CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 décembre 1987

.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. 12535/86                       by J.W.                       against the Netherlands             The European Commission of Human Rights sitting in private on 9 December 1987 the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mr.   C.L. ROZAKIS              Mrs.   J. LIDDY                Mr.   H. C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 17 October 1986 by J.W. against the Netherlands and registered on 20 October 1986 under file N° 12535/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations submitted by the respondent Government on 26 May 1987 and the observations in reply submitted by the applicant on 14 August 1987;           Having deliberated;           Decides as follows:   &_THE FACTS&S           The facts of the case as they have been submitted by the applicant may be summarised as follows.           The applicant is a Dutch citizen, born in 1942.   At present he resides at K., the Netherlands.   In the proceedings before the Commission he is represented by Mrs.   G.E. Later, a lawyer practising at The Hague.           On 15 November 1985, the applicant was detained by order of the Burgomaster of Emmen, issued on the basis of Section 35 c para. 3 of the Mentally Ill Persons Act (Krankzinnigenwet), and subsequently taken to a psychiatric hospital.           On 19 November 1985, the public prosecutor of Assen requested the prolongation of the applicant's detention.   On 20 November 1985, the applicant was heard by the President of the Regional Court (Arrondissementsrechtbank) of Assen, who subsequently also heard three other persons among whom the applicant's house doctor, by telephone.           The hearing of the applicant took place in the presence of his "confidential counsellor" (patiëntenvertrouwenspersoon) Mr. J..   After hearing the three other persons by telephone, the judge also telephoned to Mr.   J. and told him that these persons had not adduced any new arguments in addition to the facts which were already known from the documents.   According to Mr. J., this telephone conversation between him and the judge only lasted about ten minutes.           On 25 November 1985, the President decided that the applicant's detention should continue.           The applicant was discharged from the hospital in the middle of December 1985.           On 24 January 1986, the applicant appealed against the decision of 25 November 1985 to the Supreme Court (Hoge Raad), but on 18 April 1986 this appeal was declared inadmissible on the ground that the applicant had already been discharged and that he therefore no longer had any interest in his appeal.     &_COMPLAINTS&S           The applicant whilst invoking Article 5 para. 1 (e) of the Convention complains that his detention was not lawful under Dutch law because he did not, on account of mental derangement, represent such a danger to himself, to others or to public safety as to make his detention necessary or desirable.   In addition, no minutes were made of the hearing before the President of the Regional Court and the court registrar was not present.   Furthermore, the president of the Regional Court based his decision on information obtained in the applicant's absence and of which he was not apprised.           The applicant also complains that the Supreme Court failed to examine the legality of his detention contrary to Article 5 para. 4 of the Convention.           On the basis of his allegations under Article 5 para. 1 and 4, the applicant claims that he is entitled to compensation under Article 5 para. 5.           Finally, the applicant complains that he did not have a fair trial and he has invoked Article 6 para. 1 of the Convention in this respect.     &_PROCEEDINGS BEFORE THE COMMISSION&S           The application was introduced on 17 October 1986 and registered on 20 October 1986.           On 6 March 1987 the Commission decided to communicate the application to the respondent Government for observations on admissibility and merits.   These observations were received on 26 May 1987 and the applicant's reply on 14 August 1987.     &_SUBMISSIONS OF THE PARTIES&S   A.       The Government           It is admitted that the President of the Regional Court in Assen based his decision of 25 November 1985, inter alia, on information which he obtained by telephone.   The President then phoned the applicant's confidential counsellor on 21 November 1985 and asked for his comments on this information.   This procedure complied, so the respondent Government submit, with the requirements laid down by the Netherlands Supreme Court in a decision of 8 July 1985 taken in application of Section 35 i of the Mentally Ill Persons Act as interpreted in the light of Article 5 of the Convention.   It follows from that decision that it complies with the procedural requirements if the President informs the patient or his counsel by telephone or otherwise of the result of his telephone inquiries.           It is furthermore admitted that, contrary to Article 72 (1) of Regulation I implementing Section 19 of the Judicial Organisation Act, a court registrar did not participate at the hearing of the applicant nor was an official report drawn up of the hearing.   Nevertheless, the applicant's detention was lawful as the Regional Court's President rightly deduced from the facts and circumstances stated in the medical report and in the report by the Emmen Municipal Police that the applicant represented a danger to public order and to himself on account of his mental derangement.           The Court's President would not have reached a different decision if a registrar had been present at the hearing and had drawn up a report.   The absence of a court registrar did not in any way affect the applicant.           Consequently the applicant did not suffer any damage and has no claim under Article 5 para. 5 of the Convention.   Were he to be considered as a victim of a contravention of Article 5, he could have instituted civil proceedings against the State under tort law.   In the absence of concrete damage such proceedings would, however, not have offered chances of success.           Finally, the Government state that a patient detained under the Mentally Ill Persons Act does not lose the capacity to administer his property.   B.       The applicant           The applicant points out that neither he nor his counsel were informed by the Regional Court's President of the result of his telephone inquiries.   He submits that there is nothing to show that the confidential counsellor was kept informed and that his comments were taken into consideration by the President.   In any case it is questionable whether information to the confidential counsellor only is sufficient.           As regards the requirement of the presence of a court registrar at the hearing, the applicant considers that procedural guarantees should be respected.   Had a registrar drawn up a verbatim record, this could have proven that there had been no reasons to commit the applicant to a mental hospital.   In the absence of a verbatim record the documents in his case only reflect the views of those who advocated his committal to a mental hospital.           The applicant also considers that the respondent Government's observations disregard his complaint that the Supreme Court declared his appeal in cassation inadmissible and thereby deprived him of the opportunity to have the lawfulness of his detention determined.     &_THE LAW&S           The applicant mainly complains that his detention was not lawful under Dutch law and that the Supreme Court failed to examine the legality of his detention.   He also complains of the proceedings before the President of the Regional Court.   He invokes Article 5 paras. 1(e), 4 and 5 (Art. 5-1-e, 5-4, 5-5) as well as Article 6 para. 1 (Art. 6-1) of the Convention.           Article 27 para. 2 (Art. 27-2), in requiring the Commission to declare inadmissible any application from an individual, a non-governmental organisation or group of individuals which it considers to be manifestly ill-founded, does not permit the Commission, at the stage of admissibility, to reject a complaint which cannot so be described.           In the present case the Commission has carried out a preliminary examination of the information and arguments submitted by the parties.   The Commission finds that these raise substantial issues of interpretation and application of the Convention, in particular of Article 5 (Art. 5), which are of such complexity that their determination should depend upon an examination of their merits.           Consequently, the application cannot be regarded as manifestly ill-founded, and since no other ground of inadmissibility has been found, the Commission considers that the application must be declared admissible.           For these reasons, the Commission             DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.     Secretary to the Commission                President of the Commission          (H.C. KRÜGER)                                (C.A. NØRGAARD)