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You are here: BAILII >> Databases >> European Court of Human Rights >> WASSINK v. THE NETHERLANDS - 12535/86 [1990] ECHR 22 (27 September 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/22.html
Cite as: [1990] ECHR 22
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In the Wassink case*,
_______________
* Note by the Registrar: The case is numbered 21/1989/181/239.
The first number is the case's position on the list of cases referred
to the Court in the relevant year (second number). The last two
numbers indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the corresponding
originating applications to the Commission.
_______________
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:
_______________
* Note by the Registrar: The amendments to the Rules of Court which
came into force on 1 April 1989 apply to this case.
_______________
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr J. De Meyer,
Mr H.L.J. Roelvink, ad hoc judge,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 April and 27 August 1990,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 8 September 1989, within the
three-month period laid down by Article 32 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12535/86) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by
Mr Jan Wassink, a Netherlands national, on 17 October 1986.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby the Netherlands recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 §§ 1, 4 and 5 and Article 6 § 1
(art. 5-1, art. 5-4, art. 5-5, art. 6-1).
2. In response to the enquiry made in accordance with
Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer who
would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr S.K. Martens, the elected judge of Netherlands nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 20 October 1989, in the
presence of the Registrar, the President drew by lot the names
of the other five members, namely Mr Thór Vilhjálmsson,
Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr L.-E. Pettiti and
Mr N. Valticos (Article 43 in fine of the Convention and
Rule 21 § 4) (art. 43).
On 14 September 1989 Mr Martens had withdrawn from the Chamber
pursuant to Rule 24 § 2 because he had sat as a member of the
Netherlands Supreme Court (Hoge Raad) in the case. On 2 November the
Netherlands Government ("the Government") notified the Registrar of
the appointment of Mr H.L.J. Roelvink, a member of the Supreme
Court, as an ad hoc judge (Article 43 of the Convention and Rule 23)
(art. 43). Subsequently, Mr B. Walsh and Mr J. De Meyer, substitute
judges, replaced Mrs Bindschedler-Robert and Mr Valticos who were
unable to take part in the consideration of the case (Rule 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Deputy Registrar, consulted the Agent
of the Government, the Delegate of the Commission and the lawyer for
the applicant on the need for a written procedure (Rule 37 § 1).
In accordance with the orders made in consequence, the Registrar
received the Government's memorial on 28 February 1990.
5. On 13 March the Commission produced various documents, as
requested by the Registrar on the instructions of the Court.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 17 January 1990
that the oral proceedings should open on 23 April 1990 (Rule 38).
7. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Miss D.S. van Heukelom, Assistant Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr J.C. De Wijkerslooth de Weerdesteijn,
Landsadvokaat, Counsel
(b) for the Commission
Mr H. Danelius, Delegate;
(c) for the applicant
Mrs G.E.M. Later, advokate en procureur, Counsel,
Mr H.C.A. Jongeneelen, Adviser.
The Court heard addresses by Miss van Heukelom and Mr De Wijkerslooth
de Weerdesteijn for the Government, by Mr Danelius for the Commission
and by Mrs Later for the applicant.
AS TO THE FACTS
I. Particular circumstances of the case
8. Mr Jan Wassink, a Netherlands national, currently resides at
Klazienaveen in the Netherlands.
9. On 15 November 1985 the Burgomaster of Emmen ordered
Mr Wassink's emergency confinement in a psychiatric hospital pursuant
to section 35 (b) of the Mentally Ill Persons Act 1884
(Krankzinnigenwet, see paragraph 16 below). His decision was based on
a medical report drawn up the same day by a psychiatrist, Dr S.,
according to which there were serious grounds for believing that the
applicant suffered from a mental disorder representing an immediate
danger to himself, to others and to public order. Mr Wassink had
already threatened members of his family and attacked a neighbour in
her house.
10. On 19 November 1985 the Crown Prosecutor (Officier van
Justitie) requested the President of the District Court
(Arrondissementsrechtbank) of Assen to extend the applicant's
confinement. In addition to the file attached to this application,
the President received a police report dated 18 November 1985
containing the statements of various witnesses and of Mr Wassink's
wife, and a memorandum, of the same date, setting out the opinion of
the applicant's doctor, Dr R.
