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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> KEUS v. THE NETHERLANDS - 12228/86 [1990] ECHR 27 (25 October 1990)
URL: http://www.bailii.org/eu/cases/ECHR/1990/27.html
Cite as: [1990] ECHR 27, 13 EHRR 700, (1991) 13 EHRR 700
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In the Keus case*,
_______________
* Note by the Registrar:
The case is numbered 30/1989/190/250. 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:
_______________
Notes by the Registrar:
* As amended by Article 11 of Protocol No. 8 (P8-11) to the Convention
which came into force on 1 January 1990.
** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr N. Valticos,
Mr S.K. Martens,
Mr I. Foighel,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 June and 28 September 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 13 December 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. 12228/86) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by
Mr Jacobus Keus, a Netherlands national, on 13 June 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 or not
the facts of the case disclosed a breach by the respondent State of
its obligations under Article 5 §§ 1, 2, 4 and 5 and Article 6 §§ 1
and 3 (art. 5-1, art. 5-2, art. 5-4, art. 5-5, art. 6-1,
art. 6-3) of the Convention.
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. On 19 December 1989 the President of the Court decided that,
pursuant to Rule 21 § 6 and in the interests of the proper
administration of justice, this case and the Koendjbiharie case*
should be examined by the same Chamber. The Chamber to be constituted
for this purpose 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 27 January 1990, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr L.-E. Pettiti, Mr B. Walsh,
Mr R. Bernhardt, Mr N. Valticos, Mrs E. Palm and Mr I. Foighel
(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).
Subsequently, Mr A. Spielmann, substitute judge, replaced Mrs Palm,
who was unable to take part in the consideration of the case
(Rule 24 § 1).
_______________
* Note by the Registrar: 27/1989/187/247.
_______________
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, after having consulted - through the Registrar -
the Agent of the Netherlands Government ("the Government"), the
Delegate of the Commission and the applicant's representative
(Rule 38), all of whom had decided not to submit memorials (Rule 37 § 1),
directed that the oral proceedings should open on 27 June 1990. The
applicant's claims under Article 50 (art. 50) of the Convention
reached the registry on 28 May.
5. 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,
Mrs R.E. van Galen-Herrmann, Ministry of Justice, Adviser;
(b) for the Commission
Mr H. Vandenberghe, Delegate;
(c) for the applicant
Mrs G.E.M. Later, advokate en procureur, Counsel,
Mr M.T.M. Zumpolle, Adviser.
The applicant was also present.
The Court heard addresses by Miss van Heukelom and Mr De Wijkerslooth
de Weerdesteijn for the Government, by Mr Vandenberghe for the
Commission and by Mrs Later for the applicant, as well as their
answers to its questions.
AS TO THE FACTS
I. Particular circumstances of the case
6. Mr Jacobus Keus, a Dutch national, currently resides in the
Netherlands.
7. On 15 December 1981 the District Court
(Arrondissementsrechtbank) of The Hague sentenced him, for murder and
a number of attempts to commit armed robbery, to four years'
imprisonment, to be followed by two years' placement at the
Government's disposal (see paragraph 12 below). The judgment became
final on 30 December 1981.
8. While he was serving his sentence, the applicant absconded on
several occasions; he remained at liberty a total of 109 days.
On 1 May 1984 the Minister for Justice ordered his conditional release
with effect from 3 May.
This measure was however purely formal because the applicant had been
placed in a psychiatric clinic on 18 February 1983. He absconded
regularly from this establishment too. In its decision extending the
confinement (see paragraph 10 below), the court noted that, according
to the director of the clinic, Mr Keus had spent, since his admission,
approximately 19 months at the clinic and 13 months outside.
On 22 May 1984 the Ministry of Justice - in accordance with an
administrative practice not provided for by law - wrote to the Crown
Prosecutors of The Hague and of Utrecht, and to the director of the
clinic, informing them that, unless extended, the applicant's
placement would come to an end in 1986, on 14 January and not 3 May.
The applicant was, in the Ministry's view, to be regarded as having
been held at the Government's disposal during the periods which he had
spent outside prison following his escapes. Neither Mr Keus nor his
counsel had any knowledge of this letter.
On 14 October 1985 Mrs Later informed the District Court of The Hague
that she would be the applicant's lawyer in the proceedings relating
to the extension of the confinement. It appeared from her letter that
she expected the proceedings to open in April or May 1986.
On 29 November 1985 the applicant escaped from the clinic once more.
According to the authorities, he remained in hiding.
