CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 juillet 1989

.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. 12889/87                       by Robbert SMIET                       against the Netherlands             The European Commission of Human Rights sitting in private on 10 July 1989, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              Mr.   L. LOUCAIDES                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 24 April 1987 by Robbert SMIET against the Netherlands and registered on 2 May 1987 under file No. 12889/87;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to the observations on the admissibility and merits of the application submitted by the respondent Government on 8 January 1988;           Having regard to the observations submitted in reply by the applicant on 30 March 1988;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a Dutch citizen, born in 1951 and at present detained in a psychiatric hospital in Eindhoven, the Netherlands.   In the proceedings before the Commission he is represented by Ms.   G. Later, a lawyer practising in The Hague.           The facts of the case, as they have been submitted by the parties, may be summarised as follows:           On 18 August 1986 the applicant was detained by order of the Burgomaster of Eindhoven, issued on the basis of Section 35b of the Mentally Ill Persons Act (Krankzinnigenwet), and subsequently taken to a psychiatric hospital.   The order was based on a certificate of a psychiatrist drawn up on 18 August, in which it was stated that the applicant was paranoid and a danger to himself, to others or to public order.           On 20 August 1986 the Public Prosecutor of 's-Hertogenbosch made a request to the President of the Regional Court (Arrondissementsrechtbank) of 's-Hertogenbosch, that the applicant's detention (inbewaringstelling) be prolonged.   Under Section 35i para. 1 of the Mentally Ill Persons Act the President should decide within three days whether the detention should continue.   Saturdays and Sundays do not form part of the three-days' period.           On 21 August 1986 the Regional Court received the Public Prosecutor's request and the relevant documents.           On 26 August 1986 the Acting President of the Regional Court heard the applicant, his psychiatrist and his lawyer.   The latter argued that, considering that the request was made on 20 August 1986, and that 23 and 24 August were a Saturday and Sunday, the time-limit within which the President should have decided had already expired, and that the request should therefore be rejected.   The applicant himself submitted that he had agreed to stay in a psychiatric hospital voluntarily, until he found living accommodation.           On 27 August 1986 the President decided that the applicant's detention should continue.           On 29 August 1986 the applicant appealed to the Supreme Court.   He complained that, even counting from the day on which the Regional Court had received the Public Prosecutor's request, the President had not observed the time-limit, as required under the Mentally Ill Persons Act.   Furthermore, he claimed that there were not sufficient reasons to conclude that the detention was necessary in order to avert immediate danger to himself or other persons, since these reasons were mainly based on events in the past.   Moreover, detention was not necessary because he had agreed to stay in the hospital voluntarily.           The Government submitted that on 15 September 1986 the President of the Regional Court had authorised the applicant's placement in a psychiatric hospital.   The applicant submitted that it may not be concluded from this that the authorisation took effect on 15 September 1986.           Under Section 35j of the Mentally Ill Persons Act detention (inbewaringstelling) may last up to a maximum of three weeks after the decision of the President.   According to its recent case-law, the Supreme Court declares an appeal against a decision to prolong the detention inadmissible, if the period of three weeks has already passed by the time the Supreme Court takes its decision, since the applicant's interest in his appeal is then considered to have been lost.   Accordingly, in the present case, the applicant explicitly requested the Supreme Court to decide on his appeal within three weeks.           On 14 November 1986 the Supreme Court declared the appeal inadmissible on the ground that the maximum period of three weeks had already passed and that the appeal was no longer of any interest to the applicant.   COMPLAINTS           The applicant, invoking Article 5 para. 1 (e) of the Convention, complains that his detention was not lawful under Dutch law because the prescribed time-limit was not observed by the Acting President of the Regional Court.   In addition, his mental state did not represent such a danger to himself, to others or to public safety as to make his detention necessary or desirable.   Moreover, since the applicant had agreed to stay voluntarily at the psychiatric hospital, detention was not necessary.           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 paras. 1 and 5 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 because the Supreme Court did not go into his complaints about the Acting President's decision at all.   The Supreme Court avoided examining the merits of the case by waiting too long before taking a decision.   He invokes Article 6 para. 1 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 24 April 1987 and registered on 2 May 1987.           On 13 October 1987 the Commission decided to communicate the application to the respondent Government and to invite them to submit their observations on the admissibility and merits of the application.           The respondent Government's observations were submitted on 8 January 1989.   An English translation was submitted on 21 January 1988.           The applicant was granted an extension of the time-limit for submitting observations in reply from 4 March 1988 until 31 March 1988.   The applicant's observations were submitted on 30 March 1988.   THE LAW           The applicant complains that he was not detained in accordance with a procedure prescribed by law, since the President of the Regional Court had not observed the time-limit prescribed by the Mentally Ill Persons Act when deciding on the request that his detention be prolonged.   Furthermore, he complains that his mental state did not represent such a danger as to make his detention necessary or desirable, and that the detention was not necessary, since he had agreed to stay voluntarily in the psychiatric hospital. Moreover, he complains that the Supreme Court did not decide on the lawfulness of his detention.   The applicant submits that he has a right to compensation.   Finally, he complains of an unfair trial before the Supreme Court.   The applicant has invoked Articles 5 paras. 1, 4 and 5, and 6 para. 1 (Art. 5-1, 5-4, 5-5, 6-1) of the Convention.           The respondent Government have submitted that they accept that the time-limit embodied in the Mentally Ill Persons Act has been exceeded by one day.   However, they have pointed to certain decisions of the Supreme Court from which it may be concluded that exceeding the time-limits does not make the subsequent detention illegal. Furthermore, the Government have pointed out that it was the opinion of the President of the Regional Court that the applicant's detention was necessary and that it was correct for the President to assume that the applicant was not willing to stay voluntarily in the psychiatric hospital.   Moreover, the Government have noted that Article 5 para. 4 (Art. 5-4) does not guarantee a right to appeal.           As regards Article 5 para. 5 (Art. 5-5) the Government have contended that since Article 5 (Art. 5) of the Convention had not been violated, no right to compensation exists.   Further Article 5 para. 5 (Art. 5-5) presupposes that the applicant's interests are affected. In the present case, the applicant's interests had not been affected, since on 15 September 1986 the President of the Regional Court authorised his placement in a psychiatric hospital, i.e. one day before the period of detention under the emergency procedure would have ended.   Accordingly, the total length of detention at issue had not exceeded the length of time permitted under the Mentally Ill Persons Act.   Finally, the respondent Government have submitted that the applicant's detention had no effect on his capacity to administer his property and that, therefore, Article 6 para. 1 (Art. 6-1) of the Convention had not been violated.   Moreover, it is the Government's view that a procedure concerning detention falls to be reviewed under Article 5 (Art. 5) of the Convention and not under Article 6 para. 1 (Art. 6-1) of the Convention.           In reply, the applicant has submitted that the Supreme Court's case-law concerns different situations.   He has pointed to another decision (H.R. 23 januari 1987, NJ 1987 no. 409) in which the Supreme Court decided that the President of a Regional Court had to observe the time-limit prescribed by the Mentally Ill Persons Act.   The applicant accepts that his detention did not affect his capacity to administer his property.           The Commission considers that the application raises important questions of law and fact, which can only be determined by an examination of the merits of the case.   No grounds for inadmissibility having been established, the application must be declared admissible.           For this reason, 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)