11. On 20 November, in the presence of Mr Jongeneelen,
Mr Wassink's "confidential counsellor" (patientenvertrouwenspersoon),
the District Court President interviewed the applicant together with a
psychiatrist, Dr V. He then consulted three other persons by
telephone - Dr R., Mr Wassink's wife and another doctor, Dr H. - and
made a brief note of their statements. Again by telephone, he gave a
summary of the resulting information to Mr Jongeneelen.
In a letter of 9 January 1986, Mr Jongeneelen told the applicant's
lawyer that this conversation, which had lasted some ten minutes, had
taken place at his request and had given him (Mr Jongeneelen) an
opportunity to put forward his views; a few days after the
conversation, the President had communicated the whole file to him.
12. On 25 November 1985 the President ordered the continuation of
the applicant's confinement pursuant to sections 35 (i) and 35 (j) of
the Mentally Ill Persons Act. Referring to the medical report by
Dr S. (see paragraph 9 above) and the statements of Mr Wassink,
Dr. V. and the three persons whom he had questioned by telephone (see
paragraph 11 above), he considered that, because of his mental
illness, the applicant was an immediate danger to himself, to others
and to public order. The President added that it was clear from the
statements which he himself had obtained and those contained in the
police report of 18 November 1985 that Mr Wassink had already caused
considerable disturbance to his neighbours. It was therefore to be
feared that, as he was unaware of the effect of his actions on others,
he would continue his unacceptable behaviour if he were to return
home.
13. Mr Wassink left the hospital on 20 December 1985.
On 31 December the President of the District Court sent to the
applicant's lawyer, at the latter's request, various documents from
the file, including the note that he had made after interviewing
Mr Wassink and hearing the views of the persons whom he had questioned
by telephone. He explained that circumstances relating to the
organisation of the court made it impossible to arrange for a
registrar to be present in every case of emergency confinement. There
were three large psychiatric hospitals within the court's jurisdiction
and it was a small court.
14. On 24 January 1986 the applicant filed an appeal on points of
law with the Supreme Court (Hoge Raad) against the order of
25 November 1985. He complained that the President of the District
Court had not specified sufficiently the nature of the danger which
his mental illness represented for himself and for public order, that
the President had held a hearing without a registrar's being present
to draw up a record and, finally, that, before making the order, the
President had failed to communicate to him the text of the statements
of the persons whom he had telephoned, thereby depriving the applicant
of any opportunity to react thereto.
15. In his submissions of 11 March 1986, the Attorney General at
the Supreme Court (Procureur-Generaal bij de Hoge Raad) expressed the
view that the second of these grounds (and only the second) was
well-founded. However, on 18 April 1986 the Supreme Court declared
the appeal inadmissible, finding that Mr Wassink no longer had any
interest in having the contested order quashed since the maximum
period for an emergency confinement had already expired.
II. Relevant domestic law and practice
A. Legislation on confinement
16. In the Netherlands the confinement of mentally ill persons is
governed by an Act of 27 April 1884 on State Supervision of Mentally Ill
Persons, commonly known as the Mentally Ill Persons Act
(Krankzinnigenwet, "the 1884 Act").
17. Sections 35 (b) to 35 (j) make provision for the emergency
committal procedure which was followed in the present case.
Where there are serious grounds for believing that a person represents
an immediate danger to himself, to others or to public order on
account of mental illness, the burgomaster of the municipality in
which he resides is empowered to order his compulsory committal
(inbewaringstelling) to a psychiatric hospital (section 35 (b)).
In so doing, the Burgomaster is required first to seek the opinion of
a psychiatrist or, if that proves impossible, of another medical
practitioner (section 35 (c)). As soon as he has ordered a
confinement, he must inform the Crown Prosecutor and transmit to him
the medical certificate on which he based his decision (section 35
(e)). The Crown Prosecutor has then, in his turn, to forward the
certificate to the President of the District Court, not later than the
following day, requesting, where appropriate, the continuation of the
confinement (section 35 (i)). The President must give his decision
within three days. An order to continue the confinement is valid for
three weeks, but the President may renew it for a second period of the
same length if, before the expiry of the first period, an application
for judicial authorisation for confinement (rechterlijke machtiging,
sections 12 and 13) is made (section 35 (j)).
