EUROPEAN COURT OF HUMAN RIGHTS
In the Winterwerp case,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mrs. H. Pedersen, President,
Mr. G. Wiarda,
Mr. D. Evrigenis,
Mr. P.-H. Teitgen,
Mr. G. Lagergren,
Mr. L. Liesch,
Mr. F. Gölcüklü,
and also, Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 29 November 1978 and from 25 to
26 September 1979,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The Winterwerp case was referred to the Court by the European
Commission of Human Rights ("the Commission") and the Government
of the Kingdom of the Netherlands ("the Government"). The case
originated in an application against the said State lodged with the
Commission in 1972 under Article 25 (art. 25) of the Convention by
Mr. Frits Winterwerp, a Netherlands National.
2. Both the Commission's request, to which was attached the report
provided for in Article 31 (art. 31) of the Convention and the
Government's application, which referred to Article 48 (art. 48),
were lodged with the registry of the Court within the period of three
months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47).
The request was filed on 9 March 1978 and the application on 21 April.
Their purpose is to obtain a decision from the Court as to whether or
not the facts of the case disclose a breach by the respondent State
of its obligations under Articles 5 para. 1, 5 para. 4 and 6 para. 1
(art. 5-1, art. 5-4, art. 6-1).
3. The Chamber of seven judges to be constituted included, as ex
officio members, Mr. G. Wiarda, the elected judge of Netherlands
nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b)
of the Rules of Court). On 11 March 1978, the President of the Court
drew by lot, in the presence of the Deputy Registrar, the names of the
five other members, namely Mrs. H. Pedersen, Mrs. D. Bindschedler-Robert,
Mr. D. Evrigenis, Mr. L. Liesch and Mr. F. Gölcüklü (Article 43 in
fine of the Convention and Rule 21 para. 4 ) (art. 43). Subsequently,
Mrs. Bindschedler-Robert was exempted from sitting (4 July 1978) and
Mr. Balladore Pallieri was prevented from taking part in the
consideration of the case (25 September 1979); they were replaced by
the first two substitute judges, Mr. Lagergren and Mr. Teitgen
(Rules 22 para. 1 and 24 paras. 1 and 4).
Mr. Balladore Pallieri and then, as from 25 September 1979,
Mrs. Pedersen assumed the office of President of the Chamber
(Rule 2l para. 5).
4. Acting through the Deputy Registrar, the President of the Chamber
ascertained the views of the Agent of the Government and the Delegates
of the Commission regarding the procedure to be followed. On 19 May,
he decided that the Agent should have until 1 August 1978 to file a
memorial and that the Delegates should be entitled to file a memorial
in reply within two months from the date of the transmission of the
Government's memorial to them by the Registrar.
The Government's memorial was received at the registry on 24 July 1978.
On 18 September, the Secretary to the Commission advised the Registrar
that the Delegates did not propose to submit a memorial in reply.
5. After consulting, through the Registrar, the Agent of the
Government and the Delegates of the Commission, the President of the
Chamber directed on 6 October that the oral hearings should open on
28 November. On 21 October, he invited the Government to produce a
certain document; it was filed at the registry on 10 November.
6. The oral hearings took place in public at the Human Rights
Building, Strasbourg, on 28 November. Immediately prior to their
opening, the Court had held a short preparatory meeting.
There appeared before the Court:
- for the Government:
Miss F.Y. van der Wal, Assistant Legal Adviser to
the Ministry of Foreign Affairs, Agent,
Mr. E.A. Droogleever Fortuijn, Landsadvocaat,
Mr. L.A. Geelhoed, Official at the Ministry of Justice Counsel;
- for the Commission:
Mr. J.E.S. Fawcett, Principal Delegate,
Mr. C.H.J. Polak, Delegate,
Mr. J.H.A. Van Loon, who had represented the applicant before the
Commission, assisting the Delegates under
Rule 29 para. 1, second sentence, of the Rules of Court.
The Court heard addresses by Miss van der Wal, Mr. Droogleever Fortuijn
and Mr. Geelhoed for the Government and by Mr. Fawcett and Mr. Van Loon
for the Commission, as well as their replies to questions put by the
Court.
7. Acting on a suggestion made by the Principal Delegate, the President
of the Chamber declared the proceedings only provisionally closed so
as to allow the Commission to submit, within a time-limit of two weeks,
a written statement from the Government of the United Kingdom of
Great Britain and Northern Ireland on the interpretation of Article 5
para. 4 (art. 5-4). In November there had been an exchange of letters
between the United Kingdom Government and the Registrar in this connection.
On 15 December 1978, in response to a request from the Commission, the
President extended the aforesaid time-limit until 5 January 1979. The
written statement from the United Kingdom Government was filed at the
registry by the Commission on 9 January; the Delegates indicated at
the same time that they had no observations of their own to make. By
letter received on 2 February, the Agent of the Netherlands Government
informed the Registrar that her Government felt no need to comment on
the points raised in the said statement.
8. On 27 December 1978, Mr. Van Loon communicated to the Court
certain documents that he had referred to during the hearings.
9. The Chamber made final the closure of the proceedings on
26 September 1979.
AS TO THE FACTS
10. Mr. Frits Winterwerp resides in the Netherlands. He married in
1956 and several children were born of the marriage. In 1968, he was
committed to a psychiatric hospital by direction of the local burgomaster
in accordance with an emergency procedure. Six weeks later, on his
wife's application, he was confined to the same hospital under an
order made by the District Court (kantongerecht) of his place of
residence. On his wife's further application and subsequently at the
request of the public prosecutor (officier van justitie), the order
was renewed from year to year by the Regional Court (arrondissements-
rechtbank) on the basis of medical reports from the doctor treating
the applicant.
Mr. Winterwerp complains of the procedure followed in his case. In
particular, he objects that he was never heard by the various courts
or notified of the orders, that he did not receive any legal
assistance and that he had no opportunity of challenging the medical
reports. His complaints are also directed against the decisions on
his requests for discharge and against his loss of civil capacity.
A. NETHERLANDS LEGISLATION ON DETENTION OF PERSONS OF UNSOUND MIND
11. The detention of persons of unsound mind is governed by an Act of
27 April 1884 on State supervision of mentally ill persons (wet van
27 april 1884, Stb 96, tot regeling van het Staatstoezicht op
krankzinnigen). Usually referred to as the Mentally Ill Persons Act
(krankzinnigenwet), the Act has been amended several times, in the
last instance by an Act of 28 August 1970 which came into force on
15 May 1972, that is some time after the applicant had first been
detained. A Bill providing for a complete reform of the system is at
present pending before the Netherlands Parliament.
The Mentally Ill Persons Act is divided into five main chapters.
Principally relevant for the present proceedings are the three chapters
dealing firstly with the admission of persons to psychiatric hospitals
and their stay therein, secondly with leave of absence and discharge
therefrom, and thirdly with the administration of the property of
persons admitted to psychiatric hospitals.
The Act does not define who are "mentally ill persons" but lays down
the grounds for committing such persons to hospital (see the following
paragraphs). It would appear from the evidence submitted that,
according to the general practice currently followed, the Netherlands
courts will authorise the confinement of a "mentally ill person" only
if his mental disorder is of such a kind or of such gravity as to make
him an actual danger to himself or to others.
(i) The procedure for detention in emergency cases
12. In urgent cases, the burgomaster has the power to direct the
compulsory admission of a "mentally ill person" to a psychiatric
hospital.
Until 1972, the burgomaster had to obtain prior medical advice only if
circumstances permitted; his decision was valid for three weeks but
the public prosecutor could shorten or extend the term (section 14 of
the Act).
