 4 (Art. 5-4) of the Convention states:   "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."   45.      The applicant claims that, contrary to Article 5 para. 4 (Art. 5-4) of the Convention, the Supreme Court did not examine the legality of his detention.   The Government submit that Article 5 para. 4 (Art. 5-4) of the Convention does not grant a right to appeal.   46.      The Commission recalls that the decision of 27 August 1986 to detain the applicant was taken by a court, namely the Acting President of the Regional Court.   Where the original decision to detain a person is taken by a "court" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention, this satisfies at the initial stage of the detention the supervision required by that provision.   In this case the supervision required by Article 5 para. 4 (Art. 5-4) is incorporated in the decision. However, in order to constitute a "court" an authority must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty (see Eur. Court H.R., De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 40, para. 76; Bezicheri v.   Italy, Comm.   Report 10.3.88, Eur.   Court H.R., Series A no. 164, p. 16, para. 34).   In the present case the Commission is satisfied that the decision to detain the applicant was taken by a court offering the said guarantees of procedure.   Consequently, the applicant did not have, under Article 5 para. 4 (Art. 5-4), a right to a further court review of the lawfulness of his detention at that stage. Conclusion   47.      The Commission concludes, by a unanimous vote, that there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.   E.       Article 5 para. 5 (Art. 5-5) of the Convention   48.      Article 5 para. 5 (Art. 5-5) of the Convention states:   "5.       Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."   49.      The applicant referring to his allegations under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) submits that he is entitled to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.   50.      The Government contend that the applicant's interests were not affected, as required by Article 5 para. 5 (Art. 5-5), since on 15 September 1986 the President of the Regional Court authorised his placement in a psychiatric hospital, i.e. one day before the period of detention under the emergency procedure would have ended. Accordingly, the total length of detention at issue had not exceeded the length of time permitted under the Mentally Ill Persons Act.   51.      The Commission considers that Article 1401 of the Dutch Civil Code (Burgerlijk Wetboek) offers in cases such as the present one, concerning the detention of persons of unsound mind, the possibility to apply for compensation in respect of a deprivation of liberty; Article 1401 offers an enforcable right to compensation and thus satisfies the requirements of Article 5 para. 5 (Art. 5-5) of the Convention (see Eur.   Court H.R., Wassink judgment, ibid).   52.      The applicant has not shown that he introduced such an action according to Article 1401 of the Dutch Civil Code.   Conclusion   53.      The Commission concludes, by a unanimous vote, that there has been no violation of Article 5 para. 5 (Art. 5-5) of the Convention.   F.       Article 6 para. 1 (Art. 6-1) of the Convention   54.      Article 6 para. 1 (Art. 6-1) of the Convention states, insofar as it is relevant:   "1.    In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law..."   55.      The applicant claims that, contrary to the requirements of a fair hearing guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention, the Supreme Court did not deal with his complaints about the Acting President's decision.   The Government contend that the applicant's detention had no effect on his capacity to administer his property and that Article 6 para. 1 (Art. 6-1) of the Convention has therefore not been violated.   56.      The Commission considers that proceedings regarding a person's detention in a psychiatric hospital do not as such concern the determination of that person's "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) (Eur.   Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8, p. 43, para. 23; No. 9661/82, Dec. 14.7.83, D.R. 34 p. 127).   This would only be the case if, as in the Winterwerp case (Eur.   Court H.R., judgment of 24 October 1979, Series A no. 33, p. 28, para. 73), it was found that the detention had indirect effects on the detained person's right to administer his property or to carry out legal transactions.   The Commission finds no indication of such an effect in the present case.   57.      It follows that there has been no violation of the applicant's right to a fair hearing in the determination of his civil rights and obligations.   Conclusion   58.      The Commission concludes, by 16 votes to 2, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.     G.       Recapitulation   59.      The Commission concludes:   -        by a unanimous vote, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 43);   -        by a unanimous vote, that there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 47);   -        by a unanimous vote, that there has been no violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 53);   -        by 16 votes to 2, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention (para. 58).       Secretary to the Commission               President of the Commission           (H.C. Krüger)                              (C.A. Nørgaard)                   DISSENTING OPINION of Mrs.   G.H. THUNE and Basil HALL           While noting the past case-law of the Court and Commission, we find ourselves unable to agree with the opinion of the majority of the Commission (para. 56) that proceedings regarding a person's detention in a psychiatric hospital do not as such concern the determination of that person's civil rights.           The right to protection against unlawful interference with one's person and the right to protection against unlawful interference with one's property are fundamental rights in the laws of civilised states which can be invoked against acts both of private individuals and of state authorities.   Many of the delictual systems of member states derive from these two basic rights, which must in our view be classified as civil rights for the purposes of Article 6 para. 1 of the Convention.   Indeed the Court has recognised in a number of its judgments that questions over interference by state authorities with property rights involve the determination of civil rights.   We cannot see that questions over the legality of interference with the person fall into a different category.           Indeed a determination of a dispute over the legality of a restriction in a person's liberty which is imposed by another private person or private institution would clearly be a determination of a civil right.   So too, in our opinion, must be the determination of a dispute over the legality of such a restriction which is imposed by state authorities.           Accordingly, the failure of the Supreme Court to pronounce on the legality of the deprivation of the applicant's liberty constituted a violation of Article 6 para. 1 of the Convention.                                   APPENDIX I                           HISTORY OF PROCEEDINGS   Date                               Item ______________________________________________________________________   24 April 1987                      Introduction of the application   2 May 1987                         Registration of the application   Examination of admissibility   13 October 1987                    Commission's decision to invite                                   the Government to submit                                   observations on the admissibility                                   and merits of the application   8 January 1988                     Government's observations   30 March 1988                      Applicant's observations in reply   10 July 1989                       Commission's decision to declare                                   the application admissible   Examination of the merits   9 December 1989,                   Commission's consideration of 12 May and                         the state of proceedings 6 October 1990   6 December 1990                    Commission's deliberations on the                                   merits, final vote and adoption                                   of the Report