18. By virtue of Article 72 of Regulation I (Reglement I) made in
pursuance of the Judiciary (Organisation) Act (Wet op de Rechterlijke
Organisatie), "hearings and examinations" ("terechtzittingen en
verhoren") must be conducted in the presence of a registrar whose duty
it is to draw up a record of the proceedings.
B. Case-law concerning confinement
19. The Netherlands Supreme Court has held that, in view of the
importance of having up-to-date information as a basis for a
confinement decision, the judge may be justified in using information
obtained by telephone. He must, however, communicate any such
information to the person concerned or his counsel in order to enable
them to comment on it. The Supreme Court has quashed a number of
decisions on account of a failure to comply with this requirement
(see, for example, the judgments of 4 January, 10 May and 7 June 1985,
Nederlandse Jurisprudentie (NJ), nos. 336, 665 and 718).
It appears from a judgment of 1 December 1989 (NJ 1990, no. 438) that
the case-law on the subject may be summarised as follows:
1. if a judge obtains information by telephone, he must ensure that
it is taken down in writing;
2. (a) in principle, the judge must not make use of such
information unless he has advised the person concerned or his counsel
of its substance and has given them sufficient opportunity to comment
on it;
(b) this may also be done by telephone;
3. the decision or the documents of the court proceedings must show
that the requirements referred to under 2 (a) have been met;
4. only under special circumstances may the judge decide not to
observe the rule referred to under 2 (a);
5. in such cases the reasons must be stated so as to enable the
Supreme Court to assess whether rule 4 has been complied with;
6. if a statement taken by telephone contains information concerning
points that are essential for the decision and the judge has not
unequivocally discounted that statement in his decision, it must be
assumed that the judge made use of that information when reaching his
decision.
20. On the question of the presence and the role of the registrar
during hearings held pursuant to the 1884 Act, the Supreme Court has
stated as follows:
"Having regard to the serious nature of decisions taken under the
Mentally Ill Persons Act, to the requirements which have accordingly
to be complied with in respect of the statement of the reasons on
which they are based and to the importance of its being possible to
review, in cassation proceedings, their conformity with those
requirements, a record, signed by the registrar, must be made of any
interviews effected and any questioning at the hearing. A copy of the
record must be given to the person concerned if he so requests."
(judgment of 18 May 1984, NJ 1984, no. 514)
In a judgment of 14 February 1986 (NJ 1986, no. 400), the Supreme
Court held that, if these conditions were not complied with, the
decision ordering the confinement was to be set aside, even though the
person concerned had not indicated what consequences the failure to
observe these requirements actually had in relation to him.
PROCEEDINGS BEFORE THE COMMISSION
21. In his application (no. 12535/86) lodged with the Commission
on 17 October 1986, Mr Wassink alleged that his confinement in a
psychiatric hospital had not been ordered "in accordance with a
procedure prescribed by law" and had not been "lawful", within the
meaning of Article 5 § 1 (art. 5-1) of the Convention. He also
complained of a breach of paragraphs 4 and 5 of Article 5 (art. 5-4,
art. 5-5), alleging that he had not been given the possibility of
having the lawfulness of the order of 25 November 1985 reviewed
"speedily" by a court, nor obtained compensation in respect of this
breach. Finally, he claimed that, in violation of Article 6 § 1
(art. 6-1), he had not received a fair trial in proceedings to obtain
a decision on "contestations" (disputes) relating to his civil rights
and obligations.
