CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 26331/95                       by J.G.F.R.                       against the Netherlands        The European Commission of Human Rights (Second Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the 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 14 August 1994 by J.G.F.R. against the Netherlands and registered on 27 January 1995 under file No. 26331/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Dutch citizen, born in 1974, and is currently detained. Before the Commission he is represented by Mr. G. Ris, a lawyer practising in Dordrecht, the Netherlands.        The facts of the case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        Joint criminal proceedings were instituted against the applicant who was charged with being an accomplice to manslaughter and with aggravated theft. These offences were committed at different times when the applicant had absconded from the institution for psychiatric treatment of juvenile offenders (Inrichting voor Buitengewone Behandeling) where he had been placed pursuant to a decision of 12 November 1990 of the Regional Court (Arrondissementsrechtbank) of Rotterdam. The prosecution in respect of the charge of aggravated theft commenced when the applicant was still a minor, whereas at the time the prosecution in respect of the other charge commenced he had come of age.        Public hearings took place before the Dordrecht Regional Court on 16 July, 17 and 18 September 1992. The applicant submits that the Regional Court established that the indictment in which the applicant was charged with both offences contained a mistake which would have entailed its nullity. However, contrary to the legal provisions at the time which did not allow for a correction of the indictment, the Regional Court permitted the Public Prosecutor to correct the mistake. This was, however, not recorded in the procès-verbal of the hearing.        On 1 October 1992, the Regional Court acquitted the applicant of the charges of theft, but convicted him of being an accomplice to manslaughter, sentenced him to four years' imprisonment and ordered his subsequent placement at the disposal of the Government (terbeschikkingstelling) during which time he was to receive treatment (verpleging).        Both the applicant and the Prosecutions Department filed an appeal against the Regional Court's decision with the Court of Appeal (Gerechtshof) of The Hague. Meanwhile, on 25 January 1993, the Rotterdam Regional Court extended the applicant's placement in the institution for psychiatric treatment of juvenile offenders, taking into account, inter alia, the fact that he had been convicted for being an accomplice to manslaughter committed at a time when he had absconded from the institution.        As regards the criminal proceedings, a hearing before The Hague Court of Appeal was held on 5 March 1993 and commenced in camera. The applicant was told that he had the right to remain silent and his defence counsel raised an objection regarding the procès-verbal of the hearing before the Regional Court, which, he submitted, was incorrect as it did not mention that the prosecution had been allowed to correct a mistake in the indictment which should have entailed its nullity. The Court of Appeal rejected this objection and decided to separate the charges. It quashed the Regional Court's decision in respect of the charge of aggravated theft and referred this case back to the Regional Court, holding that this latter court should have tried the applicant in camera given that he had been a minor at the time the prosecution for this offence had commenced.        The Court of Appeal subsequently ordered the doors to be opened and continued the hearing in respect of the charge of complicity to manslaughter. The applicant and two expert-witnesses were heard before the hearing was adjourned to enable the expert-witnesses to report on the applicant's personality. The hearing was resumed on 28 May 1993.        On 11 June 1993 the Court of Appeal quashed the Regional Court's judgment also in respect of the charge of complicity to manslaughter. It convicted the applicant of this offence, sentenced him to six years' imprisonment and ordered his subsequent placement at the disposal of the Government during which time he was to receive treatment.        The applicant filed an appeal in cassation against this last decision. He argued, inter alia, that the prosecution should have been declared inadmissible by the Court of Appeal since the criminal charge at issue, i.e. complicity to manslaughter, had already been determined by the Rotterdam Regional Court in its decision extending his placement in an institution for psychiatric treatment of juvenile offenders.        The applicant further complained of the proceedings before the Court of Appeal which had begun in camera, preventing counsel from raising his objections as regards the procès-verbal in public. He finally alleged that the Court of Appeal had wrongly concluded that the applicant suffered from a mental deficiency or derangement and that he should therefore not have been placed at the disposal of the Government to undergo enforced psychiatric treatment.        The Supreme Court (Hoge Raad) rejected the appeal in cassation on 15 February 1994. On 14 August 1994 the applicant submitted a copy of his application to the Commission to the Supreme Court and requested the latter to reconsider its decision in view of the contents of the application. The applicant submits that as long as the Supreme Court does not reconsider its decision, domestic remedies must be considered to have been exhausted.   B.    Relevant domestic law and practice        In the Netherlands, where majority is reached at the age of eighteen, juvenile penal law and criminal procedure provide for exceptions to the general law.        Juvenile criminal procedure applies if the suspect has not yet reached the age of eighteen when a prosecution against him is commenced pursuant to Section 487 of the Code of Criminal Procedure (Wetboek van Strafvordering, hereinafter referred to as CCP). Juvenile criminal proceedings are held in camera unless there are co-accused who had reached the age of eighteen at the time the prosecution commenced (Section 500f CCP).        Juvenile penal law differs from regular penal law in that it has its own system of punishments (straffen, Section 77g Criminal Code, hereinafter referred to as CC) and curative or protective measures (maatregelen, Section 77h CC). One of these measures is committal to an institution for psychiatric treatment of juvenile offenders. This is a curative measure applied only to young persons with impaired mental development or suffering from a serious mental disturbance (Section 77k CC). If the interests of the person concerned so require, the placement may be extended after every two years but it will end at the age of twenty-one.        