CEDH · CASELAW;REPORTS;ENG — 10 février 1993

.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. 15672/89   P.J.B.                                   against                               the NETHERLANDS                          REPORT OF THE COMMISSION                        (adopted on 10 February 1993)                              TABLE OF CONTENTS                                                                    Page   I.     INTRODUCTION       (paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.    The application            (paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1         B.    The proceedings            (paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1         C.    The present Report            (paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 17-24). . . . . . . . . . . . . . . . . . . . . . . . 3         A.    The particular circumstances of the case            (paras. 17-23) . . . . . . . . . . . . . . . . . . . . . 3         B.    Relevant domestic law            (para. 24) . . . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras.   25-50) . . . . . . . . . . . . . . . . . . . . . . . 5         A.    Complaints declared admissible (para. 25). . . . . . . . 5         B.    Points at issue (para. 26) . . . . . . . . . . . . . . . 5         C.    Article 5 para. 4 of the Convention            (paras. 27-41) . . . . . . . . . . . . . . . . . . . . . 5         D.    Article 5 para. 1 of the Convention            (paras. 42-49) . . . . . . . . . . . . . . . . . . . . . 6         E.    Recapitulation            (para. 50) . . . . . . . . . . . . . . . . . . . . . . . 8   APPENDIX I    :   HISTORY OF THE PROCEEDINGS. . . . . . . . . . . . . 9   APPENDIX II   :   DECISION ON THE ADMISSIBILITY . . . . . . . . . . .10   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 1961 and was, when he introduced the application, detained in a mental hospital in Wolfheze, 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 extension of a judicial order for the applicant's committal to a mental hospital.   It raises issues under Article 5 paras. 1 and 4 of the Convention.   B.     The proceedings   5      The application was introduced on 23 August 1989 and registered on 23 October 1989.   After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 7 November 1990.   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 on 4 April 1991.   7      After having consulted the parties the Commission decided on 8 April 1991 to refer the application to the Second Chamber of the Commission.   8      The applicant's observations in reply were submitted on 10 June 1991.   9      On 2 September 1992 the Commission declared the application admissible.   10     On 14 September 1992 the parties were offered the possibility to submit additional observations on the application. They did not submit any such observations.   11     After having declared 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.   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   12     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 RUIZ                  J.-C. GEUS   13     The text of this Report was adopted by the Commission (Second Chamber) on 10 February 1993 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14     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.   15     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.   16     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   17     On 31 July 1987 the Regional Court (Arrondissementsrechtbank) of Arnhem ordered the applicant's detention in a mental hospital for a period of one year.   The judicial order (rechterlijke machtiging) would expire on 18 June 1988.   On 8 June 1988 the public prosecutor submitted a request to the Regional Court of Arnhem for an extension of this order.   This request was accompanied by a medical certificate dated 1 June 1988 by the applicant's treating psychiatrist, recommending an extension of the judicial order.   18     On 25 July 1988 the applicant, who was represented by a lawyer, and his treating psychiatrist were heard by the investigating judge (rechter-commissaris) on which occasion the applicant's lawyer requested a second medical opinion.   19     By interlocutory decision of 4 August 1988 the Regional Court decided to appoint a second psychiatrist and to invite him to submit a psychiatric report on the applicant before 29 August 1988.   This psychiatrist submitted his report, recommending an extension of the judicial authorisation, on 16 August.   The report was subsequently transmitted to the applicant's lawyer.   20     On 29 August 1988 the applicant, who was represented by his lawyer, was heard again on the basis of the second medical report.   21     On 12 September 1988 the Regional Court extended the judicial order by one year as from 18 June 1988.   22     The applicant's appeal to the Supreme Court (Hoge Raad) was rejected on 24 February 1989.   The Supreme Court rejected the applicant's complaint under Article 5 paras. 1 (e) and 4 of the Convention that he had not been heard within a reasonable time after the submission of the request to extend his detention in a mental hospital.   The Supreme Court held that in cases of this kind Article 5 para. 4 does not apply as the proceedings at issue concern an automatic periodical review of a judicial detention order and are not proceedings instituted by the applicant, challenging his detention, a possibility of which he could avail himself at any time.   The Supreme Court agreed with the Regional Court that the public prosecutor's request had not been dealt with as expeditiously as normally desirable, but considered that the total length of the proceedings was not unreasonably long in view of the fact that the applicant himself had requested a second medical opinion, a request which had been granted.   