22. The Commission declared the application admissible
on 9 December 1987. In its report of 12 July 1989 (Article 31)
(art. 31), it expressed the opinion that there had been a violation of
Article 5 § 1 (art. 5-1) (unanimously), and of Article 5 §§ 4 and 5
(art. 5-4, art. 5-5) (by 17 votes to 1), but not of Article 6 § 1
(art. 6-1) (unanimously). The full text of its opinion and of the
partly dissenting opinion contained in the report is reproduced as an
annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment (volume 185-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (art. 5-1)
23. The applicant claimed to be the victim of a violation of
Article 5 § 1 (art. 5-1) which, in so far as he relied on it, provides
as follows:
"1. 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 ...;
..."
He alleged that the order extending his confinement in a psychiatric
hospital had not been made in accordance with a procedure prescribed
by law, which rendered his detention unlawful.
In the first place the President of the Assen District Court had not
established that the applicant was, on account of mental illness, an
immediate danger to himself, to others or to public order.
Moreover, as he had failed to read to Mr Wassink or to the latter's
"confidential counsellor" the notes which he had drawn up following
his telephone conversations, he had not complied with the conditions
which the Supreme Court had laid down for the use of information
obtained in this way (see paragraphs 11 and 19 above).
Finally, the fact that no registrar had been present at the hearing
had, he claimed, infringed Article 72 of Regulation I made in
pursuance of the Judiciary (Organisation) Act (see paragraphs 18 and
20 above).
24. On the question whether detention is "lawful", including
whether it complies with "a procedure prescribed by law", the
Convention refers back essentially to national law and lays down the
obligation to conform to the substantive and procedural rules thereof.
However, it requires in addition that any deprivation of liberty
should be consistent with the purpose of Article 5 (art. 5),
namely to protect individuals from arbitrariness (see, as the most
recent authority, the van der Leer judgment of 21 February 1990,
Series A no. 170, p. 12, § 22).
25. As regards the assessment of whether there is a "danger" for
the purposes of section 35 (b) of the 1884 Act, it is in the first
place for the national authorities to evaluate the evidence adduced
before them in deciding whether an individual should be detained as a
"person of unsound mind"; the Court's task is to review under the
Convention the decisions of those authorities (see the Winterwerp
judgment of 24 October 1979, Series A no. 33, p. 18, § 40, and the
Luberti judgment of 23 February 1984, Series A no. 74, p. 12, § 27).
In this instance the President of the District Court had available to
him four different medical opinions: the report of Dr S., the
opinion of Dr V., whose views he had heard at the hearing, and those
of the two doctors whom he had consulted by telephone (see
paragraphs 9 and 11 above); he was also in a position to base his
decision on the statements of the applicant's wife and on the police
report of 18 November 1985 (see paragraph 10 above).
Like the Commission, the Court sees no grounds for questioning the
weight of the evidence on which the President relied to reach his
decision that it was necessary to extend Mr Wassink's confinement.
26. Secondly, the President did not read to Mr Jongeneelen the
notes which he had drawn up following his telephone conversations, but
informed him of the substance of the statements which he had thereby
obtained; the applicant's "confidential counsellor" did not fail to
comment on them. In his submissions of 11 March 1986 the Attorney
General at the Supreme Court, referring to the case-law of the Supreme
Court, expressed the view that the relevant rules of procedure had
been complied with (see paragraph 15 above).
Accordingly, no breach of Article 5 § 1 (art. 5-1) of the Convention
has been established under this head.
27. On the other hand, the fact that no registrar was present at
the hearing infringed Article 72 of Regulation I made in pursuance of
the Judiciary (Organisation) Act (see paragraph 18 above) and this was
also the opinion of the Attorney General.
Consequently, there was in this respect a failure to comply with a
"procedure prescribed by law", which amounted to a breach of
Article 5 § 1 (art. 5-1) of the Convention. Indeed the Government
conceded this.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)
28. The applicant also relied on Article 5 § 4 (art. 5-4),
which is worded as follows:
"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."
According to the applicant, by failing to read to him or to his
"confidential counsellor" the statements which he had obtained by
telephone and on which he was proposing to base his decision, the
President of the District Court prevented him from contesting them.
Mr Wassink alleged further that the Supreme Court had deprived him of
his sole remedy against the contested order by finding his appeal on
points of law inadmissible because he lacked the requisite interest
(see paragraph 15 above).
