CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 janvier 1992

.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. 14422/88 by S.W. against the Netherlands     The European Commission of Human Rights (Second Chamber) sitting in private on 13 January 1992, the following members being present:   MM.S. TRECHSEL, President of the Second Chamber G. JÖRUNDSSON A. WEITZEL J.C. SOYER H.G. SCHERMERS                  H. DANELIUS Mrs.G.H. THUNE MM.F. MARTINEZ RUIZ L. LOUCAIDES   Mr.K. ROGGE, Secretary to the Second Chamber   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;   Having regard to the application introduced on 20 September 1988 by S.W. against the Netherlands and registered on 1 December 1988 under file No. 14422/88;   Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:     THE FACTS         The applicant is a Dutch citizen, born in 1954 and residing in Amsterdam.   When introducing the application, he was detained for treatment at the Provincial Hospital in Santpoort, the Netherlands. Before the Commission he is represented by Mr. G.P. Hamer, a lawyer practising in Amsterdam.         The facts of the case, as submitted by the parties, may be summarised as follows:         On 16 March 1988, the applicant's brother requested the District Court judge (Kantonrechter) in Amsterdam to issue a judicial authorisation (rechterlijke machtiging) to place the applicant in a mental hospital on the basis of Article 12 of the Mentally Ill Persons Act (Krankzinnigenwet).   This request was accompanied by, inter alia, a medical declaration of 16 March 1988 by a psychiatrist of the G.G. & G.D. (Municipal Medical and Health Authority) in Amsterdam and a letter dated 10 March 1988 by the applicant's own psychiatrist F.J., addressed to the G.G. & G.D., which reads, insofar as relevant:   <TRANSLATION>   "Patient is known by us since 1985 with a schizophrenic psychosis. (...)   Patient's situation worsens.   Patient causes his close environment trouble, in particular his downstairs neighbours.   It is a matter of a mostly manifest psychotic perception, in which a complex delusionary system with a paranoid colour is predominant.   Patient manifests himself again desperate the last months, yet sofar no suicidal actions.   In the meantime patient has become entirely isolated socially.   There have been regular reportings at the police office A.J. Ernststraat (local police officer O.), on a number of occasions the G.G. & G.D. made a house-call related to escalations.   Despite constant urging, patient refuses to undergo the, in his circumstances necessary (in first instance medicinal), treatment, although he is reasonably faithful and punctual concerning the appointments with the present author.   Questions:   I hereby request you to visit patient, in order to judge whether in his situation there are enough criteria to request a judicial authorisation for admission.   My most important argument for this is that within the foreseeable future patient's way of life, based on his paranoid psychosis, will lead to suicidal or homicidal action.   If necessary, patient's brother (...) is willing to support the authorisation request.   I am gladly willing to accept further consultation, patient is informed and agrees with my intention to arrange for a G.G.D. home visit concerning a second opinion and a possible request for a judicial authorisation.   I warn you beforehand for patient's skill to mask his paranoid thinking system "in emergencies", namely whenever he considers this wise."         On 18 March 1988, the District Court judge appointed a lawyer for the applicant and held a hearing at the District Court, where the G.G. & G.D. psychiatrist, the brother of the applicant and the applicant's lawyer were present.   After this hearing, the judge, accompanied by the psychiatrist and the lawyer, heard the applicant at home.   On this occasion also a former local police officer and the downstairs neighbour were heard.   Afterwards, the District Court judge adjourned the case until 23 March 1988.         On 23 March 1988 the District Court judge heard the lawyer of the applicant.   On 24 March the District Court judge contacted the applicant's psychiatrist F.J. by telephone on the basis of the latter's above letter of 10 March 1988.   The judge wrote a note on this telephone conversation which reads, insofar as relevant:   <TRANSLATION>   "Short report on a telephone conversation of Mr. S. with F.J. on 24 March 1988 concerning the state of health of W.   J., psychiatrist, (...) knows patient W. almost 2 years.   J. considers the situation serious, especially the homicidal remarks with respect to coach H.   The patient uses a psychosis as protection against interior and exterior fears.   He is unreliable in his remarks relating to problem solutions and the taking of medicines on a volountary basis.   He will not do the latter. Medication is very necessary because through this improvement can be expected if improvement is possible at all.   Possibly by way of intramural medication some result can be reached."   On the same day the District Court judge issued a judicial authorisation to place the applicant in a psychiatric hospital, without having further heard the applicant or his lawyer.   A copy of the judicial authorisation was sent to the applicant's lawyer on 25 March 1988.         On 28 March 1988 the police brought the applicant to the Provincial Hospital in Santpoort, without informing him of the reasons. Only after a considerable time the applicant learnt of the judicial authorisation.   He subsequently consulted a lawyer and requested the Board of the Hospital on 14 June 1988 to discharge him.         