9. On 4 December 1985 the Crown Prosecutor requested the District
Court of The Hague to extend by two years the applicant's placement;
he informed neither Mr Keus nor his lawyer of this.
By a letter dated 18 December 1985, Mr Keus's lawyer requested the
Minister for Justice to order her client's release.
10. On 7 January 1986, following a hearing which was attended only
by a member of the hospital staff and the Crown Prosecutor, the court
granted the request for an extension. According to the Government,
the Crown Prosecutor had instructed the police to serve on Mr Keus a
summons to appear at this hearing, but they had not succeeded in
contacting him.
Mr Keus was notified of the decision - which described him as having
no known address - on 19 January, when he telephoned the clinic. After
having returned to it, he was held there from 22 February in pursuance
of the court's order.
11. By a letter of 20 August 1986 the Secretary of State for
Justice informed the applicant's lawyer that the order placing her
client at the Government's disposal would not be lifted in the
immediate future.
Having observed a significant improvement in his behaviour, the
authorities released him provisionally in January 1987. In 1988 the
Crown Prosecutor decided not to seek a second extension of the
placement at the Government's disposal.
II. Relevant domestic law and practice
12. Since 1928 the Netherlands Criminal Code (Wetboek van
Strafrecht) has contained special provisions applying to persons
suffering from a mental deficiency or mental illness. The provisions
were substantially amended by an Act of 19 November 1986, which came
into force on 1 September 1988. According to Article 37 (as
applicable to the events in the present case), the perpetrator of an
offence which cannot be imputed to him because he suffers from a
mental deficiency or mental illness is not liable to punishment. If
the protection of public order so requires, the court may direct that
such a person be placed at the Government's disposal so that he can
receive treatment at the Government's expense.
Such a measure may also be taken in conjunction with a criminal
sanction if the convicted person's responsibility was merely
diminished at the time of the offence (Article 37 (a)).
Under Article 37 (b) § 1, the placement lasts for two years unless the
Government terminates it earlier. This period commences as soon as
the judgment ordering it has become final (paragraph 2 thereof); it is
suspended by any other deprivation of liberty resulting from a
judicial decision (paragraph 3, according to the most widely accepted
interpretation).
13. The court which makes the initial order may extend the
confinement, on each occasion for one or two years
(Article 37 (b) § 2), on an application by the crown prosecutor,
himself acting on the opinion of the director of the clinic. To this
end, the crown prosecutor has to submit an application to the court in
question not more than two months and not less than one month before
the placement period is due to expire (Article 37 (f) § 1). According
to case-law, failure to comply with this requirement renders the
application inadmissible.
The prosecutor must attach to his application a copy of the clinic's
report on the physical and mental health of the person concerned
together with a reasoned declaration - preferably by the doctor
treating the patient - on the appropriateness of extending the
confinement (Article 37 (f) § 2).
14. Article 37 (g) governs the procedure to be followed for the
examination of the application: if possible the court is to hear the
person in question and, if it considers additional information to be
necessary, interview witnesses and experts. The crown prosecutor and
the lawyer of the person confined may attend any hearing, of which a
record is drawn up.
By a circular of 16 April 1980, the Minister for Justice issued
instructions to the courts to hear the person concerned before
extending his placement.
15. By virtue of Article 37 (h) § 1, the court is to give its
decision within two months following the lodging of the application.
However, Article 37 (b) § 4 states that the person concerned remains
at the Government's disposal until the court has ruled on the
extension. In a judgment of 14 June 1974 (Nederlandse Jurisprudentie
(NJ) 1974, no 436), the Supreme Court (Civil Division) took the view
that the last-mentioned rule applied even if the court exceeded the
two-month time-limit, which was merely of an exhortatory nature.
While recognising how inconvenient this interpretation might be for
the person concerned, the court noted that this did not mean that the
latter was entirely without a remedy against such a breach:
"if, once the time-limit laid down in Article 37 (h) has expired, the
decision provided for in that provision is arbitrarily delayed, the
Government may find itself required, if necessary as a result of legal
action by the person confined, to terminate the placement extended
pursuant to Article 37 (b) § 4."
By a judgment of 29 September 1989 (NJ 1990, no. 2) the Supreme Court
(Civil Division) gave the following clarification regarding the 1974
decision: in itself, the failure to comply with the time-limit laid
down in Article 37 (h) does not give rise to an obligation to
terminate the placement; the existence of such an obligation depends
in particular on the extent to which, and the reasons for which, the
time-limit is exceeded as well as the personal and social interests at
stake.