Under regular penal law, placement at the disposal of the Government may be imposed on the accused who, at the time of committing an offence, suffered from a mental deficiency or derangement (Section 37a CC). In deciding on this matter, account is taken of advice and reports concerning the personality of the accused as well as of the seriousness of the offence and the number of previous convictions. A judge may further decide that a person placed at the disposal of the Government shall receive treatment at the Government's expense (verpleging, Section 37b CC).   COMPLAINTS        The applicant complains under Article 3 of the Convention that enforced psychiatric treatment of a person who does not suffer from a mental deficiency or derangement amounts to torture.        The applicant further complains that his conviction by the Court of Appeal violated the principle of "ne bis in idem" in that he had already been punished for the offence of complicity to manslaughter when the Rotterdam Regional Court decided to extend his placement in an institution for psychiatric treatment of juvenile offenders. In this respect he argues that this principle is enshrined in Article 6 of the Convention and that Article 4 of Protocol No. 7 serves merely as a clarification of that provision.        As regards Article 6 of the Convention, the applicant also complains that part of the proceedings before the Court of Appeal were conducted in camera. This allowed the Court of Appeal not to react in public to defence counsel's statement that the procès-verbal of the hearing before the Regional Court was incorrect and that the prosecution had been allowed to change the indictment although the indictment should have been declared null and void.   THE LAW   1.    The applicant complains that the enforced psychiatric treatment imposed on him constitutes a violation of Article 3 (Art. 3) of the Convention, which reads:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission notes in the first place that it does not appear that the applicant has complied with the obligation contained in Article 26 (Art. 26) of the Convention to exhaust domestic remedies since he has not invoked Article 3 (Art. 3), either in form or in substance, in the domestic proceedings. It can furthermore not agree with the applicant that domestic remedies should be considered to have been exhausted by virtue of his request to the Supreme Court to reconsider its decision in light of the application lodged with the Commission, as such a request cannot be considered an effective remedy which needs to be exhausted for the purposes of Article 26 (Art. 26) of the Convention.        Even assuming that domestic remedies have been exhausted, the Commission recalls that it is not competent to examine alleged errors of fact or law committed by national courts, except where it considers that such errors might have involved a possible violation of the rights and freedoms set forth in the Convention (cf. No. 21283/93, Dec. 5.4.94, D.R. 77-A, p. 81). In the circumstances of the present case, where the Court of Appeal reached its decision after having consulted two expert-witnesses who reported on the applicant's personality, the Commission finds that such a situation does not occur.        It follows that this aspect of the application is in any case manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further argues that his conviction by the Court of Appeal amounted to an infringement of the principle of "ne bis in idem", which, according to the applicant, is enshrined in Article 6 (Art. 6) of the Convention.        The Commission recalls, however, that according to its constant case-law the Convention guarantees neither expressly nor by implication respect for this principle (cf. No. 7680/76, Dec. 16.5.77, D.R. 9, p. 190; No. 8945/80, Dec. 13.12.83, D.R. 39, p. 43; and No. 11069/84, Dec. 7.9.89, D.R. 62, p. 5). Given, furthermore, that the Netherlands has not ratified Protocol No. 7 (P7), the Commission has no competence to deal with this aspect of the applicant's case, which must be rejected as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2).   3.    The applicant finally complains that the proceedings before the Court of Appeal did not comply with the requirements of Article 6 (Art. 6) of the Convention in that he did not have a fully public hearing.        Article 6 (Art. 6) of the Convention, insofar as relevant, provides:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a ... public hearing ...   Judgment      shall be pronounced publicly but the press and public may be      excluded from all or part of the trial ..., where the interests      of juveniles ... so require ... "        The Commission notes that the beginning of the hearing before the Court of Appeal took place in camera. Given that juvenile criminal procedure was applicable to one of the charges against the applicant and having regard to the second sentence of paragraph 1 of Article 6 (Art. 6-1) of the Convention, the Commission finds that this does not raise an issue under this provision insofar as the proceedings taking part in camera related to this particular charge.        The Commission observes, however, that when the applicant's defence counsel complained of the procès-verbal which had been drawn up following the hearings before the Regional Court, the hearing was still being conducted in camera. In the applicant's view the Court of Appeal was in this way able to avoid having to deal with this matter in public.        It is true that following the opening of the doors, the proceedings continued rather than recommenced. Thus, the applicant was, for example, not told again that he had the right to remain silent. However, it does not appear that the applicant's defence counsel repeated his complaints concerning the procès-verbal, which would have necessitated the Court of Appeal to give a reaction in public. Nor does it appear that he was in any way prevented from doing so.        In the circumstances of the present case the Commission cannot find that the fact that part of the hearing was conducted in camera violated the applicant's right to a public hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber       President of the Second Chamber         (M.-T. SCHOEPFER)                        (H. DANELIUS)