European Court of Human Rights

Mr. Balladore Pallieri and then, as from 25 September 1979, Mrs. Pedersen assumed the office of President of the Chamber (Rule 2l para. 5).

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.

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.

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.

AS TO THE FACTS

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

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

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

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.

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).

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

The patient need not be notified of the application or request or of the proceedings relating thereto.

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

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

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

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

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

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.

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.

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.

"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.

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.

PROCEEDINGS BEFORE THE COMMISSION

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.

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"

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).

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).

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).

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.

B. "In accordance with a procedure prescribed by law"

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.

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.

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).

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".

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.

C. The alleged right to treatment

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

II. ON THE ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)

"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

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).

"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).

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.

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).

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.

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.

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

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).

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

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

III. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

"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."

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).

"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.

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.

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.

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.

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).

IV. ON THE APPLICATION OF ARTICLE 50 (art. 50)

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.

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.

Helga Pedersen

President

Marc-André Eissen

Registrar