Following a negative recommendation by the Medical Director, the Hospital Board rejected the request and transmitted the request by letter of 28 June 1988 to the public prosecutor.   On 14 July 1988 the public prosecutor submitted the request to the Regional Court (Arrondissementsrechtbank) for a decision.   On 10 August 1988 the Regional Court should deal with the request.   However, on 9 August 1988 the judicial authorisation was lifted by the Hospital Board as a result of a recommendation for discharge by the responsible medical officer. The request to the Regional Court was consequently withdrawn. RELEVANT DOMESTIC LAW AND PRACTICE         Article 12 of the Mentally Ill Persons Act (hereinafter referred to as "the Act") enables, amongst others, a close relative of a mentally ill person to apply in writing to the District Court judge for an authorisation to have that person placed temporarily in a mental hospital in the interests of public safety or of the person concerned.         Article 16 of the Act requires that such an application be accompanied by a reasoned medical declaration by a qualified doctor who has specialised in mental and nervous disorders.   This declaration must be to the effect that the patient is mentally ill and that treatment in a mental hospital is necessary or desirable.         The judge will issue the requested order authorising provisional detention if the medical declaration, either on its own or in conjunction with the facts related or the documents submitted, adequately establishes that treatment in a psychiatric hospital is "necessary or desirable" (Article 17 of the Act).   The Supreme Court of the Netherlands has interpreted this expression as meaning that the patient must represent a danger to himself, to others or to the general public order, to such an extent that it is necessary or desirable that he be treated in a psychiatric clinic (judgment of 4 November 1983, Nederlandse Jurisprudentie (NJ) 1984, no. 162).         The judge is obliged to hear the person whose confinement is sought unless he concludes from the medical declaration that this would be devoid of purpose or medically inadvisable (Article 17 of the Act).         The judge must, "so far as possible", seek information from, amongst others, the person who made the application for confinement (Article 17 of the Act).         The confinement order may not be appealed against and is not served upon the person concerned (Article 17 of the Act).   Its renewal must be sought within six months of the day on which it was made (Article 22 of the Act).         The Dutch Supreme Court has held that, in view of the importance of having up-to-date information as a basis for a confinement decision, the judge may be justified in using information obtained by telephone. He must, however, communicate any such information to the person concerned or his counsel in order to enable them to comment on it.   The Supreme Court has quashed a number of decisions on account of a failure to comply with this requirement (cf. the judgments of 4 January, 10 May and 7 June 1985, NJ, nos. 336, 665 and 718).         It appears from a judgment of 1 December 1989 (NJ 1990, no. 438) that the case-law on the subject may be summarised as follows:   1. if a judge obtains information by telephone, he must ensure that it is taken down in writing; 2. (a) in principle, the judge must not make use of such information unless he has advised the person concerned or his counsel of its substance and has given them sufficient opportunity to comment on it;    (b) this may also be done by telephone; 3. the decision or the documents of the court proceedings must show that the requirements referred to under 2 (a) have been met; 4. only under special circumstances may the judge decide not to observe the rule referred to unde 2(a); 5. in such cases the reasons must be stated so as to enable the Supreme Court to assess whether rule 4 has been complied with; 6. if a statement taken by telephone contains information concerning points that are essential for the decision and the judge has not unequivocally discounted that statement in his decision, it must be assumed that the judge made use of that information when reaching his decision.   Article 19 of the Act enables a patient at any time to request the Board of the mental hospital to discharge him.   The Board must immediately consult the medical director of the hospital.   In case the medical director's opinion is unfavourable, the Board has to transmit the request, together with the opinion, to the public prosecutor.   The public prosecutor forwards the request to the Regional Court for decision, unless he is of the opinion that the request for discharge is evidently ill-founded, or when an earlier request has been rejected by the Regional Court pending the validity of the last judicial authorisation and the circumstances have not changed since this rejection.     COMPLAINTS   1.     The applicant complains that the District Court judge issued the judicial authorisation after having contacted the applicant's psychiatrist and without having given the applicant or his lawyer an opportunity to learn of or to contest the information thus obtained. The applicant submits that the medical declaration of 16 March 1988 stated that treatment in a psychiatric hospital was necessary or advisable.   According to the applicant it was not possible for the District Court judge to conclude therefrom that treatment was necessary.   