This procedure was considerably changed by the 1970 Act, section 14
being repealed and replaced by sections 35b to 35j. The burgomaster is
now obliged to seek the prior opinion of a psychiatrist or, should
that not be possible, another medical practitioner. Once he has
issued a direction to detain, he must immediately inform the public
prosecutor and send him the medical declarations on which the
direction was based. The public prosecutor is in his turn required
to transmit these declarations not later than the following day to
the President of the Regional Court with, where appropriate, an
application for a continuation of the detention. Such continuation,
if made, is valid for three weeks but may be renewed by the President
for a second period of similar duration. Thereafter the procedure
concerning applications for a provisional detention order is to be
followed (see paragraphs 13 and 15 below).
(ii) Issue of a provisional detention order
13. Apart from the above-mentioned emergency cases, no one may be
deprived of his liberty on grounds of mental illness or insanity
except under a provisional detention order made by a court.
The District Court judge (kantonrechter) may issue a provisional
detention order on written application (verzoek) made by a close
relative by blood or marriage of full age, the spouse or the legal
representative of the individual concerned and seeking his confinement
either in the interests of public order or in his own interests
(section 12 of the Act). The judge may also issue such an order on
application by a person of full age who considers that his own condition
is such as to require suitable treatment (section 15). In addition, a
provisional detention order may be made by the President of the
Regional Court following a request (requisitoir) by the public
prosecutor (section 13).
The application or request must, according to section 16 of the Act,
be accompanied by a declaration drawn up not more than seven days
earlier by a doctor licensed to practise in the Netherlands but not
attached to the institution to which it is proposed admitting the
patient. The declaration must be to the effect that the person
concerned "is in a state of mental illness (toestand van krankzinnigheid)
and that it is necessary or desirable to treat him in a psychiatric
hospital". An application may also mention facts and documents giving
a clearer indication of the state of mental illness, but this is
purely optional.
Since the entry into force of the 1970 Act, the medical declaration
must be made by a psychiatrist who is not himself treating the
patient; as far as possible, it must state, with reasons, whether the
patient's condition is such that it would be pointless or medically
inadvisable for him to be heard by the court. The psychiatrist must,
if he can, first consult the family doctor.
14. The judge makes a provisional detention order if the medical
declaration, either on its own or in conjunction with the facts
related or the documents supplied, adequately establishes that treatment
in a psychiatric hospital is necessary or desirable (section 17 para. 1
of the Act).
Until 1972, the examination of the application or request was not
subject to any limitative formalities. Section 17, in the version in
force when the facts of the present case occurred, provided that the
judge had competence to hear beforehand the person whose detention
was being sought. As a result of the above-mentioned amending Act,
the judge is now obliged to hear the person in question unless he
concludes from the medical declaration that this would be pointless
or medically inadvisable; he may, either of his own motion or at the
request of that person, provide the latter with legal assistance
(section 17 para. 3). The judge must seek all possible information
both from the individual who made the application or the request
mentioned in sections 12 and 13 and from certain other individuals
(section 17 para. 4). He retains the power to call witnesses and
experts (section 17 para. 5) and may, if he thinks fit, summon anyone
who made an application for a detention order pursuant to section 12
to appear before him (section 17 para. 6).
15. A provisional detention order is not subject to appeal and is,
moreover, not notified to the person concerned (section 17); it is
valid for six months (section 22).
The order, like detention orders (see paragraphs 16 and 17 below),
authorises rather than enjoins compulsory confinement and it may
happen that it is not put into effect. In the case of a person who is
not yet hospitalised, the admission to a psychiatric hospital or
other specialised institution must take place within fourteen days, on
production of the court order (sections 17 and 18). The closest
relatives by blood or marriage, the spouse or the legal representative
must be informed of the patient's admission by the burgomaster, who is
notified thereof by the court or the public prosecutor (section 19).
The medical declaration on which the judge based his decision must be
transmitted to the institution's doctor treating the patient. This
doctor has to enter his findings on a register every day for the first
fortnight, then on a weekly basis for the ensuing six months and
thereafter on a monthly basis (section 20).
Within a fortnight of the admission, the doctor responsible for the
patient's treatment is required to send to the public prosecutor of
the district in which the psychiatric hospital is situated a reasoned
declaration on the patient's mental condition and on the necessity or
desirability of prolonging his stay in a psychiatric hospital
(section 21).
(iii) Issue of a detention order
16. Within six months following the issue of the provisional
detention order, a further application or request, seeking the
continuation of the patient's confinement in a psychiatric hospital
for up to one year, may be submitted to the Regional Court. Any such
application or request must be accompanied by the medical records of
the doctor responsible, together with a reasoned declaration by him
as to whether it is necessary or desirable for the patient to
undergo further treatment in a psychiatric hospital (section 22).
The patient need not be notified of the application or request or of
the proceedings relating thereto.
17. A decision on the application or request is taken by the Regional
Court (section 23). Apart from being obliged to hear the public
prosecutor, the Court does not have to follow any set procedure. It
may call for evidence from witnesses or other sources, hear the
patient, grant him legal assistance and consult experts, but it is not
bound to do so. During the examination of the case, the patient must
remain in the institution, if necessary for longer than six months
after the making of the provisional order.
The Regional Court's decision, which is not subject to appeal, is not
delivered at a public hearing, nor is it notified to the person
concerned. In practice, it is left to the hospital authorities to
determine if and when such notification is warranted from the medical
point of view.
The general rule is that, when hearing civil cases, the Regional Court
sits as a chamber composed of at least three judges (section 49 para. 1
of the Judicial Organisation Act). However, this chamber may refer
to a single-judge chamber (enkelvoudige kamer) such cases as it deems
suitable (Article 288 (b) of the Code of Civil Procedure). Each
Regional Court has its own Rules of Order (reglement van orde) which
are approved by Royal Decree on the advice of the Supreme Court
(Hoge Raad). Under the Rules of Order of the Utrecht Regional Court,
as in force at the relevant time (see paragraphs 25 and 26 below),
jurisdiction in all cases regarding the detention and stay of persons in
psychiatric hospitals was allotted to a single-judge chamber.
(iv) Renewal of a detention order
18. Not more than fourteen and not less than eight days before the
expiry of the period covered by the Court's detention order, an
application or request for the prolongation of the patient's detention
for up to one year may be made to the Regional Court (section 24 of
the Mentally Ill Persons Act).
Subsequent procedure is the same as for the making of the detention
order provided for in section 23 of the Act. The Act does not specify
when the Court has to give its ruling.
(v) Suspension and termination of a detention order
19. Leave of absence (verlof) for a specified period may be granted
to a patient by the doctor in charge of the institution (section 27).
20. The authorities of a psychiatric hospital may at any time grant
the discharge (ontslag) of a patient on the basis of a written
declaration from the aforesaid doctor to the effect that the patient
shows no signs of mental illness or that his treatment in a
psychiatric hospital is no longer necessary or desirable (section 28).
A written request for the patient's discharge may be made to the
hospital authorities by the patient himself, the person who applied
for his detention or, in the latter's absence, another of the
relatives by blood or marriage mentioned in section 12 (section 29 para. 1,
in the version in force prior to the 1970 Act). The authorities must
at once consult the doctor in charge of the institution and, if his
opinion is favourable, must discharge the patient. If the doctor's
opinion is unfavourable, the authorities must transmit the request,
together with the opinion, to the public prosecutor who will, in
principle, refer it to the Regional Court for decision. The Court's
procedure for this purpose is the same as that applicable to the
making of detention orders (see paragraph 17 above); its decision is
not subject to appeal (section 29 paras. 2 and 4).