According to a judgment of the Supreme Court (Civil Division)
of 9 January 1970 (NJ 1970, no. 240), it falls to the court to decide
to what extent it must state its reasons in the order extending the
confinement, which is neither delivered in public nor appealable
(Article 37 (h) § 2), but is served on the person concerned
(Article 37 (h) § 3).
16. A person placed at the Government's disposal may at any time
request the Minister for Justice to revoke the measure. By virtue of
Article 37 (e), the Minister may terminate the confinement at any
moment, unconditionally or conditionally, if personal or material
circumstances justify such a decision.
In the above-mentioned extract from its judgment of 14 June 1974 (see
paragraph 15 above), the Supreme Court was clearly alluding to
interlocutory proceedings (kort geding) before the President of the
District Court. Thus it confirmed the fundamental role of these
proceedings in the Netherlands legal system and practice. The
importance of such a remedy in the specific field which is the subject
of the present case is moreover illustrated by the three judgments of
the Court of Cassation referred to in paragraph 15 above. They were
all delivered in interlocutory proceedings, two of which resulted in
the President of the District Court ordering the immediate release of
the person concerned. In addition, in the proceedings concluded by
the judgment of 9 January 1970, the State had argued that the
President lacked jurisdiction; its objection was dismissed in
accordance with a consistent line of cases decided in interlocutory
proceedings and it did not appeal. The Koendjbiharie case also shows
the extent to which the "kort geding" constitutes an obvious remedy in
the field in question (see the Koendjbiharie judgment given this day,
Series A no. 185-B, pp. 35-37, §§ 11 and 14).
Furthermore the adversarial principle is, according to the Supreme
Court's decisions, one of the basic principles of Netherlands
procedural law. At the time of the events in issue in the present
case, the Supreme Court had already drawn striking inferences
therefrom. In a judgment of 27 November 1981 (NJ 1983, no. 56), it
ruled admissible an appeal against an order extending the confinement
of a "mentally ill person", on the ground that it had been made
without hearing the person concerned. It did so, having regard to the
importance of the principle in question, in spite of the statutory
rule restricting the right of appeal to persons heard at first
instance. Similarly, by a judgment of 29 March 1985 (NJ 1986,
no. 242), it declared admissible, notwithstanding the express
provisions of the law, the appeal against a decision ordering the
provisional hearing of witnesses, on the ground that the appellant had
not been heard first.
PROCEEDINGS BEFORE THE COMMISSION
17. In his application of 13 June 1986 to the Commission
(no. 12228/86) Mr Keus criticised the proceedings to extend his
confinement. He alleged that neither he nor his lawyer had been
informed of these proceedings - his lawyer being accordingly prevented
from representing him - and that the District Court had not heard him.
He also complained that he had been unable to challenge in the courts
the lawfulness of his continued confinement in the psychiatric
hospital. Since no proceedings were available to him to contest the
decision of the court in question, his only remedy lay in requesting
his release from the Minister for Justice. He relied on
Article 5 §§ 1, 2, 4 and 5 (art. 5-1, art. 5-2, art. 5-4, art. 5-5)
of the Convention, as well as Article 6 §§ 1 and 3 (art. 6-1,
art. 6-3).
18. The Commission declared the application admissible on
6 July 1988. In its report of 4 October 1989 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 5 §§ 4 and 5 (art. 5-4, art. 5-5), but not
of Article 5 § 1 (art. 5-1) nor of Article 6 §§ 1 and 3
(art. 6-1, art. 6-3), and that the case did not require separate
examination under Article 5 § 2 (art. 5-2).
The full text of the Commission's opinion 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-C 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)
19. The applicant claimed to have been the victim of a violation
of Article 5 § 1 (art. 5-1) which, in so far as he relied on it,
provides 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:
(a) the lawful detention of a person after conviction by a competent
court;
...
(e) the lawful detention of persons for the prevention of the
spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
... ."
In the first place, he had, he alleged, not been informed that his
placement would end in January 1986, rather than in May 1986 as he had
believed. Secondly, he had not been advised of the existence of and
the reasons for the application to extend his confinement, or even
summonsed to appear on 7 January 1986 in the District Court, which
deprived him of any possibility of expressing his views on that
occasion or being represented there. Finally, no record of the
hearing had been drawn up and the order had not been communicated to
him until 26 August 1986.
20. Since these complaints all relate to the proceedings which led
to the extension of the contested confinement, it is appropriate to
examine them in the light of the provision under which those
proceedings fall in any event to be dealt with, namely paragraph 4 of
Article 5 (art. 5-4).
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 (art. 5-2)
21. Mr Keus also complained of a breach of Article 5 § 2
(art. 5-2), according to which:
"Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
against him."