29. In the Government's opinion, the review required by
Article 5 § 4 (art. 5-4) was in this case incorporated in the decision
depriving the applicant of his liberty because that decision was taken
by a judicial body (see, among other authorities, the De Wilde, Ooms
and Versyp judgment of 18 June 1971, Series A no. 12, p. 40, § 76, and
the Bouamar judgment of 29 February 1988, Series A no. 129, pp. 22-23,
§ 56).
30. The President of the District Court is undoubtedly a "court"
from the organisational point of view, but the European Court has
consistently held that the intervention of a single body of this kind
will satisfy Article 5 § 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 proceedings take place"
(see, inter alia, the Bouamar judgment, cited above, p. 23, § 57).
31. Mr Wassink maintained that he had not had the benefit of such
guarantees. By providing the applicant's "confidential counsellor"
only with a verbal summary of the statements obtained by telephone,
the President of the Assen District Court had deprived him of an
appropriate opportunity to comment on them. Such a method of
proceeding moreover gave rise to the danger that certain information
might be ignored or misinterpreted. Finally, it prevented the person
concerned from putting additional questions to the persons heard in
this way. The wording of the order of 25 November 1985 showed clearly
that it was based on the statements in question (see paragraph 12
above).
32. The Commission shared this view in substance. The Government,
on the other hand, stressed how important it was for a judge having to
take a decision concerning confinement to have the possibility of
obtaining up-to-date information by telephone. This was, in their
opinion, particularly true because the order had to be made within
three days and, furthermore, was valid only for three weeks.
33. The Court is fully aware of the risks inherent in the
questioning by telephone of Mr Wassink's wife and two doctors. It
notes nevertheless that it took place on the initiative and under the
responsibility of an independent judicial officer acting under an
emergency procedure whose effects were moreover limited as to their
duration. The President clearly did not read out the text of his
notes to the applicant's "confidential counsellor", but he gave to him
a summary of his conversations and told him that they had not produced
any new information. In so doing, he gave him an opportunity to
comment on them. Indeed Mr Jongeneelen did so, as is shown by his
correspondence with Mr Wassink's lawyer.
34. It follows that, even though the "procedure prescribed by law"
within the meaning of Article 5 § 1 (art. 5-1) was not strictly
followed as regards one aspect (see paragraph 27 above) - albeit not
an essential one in this instance -, the judge nevertheless reviewed
at the outset the lawfulness of the detention as such to an extent
consistent with the requirements of paragraph 4 (art. 5-4).
35. Accordingly, it is not necessary to determine whether the
remedies available against the order of the President of the Assen
District Court satisfied the conditions required.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 (art. 5-5)
36. The applicant alleged a violation of Article 5 § 5
(art. 5-5), according to which:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
In his opinion, the sole provision of Netherlands law which he could
have relied on in order to obtain compensation, Article 1401 of the
Civil Code, only applied where damage could be shown. In this case,
the existence of damage would have been almost impossible to prove
because it could not be affirmed with absolute certainty that
proceedings conducted in conformity with Article 5 (art. 5) of the
Convention would have led to the desired result.
37. Unlike the Commission, the Government did not subscribe to
this view. They considered that the right to compensation guaranteed
in paragraph 5 of Article 5 (art. 5-5) was restricted to persons who had
sustained damage, whether pecuniary or non-pecuniary, on account of
the violation of another of the paragraphs of the Article; this was
clear, in particular, from the use of the word "victim". Article 1401
of the Civil Code was therefore fully consistent with the Convention.
38. In the Court's view, paragraph 5 of Article 5 (art. 5-5) is
complied with where it is possible to apply for compensation in
respect of a deprivation of liberty effected in conditions contrary to
paragraphs 1, 2, 3 or 4 (art. 5-1, art. 5-2, art. 5-3, art. 5-4).