However, the public prosecutor is not obliged to forward the request
to the Court if it appears manifestly impossible to grant the request
(indien het verzoek klaarblijkelijk niet voor inwilliging vatbaar is),
if a previous request is still pending, or if the Court has already
dismissed a similar request during the period covered by the detention
order and the circumstances have not changed (section 29 para. 3).
The public prosecutor, being responsible for the supervision of
psychiatric hospitals, has a duty to see that no one is unlawfully
detained in such an institution. If the doctor in charge of the
institution agrees, the public prosecutor may order the discharge of
a patient whose continued confinement he considers unnecessary. If
the doctor in charge does not agree, the public prosecutor may refer
the matter to the Regional Court. Should the public prosecutor have
doubts about the need for the patient's continued confinement, he may
refer the matter to the Court; he is obliged to do so if a public
health inspector so requests (section 30).
When the period covered by a detention order expires, the hospital
authorities must inform the public prosecutor of the fact within eight
days and, if no application has been made to the Court to prolong the
detention, he must thereupon order the patient's discharge unless he
concludes from a reasoned declaration in writing by the doctor in
charge that such a step would present a danger to public order; in
the latter event, he must himself request the Court to prolong the
detention (section 31).
(vi) Detention and civil capacity
21. Any person of full age who is actually confined in a psychiatric
hospital automatically loses the capacity to administer his property
(section 32). As a consequence, all contracts entered into by the
person concerned after his confinement are void and he cannot legally
transfer property or operate his bank account. The patient regains
the capacity to manage his property only when he is formally
discharged but not, for instance, when he is granted leave of absence.
On application by any of the persons entitled to seek an individual's
detention, or at the request of the public prosecutor, the Regional
Court may appoint a provisional administrator (provisioneel
bewinsdvoerder) for anyone confined in a psychiatric hospital, should
this be deemed necessary or desirable (section 33). In addition, the
general rule laid down in Article 378 of the Civil Code enables the
Regional Court to nominate a guardian (curator) on behalf of a person,
whether in custody or not, who, by reason of mental illness or
dipsomania, is no longer capable of managing his own affairs.
(vii) The Bill pending before Parliament
22. The overall aim of the Bill is to improve the position of the
psychiatric patient: it seeks to strengthen the procedural guarantees
accompanying his detention and to allow him more freedom within the
hospital.
The criterion justifying confinement in a psychiatric hospital would
henceforth be that the individual, on account of his mental state,
constitutes "a danger for himself, for others or for the general
safety of persons and goods". Further modifications of relevance
would include the following: the competent court at all stages would
be the single-judge chamber of the Regional Court; the provisional
detention order would be valid for three weeks only; before making an
order or determining a request for discharge, the court would as
a general rule have to hear the person concerned; the only occasion
when the court might decide not to hear the patient would be when
examining the application or request for the first detention order,
that is three weeks after the making of the provisional detention
order; the court would be obliged to grant legal assistance to the
person concerned at his request; there would be a right of appeal
against orders authorising detention; admission to a psychiatric
hospital would not automatically bring about loss of civil capacity.
B. PARTICULAR FACTS OF THE CASE
23. Mr. Winterwerp received voluntary treatment in a psychiatric
hospital from 28 March to 12 September 1967. At some time prior
to this, he had apparently suffered severe brain damage in an
accident. On 17 May 1968, he was committed to the "Zon en Schild"
("Sun and Shield") psychiatric hospital at Amersfoort on the direction
of the Amersfoort burgomaster in accordance with the emergency
procedure then in force under section 14 of the Mentally Ill Persons
Act (see paragraph 12 above). The events prompting this decision
were that the applicant had stolen documents from the local registry
office, been detained by the police and then been found lying naked
on a bed in a police cell. The term of the detention was extended by
the public prosecutor, as was possible under paragraph 3 of section 14.
24. On 24 June 1968, during the currency of the "emergency"
confinement, Mr. Winterwerp's wife applied to the Amersfoort District
Court on a standard form for his provisional detention in the "Zon an
Schild" hospital in the interests of public order as well as those of
her husband.
The application was accompanied by a medical declaration, dated
20 June, made out by a general medical practitioner who had examined
the patient for the first time that day. The declaration stated that
the patient had been detained in 1966 for "attempted murder" and
had been under psychiatric treatment in 1967. It also stated that
the patient was "a schizophrene, suffering from imaginary and
Utopian ideas, who has for a fairly long time been destroying himself
as well as his family" and that he "is unaware of his morbid
condition". The doctor concluded that "for the time being" the
patient certainly could not "be left at large in society".
On 24 June, on the basis of this declaration, the District Court
granted the application and authorised the applicant's provisional
detention, without first exercising its power to hear him or to seek
expert advice.
25. On 1 November 1968, the applicant's wife applied to the Utrecht
Regional Court for a one-year detention order in respect of her
husband.
Her application was accompanied by the daily and weekly records of the
doctor in attendance as well as the declaration as to the necessity
or desirability of further treatment in a psychiatric hospital.
On the basis of these documents, the single-judge chamber responsible
for hearing such cases made the order on 23 December 1968.
26. On 16 December 1969, following an application by Mrs. Winterwerp
and on the basis of the monthly records of the doctor in attendance
and his declaration, identical to that of the previous year, the
single-judge chamber made an order authorising the prolongation of
the detention "by one year if necessary" as from 23 December 1969.
On 6 August 1970, the applicant was moved to the "Rijks Psychiatrisch
Inrichting" ("State Psychiatric Establishment") at Eindhoven. This
hospital was further away from the home of his wife, whom he had
previously been able to visit on several occasions.
27. On 14 December 1970, the public prosecutor at 's-Hertogenbosch
requested the renewal of the detention order for a further year, on
the basis of the monthly records of the doctors who had successively
treated Mr. Winterwerp and a declaration by the doctor in attendance
at Eindhoven, which read as follows:
"The patient is suffering from a mental illness with the following
symptoms: psychopathic personality, quarrelsome and scheming nature,
paranoiac tendency, untrustworthiness; shows signs of dementia in the
shape of ... emotional withdrawal; egocentric tendency; in need of
strict supervision and special care. Continued treatment in a
psychiatric hospital must be considered necessary."
On 7 January 1971, that is to say, two weeks after the previous order
had lapsed, the first ordinary chamber of the Regional Court
at 's-Hertogenbosch authorised detention for a further year.
28. On 21 December 1971, 15 December 1972 and 14 December 1973, the
same court made further one-year renewals of the detention order
following requests by the public prosecutor and on the basis of the
monthly medical records and identical declarations by the doctor in
attendance, who had however changed in the course of 1972. On
19 December 1974 and 15 December 1975, the Regional Court again
granted similar requests by the public prosecutor. The most recent
renewal order referred to in the evidence dates from December 1977.
29. The medical records forwarded each year to the courts, although
fairly brief, indicated that the applicant showed schizophrenic and
paranoiac reactions, that he was unaware of his pathological condition
and that, on several occasions, he had committed quite serious acts
without appreciating their consequences. For example, the records
relate how, in pursuance of some fanciful schemes, Mr. Winterwerp went
abroad with family savings and soon became penniless, without
realising either the state of neglect in which he had left his family
or his own dependence on the consular authorities who had to assist
and repatriate him.
30. In February 1969, the applicant had made a first request to the
hospital authorities for his discharge in accordance with section 29
of the Act (see paragraph 20 above). The hospital authorities
forwarded the request to the public prosecutor who in turn referred
it to the Regional Court. The latter Court, after hearing the patient
at the hospital, dismissed the request.
