CEDH · CASELAW;REPORTS;ENG — 2 septembre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                               SECOND CHAMBER                          Application No. 17741/91                                  Eddy BISH                                   against                               the NETHERLANDS                          REPORT OF THE COMMISSION                        (adopted on 2 September 1992)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-15) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-10). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 11-15) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 16-29). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 16-20) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (paras. 21-29) . . . . . . . . . . . . . . . . . . . . . 3   III.   OPINION OF THE COMMISSION       (paras.   30-48) . . . . . . . . . . . . . . . . . . . . . . . 7         A.    Complaints declared admissible (para. 30). . . . . . . . 7         B.    Points at issue (para. 31) . . . . . . . . . . . . . . . 7         C.    Article 5 para. 1 of the Convention            (paras. 32-38) . . . . . . . . . . . . . . . . . . . . . 7         D.    Article 5 para. 4 of the Convention            (paras. 39-47) . . . . . . . . . . . . . . . . . . . . . 8         E.    Recapitulation            (para. 48) . . . . . . . . . . . . . . . . . . . . . . .10   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . .11   APPENDIX II   :   DECISION ON THE ADMISSIBILITY . . . . . . . . . . .12   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 1948 and resident at 's-Hertogenbosch, the Netherlands.   Before the Commission the applicant is represented by Mrs. G.E.M. Later, a lawyer practising in The Hague.   3      The application is directed against the Netherlands.   The respondent Government are represented by their Agent, Mr. Karel de Vey Mestdagh of the Netherlands Ministry of Foreign Affairs.   4      The case concerns the applicant's committal to a mental hospital on the basis of a judicial order. It raises issues under Article 5 paras. 1 and 4 of the Convention.   B.     The proceedings   5      The application was introduced on 15 January 1991 and registered on 31 January 1991.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 8 April 1991.   It decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   6      The Government's observations were submitted by letter of 28 June 1991, to which the applicant replied by letters of 7 August and 6 September 1991.   7      On 8 January 1992 the Commission declared the application partly admissible and partly inadmissible.   8      On 9 January 1992 the parties were offered the possibility to submit additional observations on the application.   No such observations were received.   9      After having consulted the parties the Commission decided on 30 March 1992 to refer the application to the Second Chamber of the Commission.   10     After having declared the case in part 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.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   11    The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, 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                  L. LOUCAIDES                  J.-C. GEUS   12     The text of this Report was adopted by the Commission (Second Chamber) on 2 September 1992 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13     The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is:         a)    to establish the facts, and         b)    to state an opinion as to whether the facts            found disclose a breach by the State concerned            of its obligations under the Convention.   14     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.   15     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.     The particular circumstances of the case   16     On 25 April 1990 the Burgomaster of Boxtel issued an order for the applicant's provisional detention (inbewaringstelling) in a mental hospital.   On the basis of this order he was detained in the psychiatric hospital Reinier van Arkel at 's-Hertogenbosch.   17     On 2 May 1990 the public prosecutor requested the continuation of his provisional detention, and on 3 May 1990, the President of the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch, after having heard the applicant, his lawyer and the treating psychiatrist, ordered that he should continue to be detained.   18    On 16 May 1990 the applicant's mother addressed to the District Court judge (kantonrechter) of 's-Hertogenbosch a request for a judicial order (rechterlijke machtiging) to have him detained in a mental hospital.   A medical certificate dated 14 May 1990 was annexed to it.   On 17 May 1990 the District Court judge heard the applicant and the treating psychiatrist in regard to the request for a judicial order.   The applicant declared that he preferred not to stay in the mental hospital.   However, on the same day the judge issued an order for the applicant's detention in a mental hospital.   19     At the hearing before the District Court judge, the applicant was not assisted by a lawyer.   He states that he remembers having asked for his lawyer, but this is not mentioned in the minutes of the hearing. Nor do these minutes indicate that he was asked whether he wished to have a lawyer.   The applicant further states that he was not informed of the hearing in advance, which made it impossible for him to prepare himself.   Moreover, he states that he had no access to the documents in the case-file and was not informed of their contents.   At least there is no indication in the minutes of any such information having been provided.   