23     The Supreme Court also upheld the Regional Court's opinion that the mere lapse of time between the submission of the public prosecutor's request to extend the judicial order and the hearing before the Regional Court does not make the public prosecutor's request inadmissible.   B.     Relevant domestic law   24     Article 24 of the Mentally Ill Persons Act (Krankzinnigenwet) provides, inter alia:   <Translation>         "No more than fourteen and at least eight days before the       expiry of the period for which the Regional Court has       ordered someone's detention in a mental hospital, a request       can be submitted to the Regional Court to extend this       period by a maximum of one year (...)         The detainee in respect of whom an extension of the       judicial order for detention is requested shall remain in       the mental hospital pending the examination by the Regional       Court.   (...)"   III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   25     The Commission has declared admissible the applicant's complaints under Article 5 paras. 1 and 4 (Art. 5-1,4) of the Convention that his detention in a mental hospital between 18 June 1988, when the initial judicial order expired, and 12 September 1988, when the Regional Court decided to prolong his detention by one year as from 18 June 1988, was not lawful and not ordered in accordance with a procedure prescribed by law and that it took the Regional Court three months to take a decision on the request to extend the judicial order for his detention.   B.     Points at issue   26     The following are the points at issue in the present application:   -      whether there has been a violation of Article 5 para. 4       (Art. 5-4) of the Convention;   -      whether there has been a violation of Article 5 para. 1       (Art. 5-1) of the Convention.   C.     As regards Article 5 para. 4 (Art. 5-4) of the Convention   27     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."   28     The Government submit that at first sight, the extension of a hospital order in respect of persons placed at the Government's disposal within the meaning of the Netherlands Penal Code and the extension of a judicial order within the meaning of Article 24 of the Mentally Ill Persons Act are sufficiently similar to justify the conclusion that the latter also falls under Article 5 para. 4 (Art. 5-4).   The Government, however, add that the Supreme Court did not consider Article 5 para. 4 (Art. 5-4) applicable to the present proceedings as these concern an automatic review at regular intervals by the judicial authorities to ascertain whether the conditions pertaining to this deprivation of liberty continue to be valid.   29     The Government also state that in any event a detainee in a mental hospital can, at any point in time, request his discharge under Article 29 of the Mentally Ill Persons Act.   30     If Article 5 para. 4 (Art. 5-4) of the Convention is applicable to the proceedings at issue, the Government are of the opinion that neither the fact that the time between the public prosecutor's request and the first hearing on this request was longer than would generally be considered desirable nor the duration of the procedure as a whole is sufficient to justify the conclusion that the Regional Court did not come to a speedy decision.   31     The applicant considers that Article 5 para. 4 (Art. 5-4) is applicable to the present proceedings and argues that the decision on the lawfulness of his detention was not taken speedily as required by this provision.   In the applicant's view the Government have provided no justification for the delays which occurred in the proceedings on the prolongation of the judicial order.   32     The Commission first notes that the issue regarding the prolongation of the applicant's detention in the mental hospital did not arise as a result of a request submitted by the applicant but because the public prosecutor had asked for the detention to be prolonged.   33     The question arises as to whether Article 5 para. 4 (Art. 5-4) of the Convention is applicable to the present situation, since that provision entitles a detained person to take proceedings in order to have the lawfulness of his detention decided speedily by a court.   34     In this respect, the Commission notes that the European Court of Human Rights has considered Article 5 para. 4 (Art. 5-4) of the Convention also to be applicable to an automatic periodic review of a person's detention (cf. above-mentioned Koendjbiharie judgment, para. 27, and Keus judgment, para. 24).   The Commission considers that the same protection should be given to a detained person in circumstances such as in the present case, where the review of the detention is undertaken on the initiative of the public prosecutor and where the detained person remains in detention until that review has been terminated.   35     It follows that the Regional Court of Arnhem was under an obligation, according to Article 5 para. 4 (Art. 5-4) of the Convention, to decide speedily on the request for the prolongation of the applicant's detention.   36     The Commission notes that the applicant's committal to the hospital under the previous judicial order expired on 18 June 1988 and that, ten days earlier, i.e. on 8 June 1988, the public prosecutor had submitted a request for prolongation.   37     It is true that under Article 24 of the Mentally Ill Persons Act the detained person in respect of whom an extension of a judicial order for detention is requested shall remain in the mental hospital pending the examination by the Regional Court.   Nevertheless, the fact that the previous order was soon to expire should have been a special reason for the court to examine the request for prolongation as soon as possible.   