In April 1971, the hospital authorities forwarded a second request to
the public prosecutor with a negative recommendation. After hearing
Mr. Winterwerp, the public prosecutor, pursuant to paragraph 3 of
section 29, rejected the request without referring it to the Regional
Court for decision. The same applied to a third request, made in
July 1972.
On 20 February 1973, the patient made a further request for his
discharge to the authorities of the "Rijks Psychiatrisch Inrichting".
On 26 April 1973, the medical director of the institution forwarded
the request to the public prosecutor with his comments, which may be
summarised as follows: the patient was suffering from a paranoiac
psychosis which could be successfully treated by psychopharmacological
methods, but during previous leaves of absence he had failed to take
the drugs prescribed, with the result that he had had to be readmitted
after a relapse; steps were being taken to reintegrate the patient
gradually into society and he was spending his nights outside the
hospital; in the light of the past setbacks, there would have been
little point in discharging him. On the strength of this opinion
and after hearing Mr. Winterwerp, the public prosecutor again refused
the request and refrained from referring it to the Regional Court.
He notified the applicant of his decision on 17 May 1973.
The applicant's four requests for discharge took the form of simple
statements that he was not mentally deranged, that he had been
falsely accused of misdemeanours and that he did not constitute a
danger for himself or to others. The public prosecutor did not
refer the three later requests to the Regional Court because it
appeared manifestly impossible to grant them.
31. Mr. Winterwerp has from time to time been given leave of
absence for various periods. On at least four occasions - nine months
in 1974, four months in 1976-1977, one month and two and a half months
in 1978 - he has been allowed to lodge outside the hospital on an
experimental basis. Each time, he has had to be readmitted to
hospital. Several reasons are adverted to in the evidence: he failed
to follow the treatment prescribed; his lodging was found to be in a
filthy state; and, most recently, he smashed a window in Germany where
he was wandering.
32. Mr. Winterwerp automatically lost the capacity to administer his
property on being detained in a psychiatric hospital (section 32 of
the Act; see paragraph 21 above). No provisional administrator was
appointed (section 33) and his affairs were at first managed, so it
seems, by his wife. Then, on 11 August 1971, a guardian was nominated
by the Regional Court (Article 378 of the Civil Code). The guardian
has made no request for Mr. Winterwerp's release.
PROCEEDINGS BEFORE THE COMMISSION
33. In his application of 13 December 1972 to the Commission,
Mr. Winterwerp complained that he was being arbitrarily deprived of
his liberty, that he had not been allowed a hearing by a court and
that he had not been informed of the decisions by which his
confinement was several times prolonged.
On 30 September 1975, the Commission accepted the application,
specifying that it had "examined the application ... with reference
to Article 5 (art. 5) of the Convention".
During the course of the proceedings on the merits, the applicant's
lawyer put forward a further claim: his client's automatic loss of
capacity to administer his property involved a "determination of
his civil rights and obligations" which had taken place in the absence
of a genuinely judicial procedure, with the result that Article 6 para. 1
(art. 6-1) had been contravened.
34. In its report of 15 December 1977, the Commission expressed
the unanimous opinion that there had been a breach of Article 5 para. 4
(art. 5-4) but not of Article 5 para. 1 (art. 5-1). On the other
hand, the Commission considered that it ought not to state any view on
the alleged violation of Article 6 para. 1 (art. 6-1) since "this
issue ... relates to facts distinct from those originally submitted ...
for its examination and has not been the subject of any detailed
argument before it".
AS TO THE LAW
I. On the alleged violation of Article 5 para. 1 (art. 5-1)
35. There is no dispute that since 1968, except for a few periods of
interruption, the applicant has been deprived of his liberty in
pursuance of the Mentally Ill Persons Act (see paragraphs 23 to 31
above). He claims to be the victim of a breach of Article 5 para. 1
(art. 5-1) which, insofar as relevant for the present case, reads as
follows:
"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 ...;
..."
A. "The lawful detention of persons of unsound mind"
36. Mr. Winterwerp maintains in the first place that his deprivation
of liberty did not meet the requirements embodied in the words "lawful
detention of persons of unsounf mind". Neither the Government nor the
Commission agrees with this contention.
37. The Convention does not state what is to be understood by the
words "persons of unsound mind". This term is not one that can be
given a definitive interpretation: as was pointed out by the
Commission, the Government and the applicant, it is a term whose
meaning is continually evolving as research in psychiatry progresses,
an increasing flexibility in treatment is developing and society's
attitude to mental illness changes, in particular so that a greater
understanding of the problems of mental patients is becoming more
wide-spread.
In any event, sub-paragraph (e) of Article 5 para. 1 (art. 5-1-e)
obviously cannot be taken as permitting the detention of a person
simply because his views or behaviour deviate from the norms
prevailing in a particular society. To hold otherwise would not be
reconcilable with the text of Article 5 para. 1 (art. 5-1) which
sets out an exhaustive list (see the Engel and others judgment of
8 June 1976, Series A no. 22, p. 24, para. 57, and the Ireland v.
the United Kingdom judgment of 18 January 1978, Series A no. 25,
p. 74, para. 194) of exceptions calling for a narrow interpretation
(see, mutatis mutandis, the Klass and others judgment of
6 September 1978, Series A no. 28, p. 21, para. 42, and the Sunday Times
judgment of 26 April 1979, Series A no. 30, p. 41, para. 65). Neither
would it be in conformity with the object and purpose of Article 5 para. 1
(art. 5-1), namely to ensure that no one should be dispossessed of his
liberty in an arbitrary fashion (see the Lawless judgment of
1 July 1961, Series A no. 3, p. 52, and the above-mentioned Engel and
others judgment, p. 25, para. 58). Moreover, it would disregard the
importance of the right to liberty in a democratic society
(see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A
no. 12, p. 36, para. 65, and the above-mentioned Engel and others
judgment, p. 35, para. 82 in fine).
38. Just as the Convention does not give any definition of "persons
of unsound mind", so the Netherlands legislation does not define
"mentally ill persons" (krankzinnige); what the legislation does is to
lay down the grounds for committing such persons to a psychiatric
hospital (see paragraph 11 above). Thus, an application may be made
for the provisional detention of a "mentally ill person" either in his
own interests or in the interests of public order; there must be a
medical declaration to the effect that the person concerned "is in a
state of mental illness and that it is necessary or desirable to treat
him in a psychiatric hospital" (sections 12 and 16 of the Act;
paragraph 13 above). The District Court makes a provisional detention
order if it finds this to be adequately established (section 17 of
the Act; paragraph 14 above). Similarly, the application for a
detention order, on which the Regional Court decides, must be
accompanied by a reasoned declaration by the doctor responsible that
it is necessary or desirable for the patient to undergo further
treatment in a psychiatric hospital (sections 22 and 23 of the Act;
paragraphs 16 and 17 above). In addition, it appears from the
evidence that, according to the general practice currently followed,
the Netherlands courts authorise the confinement of a "mentally ill
person" only if his mental disorder is of such a kind or of such
gravity as to make him an actual danger to himself or to others;
the Bill presently pending before Parliament speaks of "a danger for
[the individual concerned], for others or for the general safety of
persons and goods" (see paragraphs 11 and 22 above).
Having regard to the above-mentioned practice, the law in force does
not appear to be in any way incompatible with the meaning that the
expression "persons of unsound mind" is to be given in the context of
the Convention. The Court therefore considers that an individual who
is detained under the Netherlands Mentally Ill Persons Act in
principle falls within the ambit of Article 5 para. 1 (e) (art. 5-1-e).