20     In his appeal in cassation (cassatieberoep) to the Supreme Court (Hoge Raad) the applicant invoked these deficiencies in the procedure. He alleged that the procedure was not consistent with the principles developed in the Supreme Court's case-law and referred in particular to a judgment of 19 January 1990 (N.J. 1990, Nr. 442).   However, on 12 October 1990 the Supreme Court declared the appeal inadmissible, the reason being that an order of this kind issued by a District Court judge could only be challenged on specific and limited grounds and the grounds invoked by the applicant were not admissible.   B.     Relevant domestic law   21     The confinement of persons of unsound mind in the Netherlands is governed by the Act of 27 April 1884 on State Supervision of Mentally Ill Persons, commonly known as the Mentally Ill Persons Act (Krankzinnigenwet).   22     Article 12 of the Mentally Ill Persons Act enables, amongst others, a close relative of a mentally ill person to apply in writing to the local District Court judge for a judicial order to have that person placed temporarily in a mental hospital in the interests of public safety or of the person concerned.   23     According to Article 17 of the Act the judge is as a rule obliged to hear the person whose confinement is sought before he decides on the request for committal to a mental hospital.   The judge can also, either at the request of the person concerned or ex officio, appoint a lawyer to assist that person.   In its judgment of 19 January 1990 (N.J. 1990, Nr. 442) the Supreme Court held:   <Translation>         "Before deciding on a request or an application for an       order committing a person to a mental institution pursuant       to Article 17, subsection 3 of the Mentally Ill Persons       Act, the judge who - apart from exceptional cases - is       obliged to hear the individual involved, may, on the basis       of the last part of the said provision, appoint counsel to       assist the patient, either at the request of the latter or       ex officio.         In view of the significance that must be attached to the       hearing of the person concerned as the means by which the       latter may defend himself against a request pursuant to       Article 12 (...) and in view of the vulnerable position       such a person frequently will find himself in without the       assistance of counsel, the correct exercise of       aforementioned competence entails that the judge, should he       not appoint a lawyer himself, must inquire whether the       person concerned wishes to have the assistance of counsel,       even though he may not have expressly requested such.       Should the person concerned subsequently be heard without       the assistance of counsel, the case documents must indicate       the results of the aforementioned inquiry and, in cases       where a request by the person concerned for representation       is dismissed, must contain an account of the weighty       circumstances which justified not granting the request."   24     In its judgment of 23 November 1990 (N.J. 1991, Nr. 91) the Supreme Court considered:   <Translation>         "First and foremost, it must be stated that proceedings       pursuant to the Mentally Ill Persons Act should be subject       to the principle that the court may only make a decision on       the basis of documents to which the person involved has had       access and on which he has had the opportunity to comment.       If no opportunity to peruse the documents prior to the       hearing has been given, the hearing can be used to give the       person concerned the opportunity to study the documents and       comment upon them.   Unless the nature and volume of the       documents prevent study and comments during the hearing, it       may be assumed that sufficient opportunity therefor has       been provided without this being expressly stated in the       court order or official report."   25     According to Article 17 of the Mentally Ill Persons Act no appeal (hoger beroep) is possible against the District Court judge's decision on a request for a judicial order.   It appears, however, from the Supreme Court's case-law that an appeal may be lodged when such fundamental principles of procedural law have been disregarded that fair and impartial treatment of the case was not guaranteed (cf. Hoge Raad, 4 March 1988, N.J. 1989, Nr. 4).   26     Moreover, an appeal in cassation (cassatieberoep) against the District Court judge's decision on the basis of the Mentally Ill Persons Act may be lodged with the Supreme Court, but only on the specific grounds mentioned in Article 100 of the Judicial Organisation Act (Wet op de Rechterlijke Organisatie) (cf. Hoge Raad, 18 October 1991, N.J. 1992, Nr. 1).   27     Article 100 of the Judicial Organisation Act reads as follows:   <Translation>         "1. Against judgments by District Court judges in civil       cases, apart from the case of an appeal in cassation on       points of law of major legal interest, an appeal in       cassation is only admitted:         1°. because of lack of reasons;         2°. because judgment has not been pronounced in public;         3°. because of lack of jurisdiction;         4°. because jurisdiction has been exceeded.         2. Against judicial orders in civil cases, apart from the       case of an appeal in cassation on points of law of major       legal interest, an appeal in cassation is only admitted on       the grounds mentioned in para. 1 under 1°, 3° and 4°."   <Dutch>         "1. Tegen vonnissen van kantonrechters in burgerlijke zaken       is beroep in cassatie, afgezien van het geval van cassatie       "in het belang der wet", slechts toegelaten:         1°. wegens het niet inhouden van de gronden waarop zij rusten;         2°. wegens het niet met open deuren geschied zijn van de       uitspraak;         3°. wegens onbevoegdheid;         4°. wegens overschrijding van rechtsmacht.         