It does not prohibit the Contracting States from making the award of
compensation dependent upon the ability of the person concerned to
show damage resulting from the breach. In the context of
Article 5 § 5 (art. 5-5), as for that of Article 25 (art. 25) (see,
inter alia, the Huvig judgment of 24 April 1990, Series A no. 176-B,
pp. 56-57, § 35), the status of "victim" may exist even where there is
no damage, but there can be no question of "compensation" where there
is no pecuniary or non-pecuniary damage to compensate.
More generally, the evidence provided to the Court does not lead to
the conclusion that an action based on Article 1401 of the Netherlands
Civil Code would have failed to satisfy the requirements of
Article 5 § 5 (art. 5-5) of the Convention. This finding is without
prejudice to the Court's competence under Article 50 (art. 50) in the
matter of awarding compensation by way of just satisfaction (see the
Brogan and Others judgment of 29 November 1988, Series A no. 145-B,
p. 35, § 67).
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
39. Before the Commission the applicant also relied on
Article 6 § 1 (art. 6-1), but at the hearing of 23 April 1990 he
withdrew this complaint. The Court does not consider it necessary to
examine the question of its own motion.
V. APPLICATION OF ARTICLE 50 (art. 50)
40. According to Article 50 (art. 50) of the Convention:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
41. Mr Wassink claimed in the first place 15,000 guilders for
damage. He had, he maintained, especially suffered from having his
appeal on points of law declared inadmissible and, as a result, being
deprived of any judicial review of the lawfulness of the order which
had extended his confinement.
In the Government's contention, the damage claimed was not derived
from any of the alleged violations of Article 5 (art. 5) and could not
therefore give rise to just satisfaction.
The sole breach found by the Court in this case lay in the absence of
a registrar at the hearing before the President of the District Court.
It may have left the applicant with a certain feeling of frustration,
but not to the extent of justifying the award of compensation; the
finding of a violation of Article 5 (art. 5) constitutes in itself just
satisfaction in this respect.
42. The applicant also sought an amount of 11,897.40 guilders for
the expenses and fees of the lawyer who represented him before the
Commission and the Court.
The Government argued that Mr Wassink, who had received legal aid in
Strasbourg, had not shown that he had to pay his lawyer additional
fees whose reimbursement he was entitled to request.
In the Court's view, the mere fact that the applicant was granted
legal aid does not mean that he was not under an obligation to pay the
fee note drawn up by his counsel and attached to the claim submitted
under Article 50 (art. 50). In the absence of proof to the contrary,
the Court must accept that Mr Wassink is required to pay his lawyer
the amount set out in the fee note, from which the sums received from
the Council of Europe are to be deducted. The amount in question is
consistent with the criteria laid down in the Court's case-law
(see, inter alia, the Belilos judgment of 29 April 1988, Series A
no. 132, p. 33, § 79). The applicant should therefore be awarded
11,897.40 guilders, less the 8,657.50 French francs already paid as
legal aid.
FOR THESE REASONS, THE COURT
1. Holds by six votes to one that there has been a violation of
paragraph 1 of Article 5 (art. 5-1);
2. Holds by six votes to one that there has been no violation of
paragraph 4 of Article 5 (art. 5-4);
3. Holds unanimously that there has been no violation of paragraph 5
of Article 5 (art. 5-5);
4. Holds unanimously that it is not necessary also to examine the case
under Article 6 § 1 (art. 6-1);
5. Holds unanimously that the Netherlands is to pay to the applicant
11,897.40 guilders (eleven thousand eight hundred and
ninety-seven guilders and forty cents) less 8,657.50 French francs
(eight thousand six hundred and fifty-seven francs and fifty centimes)
under Article 50 (art. 50);
6. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 27 September 1990.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and
Rule 53 § 2 of the Rules of Court the following dissenting opinions
are annexed to this judgment:
(a) dissenting opinion of Mr Ryssdal;
(b) dissenting opinion of Mr Walsh.
Initialled: R. R.
Initialled: M.-A. E.
DISSENTING OPINION OF JUDGE RYSSDAL
With regret I find that I am unable to agree with the majority as
regards the violation of paragraph 4 of Article 5 (art. 5-4).