39. The next issue to be examined is the "lawfulness" of the
detention for the purposes of Article 5 para. 1 (e) (art. 5-1-e).
Such "lawfulness" presupposes conformity with the domestic law in the
first place and also, as confirmed by Article 18 (art. 18), conformity
with the purpose of the restrictions permitted by Article 5 para. 1 (e)
(art. 5-1-e); it is required in respect of both the ordering and the
execution of the measures involving deprivation of liberty (see the
above-mentioned Engel and others judgment, p. 28, para. 68 in fine).
As regards the conformity with the domestic law, the Court points out
that the term "lawful" covers procedural as well as substantive rules.
There thus exists a certain overlapping between this term and the
general requirement stated at the beginning of Article 5 para. 1 (art. 5-1),
namely observance of "a procedure prescribed by law" (see paragraph 45
below).
Indeed, these two expressions reflect the importance of the aim
underlying Article 5 para. 1 (art. 5-1) (see paragraph 37 above): in
a democratic society subscribing to the rule of law (see the Golder
judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34, and
the above-mentioned Klass and others judgment, p. 25, para. 55), no
detention that is arbitrary can ever be regarded as "lawful".
The Commission likewise stresses that there must be no element of
arbitrariness; the conclusion it draws is that no one may be confined
as "a person of unsound mind" in the absence of medical evidence
establishing that his mental state is such as to justify his
compulsory hospitalisation (see paragraph 76 of the report). The
applicant and the Government both express similar opinions.
The Court fully agrees with this line of reasoning. In the Court's
opinion, except in emergency cases, the individual concerned should
not be deprived of his liberty unless he has been reliably shown to
be of "unsound mind". The very nature of what has to be established
before the competent national authority - that is, a true mental
disorder - calls for objective medical expertise. Further, the
mental disorder must be of a kind or degree warranting compulsory
confinement. What is more, the validity of continued confinement
depends upon the persistence of such a disorder (see, mutatis mutandis,
the Stögmüller judgment of 10 November 1969, Series A no. 9, pp. 39-40,
para. 4, and the above-mentioned De Wilde, Ooms and Versyp judgment,
p. 43, para. 82).
40. The Court undoubtedly has the jurisdiction to verify the
"lawfulness" of the detention (see the above-mentioned Engel and
others judgment, p. 29, para. 69). Mr. Winterwerp in fact alleges
unlawfulness by reason of procedural defects in the making of three
of the detention orders under consideration. Those allegations are
dealt with below in connection with the closely linked issue of
compliance with "a procedure prescribed by law" (see paragraphs 44
to 50). In the present context it suffices to add the following:
in deciding whether an individual should be detained as a "person
of unsound mind", the national authorities are to be recognised as
having a certain discretion since it is in the first place for the
national authorities to evaluate the evidence adduced before them
in a particular case; the Court's task is to review under the
Convention the decisions of those authorities (see notably, mutatis
mutandis, the Handyside judgment of 7 December 1976, Series A no. 24,
pp. 22 and 23, paras. 48 and 50, the above-mentioned Klass and
others judgment, p. 23, para. 49, and the above-mentioned Sunday Times
judgment, p. 36, para. 59).
41. As to the facts of the instant case, the medical evidence
submitted to the courts indicated in substance that the applicant
showed schizophrenic and paranoiac reactions, that he was unaware
of his pathological condition and that, on several occasions, he
had committed some fairly serious acts without appreciating their
consequences. In addition, various attempts at his gradual
rehabilitation into society haven failed (see paragraphs 24, 27, 29
and 30 above).
42. Mr. Winterwerp criticises the medical reports as unsatisfactory
for the purposes of Article 5 para. 1 (e) (art. 5-1-e). In addition,
he queries whether the burgomaster's initial direction to detain was
founded on psychiatric evidence.
In the Court's view, the events that prompted the burgomaster's
direction in May 1968 (see paragraph 23 above) are of a nature to
justify an "emergency" confinement of the kind provided for at that
time under section 14 of the Netherlands Act. While some hesitation
may be felt as to the need for such confinement to continue for as
long as six weeks, the period is not so excessive as to render the
detention "unlawful". Despite the applicant's criticisms, the Court
has no reason whatsoever to doubt the objectivity and reliability of
the medical evidence on the basis of which the Netherlands courts,
from June 1968 onwards, have authorised his detention as a person of
unsound mind. Neither is there any indication that the contested
deprivation of liberty was effected for a wrongful purpose.
43. The Court accordingly concludes that Mr. Winterwerp's
confinement, during all the various phases under consideration,
constituted "the lawful detention of [a person] of unsound mind",
within the meaning of sub-paragraph (e) of Article 5 para. 1 (art. 5-1-e).
B. "In accordance with a procedure prescribed by law"
44. The applicant maintains that his deprivation of liberty was
not carried out "in accordance with a procedure prescribed by law".
For the applicant, this expression implies respect of certain
elementary principles of legal procedure, such as informing and
hearing the person concerned and affording him some kind of
participation and legal assistance in the proceedings. In his
submission, these principles have not been observed in his case.
The Government reply that the relevant procedure under Netherlands
law, in ensuring regular review by an independent judge who bases his
decision on medical declarations, undoubtedly meets such requirements
as may be made in this respect by Article 5 para. 1 (art. 5-1).
According to the Commission, Article 5 para. 1 (e) (art. 5-1-e), apart
from making medical reports necessary, involves a simple reference
back to domestic law without laying down any minimum procedural
guarantees.
45. The Court for its part considers that the words "in accordance
with a procedure prescribed by law" essentially refer back to
domestic law; they state the need for compliance with the relevant
procedure under that law.
However, the domestic law must itself be in conformity with the
Convention, including the general principles expressed or implied
therein. The notion underlying the term in question is one of fair
and proper procedure, namely that any measure depriving a person of
his liberty should issue from and be executed by an appropriate
authority and should not be arbitrary. The Netherlands Mentally
Ill Persons Act (described above at paragraphs 11 to 20) satisfies
this condition.
46. Whether the procedure prescribed by that Act was in fact
respected in the applicant's case is a question that the Court has
jurisdiction to examine (see, for example, the above-mentioned
De Wilde, Ooms and Versyp judgment, pp. 38-39, paras. 69-70,
and the above-mentioned Engel and others judgment, p. 28, para. 68
in fine). Whilst it is not normally the Court's task to review
the observance of domestic law by the national authorities (see the
Ringeisen judgment of 16 July 1971, Series A no. 13, p. 40, para. 97),
it is otherwise in relation to matters where, as here, the Convention
refers directly back to that law; for, in such matters, disregard
of the domestic law entails breach of the Convention, with the
consequence that the Court can and should exercise a certain power of
review (see the decision of the Commission on the admissibility of
Application no. 1169/61, X v. Federal Republic of Germany, Yearbook
of the Convention, vol. 6, pp. 520-590, at p. 588).
However, the logic of the system of safeguard established by the
Convention sets limits upon the scope of this review. It is in the
first place for the national authorities, notably the courts, to
interpret and apply the domestic law, even in those fields where
the Convention "incorporates" the rules of that law: the national
authorities are, in the nature of things, particularly qualified to
settle the issues arising in this connection (see the above-cited
decision of the Commission, ibid.; see also, mutatis mutandis,
paragraph 40 above).
47. In two respects, Mr. Winterwerp alleges formal defects in the
detention orders made against him.