2. Tegen beschikkingen in burgerlijke zaken is beroep in       cassatie, afgezien van cassatie "in het belang der wet", slechts       toegelaten op de in het eerste lid onder 1°, 3° en 4° genoemde       gronden."   28     By virtue of Article 29 of the Mentally Ill Persons Act, a person detained in a mental hospital may at any time request the hospital board to release him.   The board must immediately consult the medical director of the institution.   If the latter's opinion is unfavourable, the board has to transmit the request, together with the opinion, to the public prosecutor who, in general, will forward the request to the Regional Court (Arrondissementsrechtbank) for decision.   29     The Supreme Court also considered, in its judgment of 7 April 1989, that anyone who claims to have been unlawfully deprived of his liberty may institute tort proceedings on the basis of Article 1401 of the Civil Code (Burgerlijk Wetboek) and claim compensation for any damage suffered as a result of such unlawful deprivation of liberty (N.J. 1989, Nr. 532).   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   30     The Commission has declared admissible the applicant's complaints under Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention that, in the proceedings resulting in a judicial order authorising his committal to a mental hospital, he was not assisted by a lawyer, that he was not given the opportunity in these proceedings to acquaint himself with the documents in the case-file and that, as the Supreme Court declared his appeal in cassation inadmissible, he had no judicial remedy satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.   B.     Points at issue   31     The following are the points at issue in the present application:   -      whether there has been a violation of Article 5 para. 1       (Art. 5-1) of the Convention;   -      whether there has been a violation of Article 5 para. 4       (Art. 5-4) of the Convention.   C.     As regards Article 5 para. 1 (Art. 5-1) of the Convention   32     The relevant part of Article 5 para. 1 (Art. 5-1) of the Convention reads 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,       (...)"   33     The applicant has alleged that his detention in a mental hospital was not ordered "in accordance with a procedure prescribed by law" and that it was not "lawful" within the meaning of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.   He has pointed out in particular that he was not assisted by a lawyer at the hearing before the District Court judge and that he had no access to the documents in his case-file and was not informed of their contents.   34     The Government have stated that, according to the jurisprudence of the Supreme Court (cf. para. 23 above), a court deciding upon a request to detain a person in a mental hospital shall, in view of the vulnerable position such a person frequently will find himself in without the assistance of counsel, either appoint a lawyer itself or inquire whether the person concerned requires the assistance of counsel.   In case the person concerned is subsequently heard without the assistance of counsel, the case documents must indicate, inter alia, the results of this inquiry.   The Government admitted that the failure of the Court to inquire whether the applicant wished counsel to be appointed was not in accordance with the Supreme Court's case-law on this point.   35     In respect of the applicant's complaint that he had no access to the documents in his case-file and was not informed of their contents, the Government referred to the Supreme Court's ruling of 23 November 1990 in another case (cf. para. 24 above).   In this ruling the Supreme Court held that proceedings pursuant to the Mentally Ill Persons Act should be subject to the principle that the court may only make a decision on the basis of documents to which the person involved has had access and on which he has had the opportunity to comment.   The Supreme Court added that if this opportunity has not been given prior to the hearing, sufficient time should be set aside during the court proceedings in order to study these documents, but that it is not required that the consultation be expressly reflected in the judicial order or official report.   36     The Commission notes that according to the Supreme Court's case- law the applicant should have been asked whether he wanted to be assisted by a lawyer, and that, if he had answered this question in the affirmative, the judge, in principle, should have appointed a lawyer. It does not appear from the material submitted by the parties that such a question was put to the applicant.   The Commission notes that according to the Supreme Court's case-law a person, whose detention is sought on the basis of the Mentally Ill Persons Act, has the right to consult and comment on the documents in his case-file before the court decides on his detention.   The applicant's affirmation that he was not given access to the case-file or informed of its contents has not been contested by the Government.   37     In these circumstances, the Commission considers that the applicant's rights under Dutch law in respect of the proceedings concerning his detention in a mental hospital have not been respected. Consequently, the applicant's detention was not ordered in accordance with a procedure prescribed by Dutch law and it does not therefore satisfy the conditions of Article 5 para. 1 (Art. 5-1) of the Convention.         Conclusion   38     The Commission concludes, unanimously, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.   D.     As regards Article 5 para. 4 (Art. 5-4) of the Convention   39     Article 5 para. 4 (Art. 5-4) of the Convention provides as follows:         "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."   