There can be no doubt whatsoever that the President of the District
Court constituted a "court" from the organisational point of view; as
such he was qualified to carry out the review, required by
Article 5 § 4 (art. 5-4), of the decision of the Burgomaster of Emmen.
However, in the course of the proceedings conducted before him a
breach of paragraph 1 of Article 5 (art. 5-1) occurred (see
paragraph 27 of the judgment). The notion of "lawfulness" under
paragraph 1 (art. 5-1) has the same meaning as in paragraph 4
(art. 5-4) (see notably the Brogan and Others judgment of
29 November 1988, Series A no. 145, pp. 34-35, § 65) and the review
provided for in the latter provision must be sufficiently broad to
cover each of the conditions which are indispensable for the
lawfulness of the detention of an individual under paragraph 1
(art. 5-1) (see, inter alia, the Ashingdane judgment of 28 May 1985,
Series A no. 93, p. 23, § 52). Accordingly, it should have been
possible to appeal against the decision of the President of the
District Court in order to have the violation established and
redressed (see the van der Leer judgment of 21 February 1990,
Series A no. 170, p. 14, § 33), notwithstanding the non-essential
nature of that violation. As there is no evidence that such a
possibility existed, I conclude that, in addition to the violation of
paragraph 1 (art. 5-1), there has also been a violation of paragraph 4
of Article 5 (art. 5-4). This being so, I do not consider it
necessary to express a view on the question dealt with in
paragraphs 31 to 33 of the judgment.
DISSENTING OPINION OF JUDGE WALSH
As the facts of the case are set out in the judgment of the Court it
is not necessary for me to repeat them at any length.
The Court has decided that there has been a breach of Article 5 § 1
(art. 5-1) on the ground that the applicant was deprived of his
liberty other than "in accordance with a procedure prescribed by law",
("sauf ... selon les voies légales").
The procedural violation in question was the absence of a registrar
from the hearing of the matter before the President of the District
Court. Article 72 of Regulation I made pursuant to the Judiciary
(Organisation) Act prescribes that "hearings and examinations" must be
conducted in the presence of a registrar whose duty it is to draw up a
record of the proceedings. This record is not, nor is it intended to
be, a verbatim record of the proceedings.
The Netherlands Supreme Court has held in another case that for the
proper carrying out of judicial review "a record, signed by the
registrar, must be made of any interviews effected and any questioning
at the hearing" and "a copy of the record must be given to the person
if he so requests".
In fact the record must also be signed by the President of the Court.
In the present case a record was made by the President of the Court
himself because of the absence of the registrar. Apparently this
absence would be regarded by the Supreme Court as a sufficient ground
for setting aside the order of the District Court. The present
applicant's appeal to the Supreme Court was not in fact decided. The
applicant had already been released from confinement before he
instituted proceedings in the Supreme Court. While one can understand
the concern of the Supreme Court for certainty in the record to be
reviewed it does not follow that the non-observance of the
requirement of the presence and signature of the registrar is
necessarily a breach of Article 5 § 1 (art. 5-1).
The procedure followed in the present case was the one prescribed by
the law in every respect save that of the presence of the registrar.
The registrar had no part to play in the making of the judicial
decision.
The judicial decision of the President of the District Court in the
matter before him, which was in effect a recourse from the order of
the Burgomaster, was in accordance with Article 5 § 4 (art. 5-4) and
was one made by a properly constituted tribunal within the meaning of
Article 6 (art. 6) and the decision made by the tribunal cannot be
said to be in any way in breach of the Convention.
The registrar is a recording agent which is a function totally
different from that of adjudication. There has been no evidence to
support any suggestion that there was not "a fair trial". There was a
record of the proceedings made by the President of the Court. I
cannot agree that simply because this would not be regarded as a
sufficient record for the purposes of cassation in the Netherlands
Supreme Court it must follow that the procedure leading to the
adjudication in the District Court was necessarily, or in the events
which have happened, in violation of Article 5 § 1 (art. 5-1). The
procedural omission in question did not go to the substance of the
matter and did not touch upon any matter fundamental to the
adjudication of the President of the District Court.
In my opinion there was no breach of Article 5 § 1 (art. 5-1).