48. Firstly, he contends that the orders issued on 23 December 1968
and 16 December 1969 by the single-judge chamber of the Utrecht
Regional Court (see paragraphs 25 and 26 above) were "irregular"
under Netherlands law. According to the applicant, by allotting to
such a chamber all cases coming under sections 22 to 24 of the
Mentally Ill Persons Act, the Rules of Order of the Utrecht Regional
Court are incompatible with Article 288 (b) of the Code of Civil
Procedure which makes the reference of a matter to a single-judge
chamber dependent upon a specific decision in each individual case
by a chamber of at least three judges (see paragraph 17 above).
The Government, relying on other provisions of Netherlands law,
dispute this interpretation.
The Commission, for its part, expresses the opinion that "detention
orders are not alien to the competence of a single-judge chamber"
(paragraph 80 in fine of the report).
The Court notes that the solution adopted in the instant case by the
Utrecht Regional Court was dictated by the latter's Rules of Order
which had been approved by Royal Decree on the advice of the Hoge Raad
(see paragraph 17 above). Whether the content of those Rules is in
conformity with the Code of Civil Procedure raises a problematical
question of Netherlands law which, in the absence of any case-law
by the Hoge Raad, seemingly remains open to argument. In these
circumstances, the Court has no sufficient reason for finding that
the Utrecht Regional Court failed to act "in accordance with a
procedure prescribed by law".
49. The second formal defect alleged by the applicant stems from the
fact that the detention order of 16 December 1969 had expired before
it was renewed on 7 January 1971 by the 's-Hertogenbosch Regional Court
(see paragraph 27 above). The conclusion drawn by the applicant is
twofold: firstly, his confinement became unlawful insofar as it
continued beyond the term fixed; secondly, the order of 7 January 1971,
being out of time, was not in conformity with the Act.
The Government reply by explaining that, where there has been a
request by the public prosecutor for prolongation of the detention,
the former order remains valid until the court has decided. Section 24
of the Mentally Ill Persons Act requires the request to be filed
shortly before the lapse of the previous order but does not specify
at all when the Regional Court is to give its ruling (see paragraph 18
above). In the particular instance, the public prosecutor filed his
request on 14 December 1970, that is within the permitted period (see
paragraph 27 above).
The Court accepts the general explanation furnished by the Government.
Furthermore, as far as the specific facts are concerned, there is no
question of the delay having involved an arbitrary deprivation of
liberty: the interval of two weeks between the expiry of the earlier
order and the making of the succeeding renewal order can in no way be
regarded as unreasonable or excessive.
50. To sum up, the applicant was detained "in accordance with a
procedure prescribed by law".
C. The alleged right to treatment
51. Mr. Winterwerp argues that Article 5 para. 1 (e) (art. 5-1-e)
entails, for any individual confined as a "person of unsound mind",
the right to appropriate treatment in order to ensure that he is not
detained longer than absolutely necessary. As to his own situation,
he complains that the meetings with his psychiatrist were too short
and infrequent and that the medication administered to him was unduly
made up of tranquillisers.
The Government categorically deny these allegations.
The Court considers, as does the Commission, that a mental patient's
right to treatment appropriate to his condition cannot as such be
derived from Article 5 para. 1 (e) (art. 5-1-e). Furthermore, the
evidence contains no suggestion, as regards treatment, of a breach
of any other provision in the Convention.
D. Conclusion
52. The Court therefore concludes that Article 5 para. 1 (art. 5-1)
has not been violated.
II. On the alleged violation of Article 5 para. 4 (art. 5-4)
53. The applicant also relies on paragraph 4 of Article 5 (art. 5-4)
which provides:
"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."
The Court is required to examine this complaint even though no
infringement of paragraph 1 (art. 5-1) has been found (see
the above-mentioned De Wilde, Ooms and Versyp judgment,
pp. 39-40, para. 73).
A. As concerns the initial direction to detain made by the
burgomaster and the subsequent orders issued by the District Court
and the Regional Court
54. Mr. Winterwerp was initially detained, from 17 May until
24 June 1968, on the direction of the Amersfoort burgomaster. This
direction to detain, made in pursuance of the emergency procedure
in force at that time under section 14 of the Mentally Ill Persons
Act, was valid for three weeks but the term of the detention was
extended by the public prosecutor (see paragraph 23 above).
The applicant's subsequent confinement, on the other hand, was not
the result of administrative action. Pursuant to sections 17, 23
and 24 of the Act, the provisional detention order of 24 June 1968
was issued by the Amersfoort District Court, the detention order
of 23 December 1968 by the Utrecht Regional Court and the
succeeding renewal orders by the Utrecht and 's-Hertogenbosch
Regional Courts (see paragraphs 24 to 28 above).
55. In the above-mentioned De Wilde, Ooms and Versyp judgment of
18 June 1971 (p. 40, para. 76), the Court stated:
"Where the decision depriving a person of his liberty is one taken
by an administrative body, ... Article 5 para. 4 (art. 5-4) obliges
the Contracting States to make available to the person detained
a right of recourse to a court; but there is nothing to indicate that
the same applies when the decision is made by a court at the close
of judicial proceedings. In the latter case the supervision required
by Article 5 para. 4 (art. 5-4) is incorporated in the decision; ..."
Citing its own case-law, the Commission puts forward the view that,
as it stands, this conclusion by the Court cannot be sustained in the
case of confinement of persons on the ground of "unsound mind", at
any rate when the confinement is for an indefinite period (see
paragraph 95 of the report).
As is indicated earlier in the present judgment, the reasons initially
warranting confinement of this kind may cease to exist (see paragraph 39
in fine above). Consequently, it would be contrary to the object and
purpose of Article 5 (see paragraph 37 above) to interpret paragraph 4
thereof (art. 5-4), read in its context, as making this category of
confinement immune from subsequent review of lawfulness merely
provided that the initial decision issued from a court. The very
nature of the deprivation of liberty under consideration would appear
to require a review of lawfulness to be available at reasonable
intervals. However, as the Commission states in paragraph 95 of its
report, further examination of this question is superfluous without
first establishing whether the relevant decisions affecting
Mr. Winterwerp were in fact taken after "proceedings [before] a court"
("recours devant un tribunal") within the meaning of Article 5 para. 4
(art. 5-4).
56. Neither the burgomaster, who made the initial direction to
detain, nor the public prosecutor, who prolonged its validity, can be
regarded as possessing the characteristics of a "court". In contrast,
there is no doubt that the District Court and the Regional Courts,
which issued the various detention orders, are "courts" from an
organisational point of view: they are "independent both of the
executive and of the parties to the case" (see the above-mentioned
De Wilde, Ooms and Versyp judgment, p. 41, para. 77).
57. Nevertheless, the intervention of such a body will satisfy
Article 5 para. 4 (art. 5-4) only on condition that "the procedure
followed has a judicial character and gives to the individual
concerned guarantees appropriate to the kind of deprivation of liberty
in question"; "in order to determine whether a proceeding provides
adequate guarantees, regard must be had to the particular nature of
the circumstances in which such proceeding takes place" (see the
last-mentioned judgment, pp. 41 and 42, paras. 76 in fine and 78).
As the Government rightly stress, the "detention of persons of
unsound mind" (Article 5 para. 1 (e)) (art. 5-1-e) constitutes a
special category.
58. In the opinion of the Commission, for this category the absolute
minimum for a judicial procedure is the right of the individual
concerned to present his own case and to challenge the medical and
social evidence adduced in support of his detention (see paragraph 102
of the report). According to the Delegates, the Netherlands law
contravenes Article 5 para. 4 (art. 5-4) in granting the judge a
discretion in these matters.