40     The applicant has alleged that he had no judicial remedy satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention as the Supreme Court refused to examine his appeal in cassation.   41     The Government submitted that the judicial order was given by a court and that, although subject to the restrictions laid down in Article 100 of the Judicial Organisation Act, an appeal in cassation was in principle possible.   The Government also pointed out that the applicant could at any time have lodged a request for his discharge, thus ensuring that his case be heard once again by a court, that compensation could be claimed and that in urgent cases summary proceedings (kort geding) may be instituted with the President of the Regional Court.   42     The Commission recalls that the detention order was issued by a judicial organ, i.e. the District Court judge.   However, the European Court has consistently held that the intervention of a single judicial body without a right to a further judicial remedy will satisfy Article 5 para. 4 (Art. 5-4) only on condition that the procedure followed has a judicial character and gives to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question (Eur. Court H.R., Wassink judgment of 27 September 1990, Series A no. 185-A, para. 30).   43     In the present case, the Commission has already found that the applicant's detention was not ordered "in accordance with a procedure prescribed by law" within the meaning of Article 5 para. 1 (Art. 5-1) of the Convention, since, in particular, he was not assisted by a lawyer and it did not appear that he had been asked whether he wanted the assistance of a lawyer (cf. paras. 36-37 above).   The European Court has pointed out that the procedural guarantees resulting from Article 5 para. 4 (Art. 5-4) should, unless there are special circumstances, include the assistance of a lawyer in proceedings relating to the continuation, suspension or termination of a mentally ill person's confinement in a psychiatric institution (Eur. Court H.R., Megyeri judgment of 12 May 1992, Series A no. 237-A, para. 23).   The Commission considers that the same principle should apply to proceedings which, as in the present case, concern the initial detention of a person in a psychiatric institution.   44     It follows that one fundamental guarantee inherent in proceedings under Article 5 para. 4 (Art. 5-4) was not respected in the proceedings before the District Court judge.   The applicant therefore had to be given the possibility of instituting further proceedings satisfying the conditions of that provision (Eur. Court H.R., Van der Leer judgment of 21 February 1990, Series A no. 170, para. 33).   45     The Commission notes that, under Article 100 of the Judicial Organisation Act, an appeal in cassation was only possible on specific limitative grounds and considers therefore that this remedy was not sufficient under Article 5 para. 4 (Art. 5-4).   Nor can the Commission find that the other remedies invoked by the Government - a request for discharge, a claim for compensation and summary proceedings before the President of the Regional Court - were, at least at the time immediately after the District Court judge's order, such as to allow an effective review of the lawfulness of the applicant's detention. The Commission refers in this regard to its remarks in the decision on the admissibility of the present application (see point 2 under The Law in that decision).   46     The Commission therefore finds that the applicant did not have at his disposal a procedure satisfying the requirements of Article 5 para. 4 (Art. 5-4).         Conclusion   47     The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   E.     Recapitulation   48     The Commission concludes:   -      unanimously, that there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 38);   -      unanimously, that there has been a   violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 47).     Secretary to the Second Chamber       President of the Second Chamber            (K. ROGGE)                               (S. TRECHSEL)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                     Item _______________________________________________________________________   15 January 1991                          Introduction of application   31 January 1991                          Registration of application   Examination of admissibility   8 April 1991                             Commission's decision to                                         invite the Government to                                         submit their observations on                                         the admissibility and merits                                         of the application   28 June 1991                             Government's observations   7 August and 6 September 1991            Applicant's observations in                                         reply   8 January 1992                           Commission's decision to                                         declare the application                                         admissible in respect of the                                         applicant's complaints under                                         Article 5 paras. 1 and 4                                         of the Convention   Examination of the merits   9 January 1992                           Parties invited to submit                                         further observations on                                         the merits   30 March 1992                            Commission's decision to                                         refer the application to the                                         Second Chamber   2 September 1992                         Commission's deliberations                                         on the merits, final vote and                                         adoption of the Report