The applicant furthermore complains that the proceedings concerning the issue of the judicial authorisation took place behind closed doors; that he was not informed in time of his right to have the assistance of a lawyer; that in the meantime a lawyer had already been appointed; that he had insufficient time to prepare his case; that he was not informed that his brother was heard by the District Court judge and that he had no opportunity to question his brother; and that his request for discharge from the hospital of 14 June 1988 was only to be considered by the Regional Court on 10 August 1988.   The applicant invokes Article 5 paras. 1 and 4 and Article 6 para. 1 of the Convention.   2.     The applicant also complains that he was not promptly informed of the judicial authorisation when the police brought him to the psychiatric hospital.   He invokes Article 6 para. 1 in conjunction with Article 5 para. 2 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 20 September 1988 and registered on 1 December 1988.         On 25 February 1991 the Commission decided to communicate the application to the respondent Government and invite them to submit written observations on the admissibility and merits of the application.         On 9 April 1991 the Commission referred the application to the Second Chamber.         The Government submitted their observations on 17 May 1991 and the applicant's observations in reply were submitted on 11 June 1991.     THE LAW   1.     The applicant complains that the District Court judge issued the judicial authorisation after having contacted the applicant's psychiatrist and without having given the applicant or his lawyer an opportunity to learn of or to contest the information thus obtained. The applicant submits that the medical declaration of 16 March 1988 stated that treatment in a psychiatric hospital was necessary or advisable.   According to the applicant it was not possible for the District Court judge to conclude therefrom that treatment was necessary.   The applicant furthermore complains that the proceedings concerning the issue of the judicial authorisation took place behind closed doors; that he was not informed in time of his right to have the assistance of a lawyer; that in the meantime a lawyer had already been appointed; that he had insufficient time to prepare his case; that he was not informed that his brother was heard by the District Court judge and that he had no opportunity to question his brother; and that this request for discharge from the hospital of 14 June 1988 was only to be considered by the Regional Court on 10 August 1988.   The applicant invokes Article 5 paras. 1 and 4 and Article 6 para. 1 (Art. 5-1, 5-4, 6-1) of the Convention.   The Commission has examined the applicant's complaints under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention which, insofar as relevant, provide:   "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, (...); 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 accept that, if the information the District Court judge obtained from the applicant's psychiatrist in their telephone conversation of 24 March 1988 was relevant for the District Court judge's decision on the judicial authorisation, the procedure was in contravention of Dutch law.   The Government, however, consider that this was not the case as no new facts emerged during this telephone conversation.   The Government also submit that the applicant failed to exhaust domestic remedies in respect of his complaints under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention, as his request for discharge was based on medical grounds and as he could have instituted summary proceedings (kort geding) before the President of a Regional Court.   The Commission notes that summary proceedings before the President of a Regional Court are in Dutch law and practice an important remedy against various illegal acts (cf. Eur. Court H.R., Keus judgment of 25 October 1990, Series A vol. 185-C, para. 16). However in the Government's brief remarks on such proceedings it has not been demonstrated that summary proceedings would have constituted an effective remedy in the present case. It follows that this part of the application cannot be rejected under Article 27 para. 3 (Art. 27-3) in conjunction with Article 26 (Art. 26) of the Convention for non- exhaustion of domestic remedies.   The Commission further considers that this complaint raises issues of fact and law, whose determination should depend on an examination of the merits. It is therefore not inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.The applicant further complains that he was not promptly informed of the judicial authorisation when the police brought him to the psychiatric hospital.   He invokes Article 5 para. 2 and Article 6 (Art. 5-2, 6) of the Convention.   The Commission has examined this complaint under Article 5 para. 2 (Art. 5-2) of the Convention which, insofar as relevant, provides:   "Everyone who is arrested shall be informed promptly, (...) of the reasons for his arrest (...)."   The Government state that the judicial authorisation was issued on 24 March 1988 and that, according to an annotation on the authorisation, a copy was sent to the applicant's lawyer on 25 March 1988.   The applicant considers that he should have been informed in person, which has not been done.   The Commission considers that the present complaint is so closely connected with the complaint under 1. that it must also be declared admissible.           For these reasons, the Commission, by a majority           DECLARES THE APPLICATION ADMISSIBLE       without prejudging the merits of the case.         Secretary to the Second Chamber         President of the Second Chamber                  (K. ROGGE)                                 (S. TRECHSEL)