In substance, the applicant supports the reasoning of the Commission.
He further contends that, in view of the special situation of persons
of unsound mind, a right for them to be legally assisted is to be
read into Article 5 para. 4 (art. 5-4).
59. According to the Government, Article 5 para. 4 (art. 5-4) does
not compel a court to hear in person an individual whose mental
condition is established on the basis of objective medical advice
to be such that he is incapable of presenting statements of any
relevance for the proceedings. The objective medical evidence
lodged over the years with the Netherlands courts shows, so they
argue, that this was the case with Mr. Winterwerp.
In their submission, the system under the Mentally Ill Persons Act
offers adequate guarantees. The review is carried out by an
independent court which has full discretionary powers to investigate
the merits of each individual case. Furthermore, the process of
review is continuous: at least once a year a court decides on the
necessity of maintaining the detention. The public prosecutor, who
has a statutory duty to ensure that no one is unlawfully confined in a
psychiatric hospital, plays an important rôle of supervision.
Finally, the medical declarations and reports required at the various
stages are subject to specific rules designed to provide safeguards
for the patient.
60. The Court does not share the Government's view.
The judicial proceedings referred to in Article 5 para. 4 (art. 5-4)
need not, it is true, always be attended by the same guarantees as
those required under Article 6 para. 1 (art. 6-1) for civil or
criminal litigation (see the above-mentioned De Wilde, Ooms and Versyp
judgment, p. 42, para. 78 in fine). Nonetheless, it is essential
that the person concerned should have access to a court and the
opportunity to be heard either in person or, where necessary, through
some form of representation, failing which he will not have been
afforded "the fundamental guarantees of procedure applied in matters
of deprivation of liberty" (see the last-mentioned judgment, p. 41,
para. 76). Mental illness may entail restricting or modifying the
manner of exercise of such a right (see, as regards Article 6 para. 1
(art. 6-1), the above-mentioned Golder judgment, p. 19, para. 39),
but it cannot justify impairing the very essence of the right.
Indeed, special procedural safeguards may prove called for in order
to protect the interests of persons who, on account of their mental
disabilities, are not fully capable of acting for themselves.
61. Under sections 17, 23 and 24 of the Mentally Ill Persons Act
as in force at the relevant times, neither the District Court nor the
Regional Court was obliged to hear the individual whose detention was
being sought (see paragraphs 14, 17 and 18 above).
As to the particular facts, the applicant was never associated, either
personally or through a representative, in the proceedings leading to
the various detention orders made against him: he was never notified
of the proceedings or of their outcome; neither was he heard by the
courts or given the opportunity to argue his case.
In this fundamental respect, the guarantees demanded by Article 5 para. 4
(art. 5-4) of the Convention were lacking both in law and in practice.
In spite of presenting some judicial features, the procedure followed
by the District Court and the Regional Court for deciding the
applications for his detention did not entitle Mr. Winterwerp "to take
proceedings ... [before] a court", within the meaning of Article 5 para. 4
(art. 5-4) (see paragraph 57 above). Without in any way underestimating
the value of the many guarantees provided under the Mentally Ill Persons
Act, the Court finds that the said procedure did not meet the
requirements of Article 5 para. 4 (art. 5-4).
B. As concerns the applicant's requests for discharge
62. The Government rightly insist on the need to take a comprehensive
view of the whole system established under the Mentally Ill Persons Act.
It therefore remains to determine whether the foregoing lacunae found
by the Court are remedied in the procedure governing requests for
discharge (section 29 of the Act; see paragraph 20 above).
63. While section 29 of the Act allows the person concerned to seek a
review of his detention, his request for discharge is not necessarily
decided on by a court. The request has to be addressed to the hospital
authorities who transmit it, if they have received an unfavourable
medical opinion, to the public prosecutor. The public prosecutor will
in principle then refer the request to the Regional Court, but in
certain cases he is not obliged to do so, in particular where it
appears manifestly impossible to grant the request. The public
prosecutor's decision can in no way be regarded as issuing from a
court for the purposes of Article 5 para. 4 (art. 5-4) of the Convention.
Admittedly, limitations as to the intervals between applications for
release may, according to the circumstances, constitute legitimate
restrictions on access to the courts by persons of unsound mind (see
paragraph 60 above). However, each time the public prosecutor
declines to communicate a request to the Regional Court on the ground
that it appears evidently ill-founded he is not merely restricting but
effectively denying the right to court proceedings as embodied in
Article 5 para. 4 (art. 5-4).
The Regional Court, in those instances where the request has come
before it for decision, is completely free in judging the desirability
of hearing the detained person. A power of this kind does not assure
the fundamental guarantees of procedure to be applied in matters of
deprivation of liberty (see paragraphs 60 and 61 above).
64. Mr. Winterwerp was in fact heard by the Regional Court in
February 1969 when it examined his first request for release (see
paragraph 30, first sub-paragraph, above). To this extent, he had
been able to take proceedings before a court in order to test the
lawfulness of his confinement.
In contrast, his subsequent requests in April 1971, July 1972 and
February 1973 were not forwarded to the Regional Court since the
public prosecutor rejected them as being devoid of any prospects of
success (see paragraph 30, second and third sub-paragraphs, above).
The public prosecutor heard Mr. Winterwerp each time and his decisions
may well have been justified on the basis of the information at his
disposal, but they cannot be qualified as decisions taken by a "court"
within the meaning of Article 5 para. 4 (art. 5-4).
C. As concerns the applicant's alleged failure to seek legal
representation
65. In paragraph 11 (b) of their memorial the Government state that a
person who has "substantial and well-founded grounds for denying the
lawfulness of his detention" is able under Netherlands legislation to
have counsel present these grounds to the court. In their submission,
Mr. Winterwerp had ample opportunity, especially during his various
periods of leave from the hospital, to consult a lawyer of his own
choosing. Since he apparently never elected to apply to the courts
through a lawyer either at the moment of the periodic review of his
confinement or as regards his requests for release, it cannot be
said, so the Government argue, that he has been refused his right "to
take proceedings" as guaranteed by Article 5 para. 4 (art. 5-4).
66. The Court does not agree with this line of reasoning. Having
"substantial and well-founded grounds for denying the lawfulness of
[the] detention" cannot be a pre-condition for access to the
proceedings contemplated by Article 5 para. 4 (art. 5-4), since this
is precisely the issue that the domestic court should decide.
Furthermore, Article 5 para. 4 (art. 5-4) does not require that
persons committed to care under the head of "unsound mind" should
themselves take the initiative in obtaining legal representation
before having recourse to a court.
The applicant cannot therefore be regarded as having failed to avail
himself of the right set forth in Article 5 para. 4 (art. 5-4) simply
because he never instructed a lawyer to represent him; in point of
fact, he certainly did claim this right in that on four occasions he
sought a review of the lawfulness of his confinement (see paragraph 64
above).
D. Conclusion
67. To sum up, the various decisions ordering or authorising
Mr. Winterwerp's detention issued from bodies which either did not
possess the characteristics of a "court" or, alternatively, failed to
furnish the guarantees of judicial procedure required by Article 5 para. 4
(art. 5-4); neither did the applicant have access to a "court" or the
benefit of such guarantees when his requests for discharge were
examined, save in regard to his first request which was rejected by
the Regional Court in February 1969. Mr. Winterwerp was accordingly
the victim of a breach of Article 5 para. 4 (art. 5-4).
