CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 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. 15942/90                       by D.R.                       against the Netherlands           The European Commission of Human Rights (Second Chamber) sitting in private on 14 October 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                   L. LOUCAIDES                   J.-C. GEUS                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 21 August 1989 by D.R. against the Netherlands and registered on 4 January 1990 under file No. 15942/90;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to the observations submitted by the respondent Government on 6 March 1992 and the applicant's observations submitted on 1 May 1992;         Having deliberated;         Decides as follows:       THE FACTS   A.     Particular circumstances of the case         The applicant is a Dutch citizen born in 1970.   At the time of the introduction of the application, he was detained at the State Institution for Youngsters (Rijksinstituut voor Jongeren), an institution for special treatment, in the "Lloyd Hotel" in Amsterdam, the Netherlands.   Before the Commission he is represented by Mr. Th. de Roos, a lawyer practising in Amsterdam.         The facts as submitted by the parties may be summarised as follows.         On 6 January 1986 the Amsterdam Regional Court (Arrondissementsrechtbank), which included the Juvenile Judge, sentenced the applicant on the basis of Article 77k of the Penal Code (Wetboek van Strafrecht) to placement in an institution for special treatment (inrichting voor buitengewone behandeling) on charges of manslaughter. This decision was based on a medical report recommending this measure following an examination of the applicant's personality which revealed a mental deficiency.   On 9 June 1986 the applicant was transferred from the "Lloyd Hotel" in Amsterdam, where he had been detained since 4 September 1985, to the State Institution for Youngsters "Op de Berg" in Amersfoort, the Netherlands.   Eventually, the institution "Op de Berg" was closed and the applicant was re-transferred to the "Lloyd Hotel" on 16 May 1988.   From there he was illegally absent from 27 March 1989 until 28 June 1989.         After filing a prolongation request on 6 June 1989, the Public Prosecutor (Officier van Justitie) summoned the applicant on 8 June 1989 to appear before the Amsterdam Regional Court in order to have his detention prolonged.   Pursuant to Articles 214 and 220 of the Child Welfare Implementation Order (Uitvoeringsbesluit Kinderbescherming), the Ministry of Justice (Ministerie van Justitie) provided the Public Prosecutor with several reports emanating from the institution for special treatment in which the applicant was detained concerning the progress of the treatment.   On the basis of these reports and in accordance with the Public Prosecutor's request of 6 June 1989, the Regional Court prolonged the applicant's detention by judicial order (rechterlijke beschikking) on 15 June 1989.   At the hearing the applicant's representative objected that the applicant's detention was unlawful since the initial order had expired and that therefore no prolongation could be ordered, as the Public Prosecutor introduced his prolongation request more than 2 years after the initial order.   The Regional Court held that such an interpretation was not in accordance with the law.   It ruled that in the present case the applicant's interest prevailed over the formal time-limit set forth in Article 77r of the Penal Code.         The applicant was not present at this hearing as he had absconded on 27 March 1989.         On 21 July 1991 the measure of placement in an institution for special treatment ended as the applicant had reached the age of 21.     B.     Relevant domestic law and practice         Placement in an institution for special treatment is a measure which a court can impose on a minor who suffered from a mental deficiency or a mental illness when committing the offence he is charged with (Article 77k of the Penal Code).         The judicial review and the conditions under which the measure may be ended are governed by Article 77r of the Penal Code which provides as follows:   <Dutch>         "Art.77r. 1. De maatregel van plaatsing in een inrichting       voor buitengewone behandeling eindigt uiterlijk op het       tijdstip waarop de veroordeelde de leeftijd van       eenentwintig jaren heeft bereikt.       2. De plaatsing kan te allen tijde van regeringswege       voorwaardelijk of onvoorwaardelijk worden beëindigd.       3. Voor zover de plaatsing niet eerder van regeringswege       onvoorwaardelijk is beëindigd, onderzoekt de rechter die de       maatregel heeft opgelegd telkens na verloop van twee jaren,       of de plaatsing door het belang van de veroordeelde nog       wordt gevorderd.   Het openbaar ministerie brengt de zaak       tijdig aan.   De rechter beslist zo spoedig mogelijk.       Indien het onderzoek daartoe aanleiding geeft, wordt de       plaatsing door de rechter voorwaardelijk of       onvoorwaardelijk beëindigd."   <Translation>         "1. The measure of placement in an institution for special       treatment expires at the very latest on the moment when the       convict reaches the age of twenty-one.       2. The placement can be terminated conditionally or       unconditionally at any point in time by the Government.       3. Insofar as the placement has not been terminated       unconditionally by the Government, the court which imposed       the measure shall examine every second year whether the       interests of the convict still require his placement.   The       Public Prosecutor shall start the proceedings on time.   The       court shall decide as soon as possible.   Should the       examination of the case call for termination of the       placement the court will order so conditionally or       unconditionally."         According to Articles 220 and 214 of the Child Welfare Implementation Order, the Minister of Justice sends to the Public Prosecutor at the court which ordered the measure a report on the progress of the detention, at the very latest two months before the expiry of the two year period.         The Public Prosecutor will forward this report to the court when introducing the review proceedings.     COMPLAINTS   1.     The applicant complains that he was unlawfully detained since the Public Prosecutor exceeded the statutory time-limit for introducing prolongation proceedings.   He invokes Article 5 para. 1 of the Convention.   2.     He also complains under Article 5 para. 4 of the Convention that in view of this delay, even when deducting the period he had absconded, the lawfulness of his detention was not speedily reviewed by the Regional Court.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 21 August 1989 and registered on 4 January 1990.         On 2 December 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 with regard to the issues under Article 5 paras. 1 and 4 of the Convention concerning the lawfulness of the applicant's detention.         The Government's observations were received by letter dated 6 March 1992.         On 30 March 1992 the Commission referred the application to the Second Chamber.         The applicant's observations were received by letter dated 1 May 1992.     THE LAW   1.     The applicant complains under Article 5 para. 1 (Art. 5-1) of the Convention that as the Public Prosecutor failed to introduce prolongation proceedings on time, his detention was unlawful.         The Government argue that according to Article 77r para. 1 of the Penal Code the measure of placement in an institution for special treatment expires automatically when the detainee reaches the age of twenty-one.   Unless the Government or the court suspends the measure in the meantime, the detention is valid and lawful from the moment it has been ordered until its automatic expiry.   In the present case the applicant's detention was therefore lawful notwithstanding the unusual delay in the review proceedings.         The applicant submits that pursuant to Article 77r para. 3 of the Penal Code, the necessity of his detention ought to have been reviewed by the competent court within two years after the initial placement order.   However, the Public Prosecutor brought the review proceedings 31/2 years after the initial order, thus rendering his detention unlawful after the expiry of the initial two year period.   He further refers to the Wassink judgment (Eur. Court H.R., Wassink judgment of 27 September 1990, Series A no. 185-A) and submits that the European Court of Human Rights requires in the light of Article 5 para. 1 (Art. 5-1) strict compliance with the relevant provisions of domestic law governing detention.   2.     The applicant further complains under Article 5 para. 4 (Art. 5-4) that the Regional Court did not speedily review the lawfulness of his detention, even when taking into account the period when he absconded.         The Government submit that the judicial review required by para. 4 of Article 5 (Art. 5) is incorporated in the initial detention order of 6 January 1986.   However, the applicant had the same possibility as adults placed at the Government's disposal to request his release in summary proceedings.         The applicant argues that instituting summary proceedings (kort geding) on the basis of Article 1401 of the Civil Code (Burgerlijk Wetboek) would not have provided any redress since such proceedings are not an appeal.   Moreover the findings of the European Court of Human Rights in the Keus case (Eur. Court H.R., Keus judgment of 25 October 1990, Series A no. 185-C) do not apply to the present case which concerns a minor.   3.     The Commission considers that the application raises important issues of law, in particular pertaining to the observance of the guarantees contained in Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention, which can only be determined in an examination of the merits of the case.   No grounds for inadmissibility have been established.         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)