38     It appears, however, that the investigating judge did not hear the applicant and his psychiatrist until 25 July 1988, i.e. nearly seven weeks after the public prosecutor's request had been submitted. No satisfactory explanation has been provided for this delay, and the respondent Government have admitted that the delay exceeded what could normally be considered desirable.   The Commission is of the opinion that, in view of this initial delay in dealing with the public prosecutor's request, the decision to prolong the applicant's detention cannot be considered to have been taken speedily.   39     The further period which elapsed from 25 July 1988, the date of the first hearing, to 12 September 1988, the date of the Regional Court's decision, was essentially due to the fact that a psychiatrist was asked to prepare a report on the applicant.   This new examination was made at the applicant's own request, and the delay which resulted therefrom is therefore essentially to be attributed to him.   40     In view of the foregoing, the Commission is of the opinion that there was unnecessary delay in deciding on the request for the prolongation of the applicant's detention and that the Regional Court's decision was not taken speedily as required by Article 5 para. 4 (Art. 5-4) of the Convention.         Conclusion   41     The Commission concludes unanimously that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   D.     As regards Article 5 para. 1 (Art. 5-1) of the Convention   42     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,       (...)"   43     The Government are of the opinion that the applicant's detention between 18 June 1988 and 12 September 1988 in a mental hospital was in accordance with a procedure prescribed by law.   Article 24 of the Mentally Ill Persons Act provides, inter alia, that a detainee in respect of whom the extension of a judicial order to detain him in a mental hospital has been requested, shall remain in detention pending the decision of the Regional Court.   44     The Government state that, contrary to the legislation governing hospital orders in respect of persons placed at the Government's disposal within the meaning of the Netherlands Penal Code (terbeschikkingstelling), the Mentally Ill Persons Act does not specify any time limit within which the Regional Court must reach a decision, but that an extension may be granted for a maximum of one year, commencing on the expiry date of the previous judicial order and not on the day on which this extension is granted by the Regional Court.   45     The applicant does not dispute the Government's observations in respect of the Mentally Ill Persons Act.   He is, however, of the opinion that Article 5 para. 1 (e) (Art. 5-1-e) of the Convention does not allow for a detention period as long as the one at issue, without the detention being authorised by a court.   46     The Commission notes that the complaint made in regard to Article 5 para. 1 (Art. 5-1) of the Convention is that, after the period of committal to a mental hospital had expired on 18 June 1988, the extension of that period was not ordered until 12 September 1988, which raises the question as to whether the applicant's detention between those two dates was decided in accordance with a procedure prescribed by law.   47     It should be noted, however, that the delay in deciding on the public prosecutor's application for a prolongation of the applicant's detention is also the basis for the applicant's complaint under Article 5 para. 4 (Art. 5-4) of the Convention and that the Commission has found a violation of that provision (see para. 41 above).   48     In these circumstances, the Commission does not find it necessary to make a separate examination of the complaint under Article 5 para. 1 (Art. 5-1) of the Convention (cf. Eur. Court H.R., Koendjbiharie judgment of 25 October 1990, Series A no. 185-B, para. 25, and Keus judgment of the same date, Series A no. 185-C, para. 20).         Conclusion   49     The Commission concludes, unanimously that no separate issue arises under Article 5 para. 1 (Art. 5-1) of the Convention.   E.     Recapitulation   50     The Commission concludes:   -      unanimously that there has been a   violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 42);   -      unanimously that no separate issue arises under Article 5 para. 1 (Art. 5-1) of the Convention (para. 50).     Secretary to the Second Chamber       President of the Second Chamber            (K. ROGGE)                               (S. TRECHSEL)                                 APPENDIX I                           HISTORY OF PROCEEDINGS   Date                                    Item _______________________________________________________________________   23 August 1989                          Introduction of application   23 October 1989                         Registration of application   Examination of admissibility   7 November 1990                         Commission's decision to invite                                        the Government to submit their                                        observations on the                                        admissibility and merits of the                                        application.   4 April 1991                            Government's observations.   8 April 1991                            Commission's decision to refer                                        the application to the Second                                        Chamber.   10 June 1991                            Applicant's observations in                                        reply.   2 September 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   14 September 1992                       Parties invited to submit                                        further observations on the                                        merits.   10 February 1993                        Commission's deliberations on                                        the merits, final vote and                                        adoption of the Report.