68. In the light of this conclusion, the Court does not deem it
necessary to settle an issue raised in this case, namely whether the
review of "lawfulness" provided for by Article 5 para. 4 (art. 5-4)
covers not only the formal propriety of the procedure followed but
also the substantive justification of the deprivation of liberty. An
interpretation in this sense, although accepted by the Commission, the
Netherlands Government and the applicant (see paragraphs 46, 62 and
88 to 91 of the Commission's report), was contested by the United
Kingdom Government in their memorandum of 9 January 1979
(see paragraph 7 above). In any event, the Netherlands legislation
does not limit the scope of the review.
III. On the alleged violation of Article 6 para. 1 (art. 6-1)
69. The applicant makes a third complaint described as "subsidiary to,
though connected with," his other complaints. He submits that insofar
as his detention automatically divested him of the capacity to administer
his property, there had been a "determination of his civil rights and
obligations" without the guarantees of a judicial procedure as laid
down in Article 6 para. 1 (art. 6-1). The terms of Article 6 para. 1
(art. 6-1) provide:
"In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press
and public may be excluded from all or part of the trial in the interests
of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice."
70. The Commission does not feel called on to express any view on
this claim; it considers that the issue involved relates to "facts
distinct" from those originally submitted for its examination and has
not been the subject of any "detailed argument" before it (see
paragraph 116 of the report).
This being so, it has to be ascertained whether the Court in its turn
can rule on the alleged violation of Article 6 (art. 6).
71. In its judgment of 18 January 1978 in the case of Ireland v. the
United Kingdom (Series A no. 25, p. 63, para. 157), the Court explained
in the following terms the scope of its jurisdiction in contentious
matters:
"The Commission's decision declaring an application admissible
determines the object of the case brought before the Court; it is only
within the framework so traced that the Court ... may take cognisance
of all questions of fact or of law arising in the course of the
proceedings ..."
When accepting Mr. Winterwerp's application on 30 December 1975, the
Commission specified that it had examined the application "with
reference to Article 5 (art. 5) of the Convention" (see paragraph 33
above). While explaining why the Commission had not deemed it
"necessary or desirable" to deal with the Article 6 (art. 6) complaint
at the merits stage, the Delegates made it clear at the hearing that
in the Commission's thinking there could well be an issue for
consideration.
72. In the first place, the Court takes notice of the fact that at
no stage before the Commission (see the above-mentioned De Wilde, Ooms
and Versyp judgment, p. 30, para. 54), or for that matter before the
Court itself, did the Government raise any preliminary objection on
this point.
Moreover, although the complaint in question was not mentioned
explicitly in Mr. Winterwerp's application to the Commission, it has
an evident connection with the complaints he initially made. His
grievances as stated during the admissibility proceedings, where he
was not represented by a lawyer, were directed against his deprivation
of liberty: he felt he was being arbitrarily detained and he objected
that he had been neither allowed a hearing by a court nor informed of
the decisions by which his confinement was several times prolonged
(see paragraph 33 above). The new issue regarding Article 6 (art. 6),
raised by Mr. Van Loon at the merits stage before the Commission,
concerned a legal consequence that follows automatically from the
fact of compulsory confinement in a psychiatric hospital (section 32
of the Mentally Ill Persons Act; see paragraph 21 above). It is thus
intimately linked to the matters that formed the subject of
Mr. Winterwerp's original complaints declared admissible by the
Commission (see, mutatis mutandis, the Delcourt judgment of
17 January 1970, Series A no. 11, p. 20, para. 40).
The Court thus has jurisdiction to decide the claim.
73. The Government doubt whether Article 6 para. 1 (art. 6-1) is
applicable to the facts of the case. They incline to the view that
what is in issue is a question of status rather than a civil rights
and obligations as such.
The Court does not share this opinion. The capacity to deal
personally with one's property involves the exercise of private rights
and hence affects "civil rights and obligations" within the meaning
of Article 6 para. 1 (art. 6-1) (see the König judgment of
28 June 1978, Series A no. 27, p. 32, para. 95). Divesting Mr. Winterwerp
of that capacity amounted to a "determination" of such rights and
obligations.
74. The applicant lost the capacity to administer his property on
his confinement in a psychiatric hospital (see paragraph 32 above).
Clearly, in relation to the initial "emergency" detention directed
by the burgomaster (see paragraphs 12 and 23 above), there had been no
court hearing in compliance with Article 6 para. 1 (art. 6-1) of the
Convention.
The subsequent periods of confinement were, it is true, authorised at
regular intervals by the Amersfoort District Court and the Utrecht
and 's-Hertogenbosch Regional Courts. However, the present judgment
has already drawn attention to certain aspects of the procedure
followed on these occasions and, notably, to the fact that neither
in law nor in practice was Mr. Winterwerp afforded the opportunity
of being heard, either in person or through a representative (see
paragraph 61 above). What is more, that procedure was concerned
solely with his deprivation of liberty. Consequently, it cannot be
taken as having incorporated a "fair hearing", within the meaning
of Article 6 para. 1 (art. 6-1), on the question of his civil capacity.
75. By way of general argument, the Government contend that there was
no breach of Article 6 para. 1 (art. 6-1) since the provisions of the
Mentally Ill Persons Act safeguard the civil rights of the detained
person of unsound mind who, by the very reason of his proven mental
condition, needs to be protected against his own inability to manage
his affairs.
The Court does not agree with this line of reasoning. Whatever the
justification for depriving a person of unsound mind of the capacity
to administer his property, the guarantees laid down in Article 6 para. 1
(art. 6-1) must nevertheless be respected. While, as has been indicated
above in connection with Article 5 para. 4 (art. 5-4) (see paragraphs 60
and 63), mental illness may render legitimate certain limitations upon
the exercise of the "right to a court", it cannot warrant the total
absence of that right as embodied in Article 6 para. 1 (art. 6-1) (see
the above-mentioned Golder judgment, pp. 18 and 19, paras. 36, 38 and 39).
76. There has accordingly been a breach of Article 6 para. 1 (art. 6-1).
IV. On the application of Article 50 (art. 50)
77. At the hearing the applicant's lawyer suggested, by way of just
satisfaction, a five-point scheme providing basically for after-care
of his client under the supervision of the social psychiatric service,
together with an assurance that full procedural guarantees would be
provided as regards the annual renewal orders and requests for
discharge. No claim was made for material damage and no pecuniary
compensation was sought in respect of non-material damage.
The Commission's Delegates, without adding further detail, stated
their view that this represented a fair scheme of arrangement for
compensation under Article 50 (art. 50).
The Government, for their part, reserved their position.
78. Accordingly, although it was raised under Rule 47 bis of the
Rules of Court, the question of the application of Article 50 (art. 50)
of the Convention is not ready for decision. The Court is therefore
obliged to reserve the question and to fix the further procedure,
taking due account of the possibility of an agreement between the
respondent State and the applicant (Rule 50 paras. 3 and 5 of the
Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no breach of Article 5 para. 1 (art. 5-1);
2. Holds that there has been breach of Article 5 para. 4 (art. 5-4);
3. Holds that it has jurisdiction to rule on the complaint under
Article 6 para. 1 (art. 6-1);
4. Holds that there has been breach of Article 6 para. 1 (art. 6-1);
5. Holds that the question of the application of Article 50 (art. 50)
is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Commission to submit to the Court, within two months
from the delivery of this judgment, its observations on the said question
and, in particular, to notify the Court of any settlement at which the
Government and the applicant may have arrived;
(c) reserves the further procedure.
Done in English and French, the English text being authentic, at the
Human Rights Building, Strasbourg, this twenty-fourth day of October,
one thousand nine hundred and seventy-nine.
Signed: Helga Pedersen
President
Signed: Marc-André Eissen
Registrar