In his submission, that provision placed the authorities under a duty
to notify him of the application to extend his confinement and the
order extending it, as well as the reasons therefor; since he himself
had absconded, they should have alerted his lawyer. In the
Government's view, the question should be considered under paragraph 4
of Article 5 (art. 5-4).
22. The Court confines itself to noting that the applicant, who
had absconded, acquired knowledge of the extension decided
on 7 January 1986 as soon as he contacted the hospital by telephone,
twelve days later, and it was confirmed to him on 22 February, the
date of his return (see paragraph 10 above).
Accordingly, it finds no violation of paragraph 2 (art. 5-2).
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)
23. The applicant also alleged a breach of the requirements of
Article 5 § 4 (art. 5-4), according to which:
"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."
He complained that the lack of any information concerning the
proceedings to extend the confinement had prevented him from taking
part in the hearing on 7 January 1986 in the District Court (see
paragraph 10 above). Moreover, he had not had the benefit of any
other remedy satisfying the conditions of Article 5 § 4 (art. 5-4).
In the Government's view, Mr Keus bears the entire responsibility for
the situation of which he complains. As always in such cases a
summons to appear had been sent to him and the only reason why he
failed to receive it was that he had absconded (see paragraph 10
above).
24. Consideration of the Netherlands legal system as described
above (see paragraphs 12-16) leads the Court to conclude that the
contested proceedings amounted to an "automatic periodic review of a
judicial character" within the meaning of the X v. the United Kingdom
judgment of 5 November 1981 (Series A no. 46, p. 23, § 52).
According to the case-law on the scope of paragraphs 1 and 4 of
Article 5 (art. 5-1, art. 5-4), in order to satisfy the requirements
of the Convention, such review must comply with both the substantive
and procedural rules of the national legislation and moreover be
conducted in conformity with the aim of Article 5 (art. 5): to
protect the individual against arbitrariness, in particular with
regard to the time taken to give a decision.
25. In so far as they relate to the violation of Netherlands law,
the complaints summarised in paragraph 19 above cannot succeed.
In the first place, the information provided to the Court does not
disclose the existence of a national legal rule requiring the
authorities to indicate to a person placed at the Government's
disposal when his placement will finish, or to inform him when an
application to extend his confinement is introduced and of the reasons
relied on in support thereof.
The applicant did not deny that the police were instructed by the
Crown Prosecutor to notify him of the summons to appear at the hearing
of 7 January 1986, but failed to contact him because he was in hiding
following his escape (see paragraph 10 above). No rule of Netherlands
law required the authorities to do more, and in particular to inform
the fugitive's lawyer.
In order to complain of the failure to make a record of the hearing
held in private on 7 January 1986, Mr Keus relied on
Article 37 (g) § 5 of the Criminal Code. However, according to this
provision such a document has to be drawn up only in respect of
hearings of the person concerned, of witnesses or experts. In fact
only the Crown Prosecutor and a member of the clinic's staff attended
the hearing; the latter was apparently not examined as a witness or an
expert.
Finally, Article 37 (h) § 3, which stipulates that the decision
extending the confinement be served on the person concerned, does not
relate to the "procedure prescribed by law" to be followed in respect
of the deprivation of liberty itself. It cannot therefore be regarded
as a procedural rule for the purposes of the application of Article 5
(art. 5) of the Convention. Moreover, the applicant was informed of the
decision as soon as possible (see paragraphs 10 and 22 above).
26. Nor can the court be criticised for failing to comply with the
Convention. Constrained by both national law and Article 5 § 4
(art. 5-4) to give a ruling speedily, it was entitled to take a
decision on the extension as Mr Keus was a fugitive.
27. Nevertheless, a measure depriving a person of his liberty does
not afford the fundamental guarantees against arbitrariness if it is
taken following proceedings in which neither the person concerned
himself nor a person representing him has participated (see, mutatis
mutandis, the Winterwerp judgment of 24 October 1979, Series A no. 33,
p. 24, §§ 60 and 61).
Notwithstanding the extension of his placement at the Government's
disposal, the applicant therefore retained the right protected by
Article 5 § 4 (art. 5-4) to institute proceedings, on his return to
the clinic, in a court to obtain a speedy decision on the lawfulness
of his detention.
28. The Court shares the view taken by the participants in the
proceedings that a request to revoke a placement addressed to the
Minister for Justice (see paragraph 16) cannot be regarded as
proceedings before "a court". That does not mean however that for
nearly two years the applicant was unable to obtain a fresh review on
account of Netherlands law. In fact an effective means of contesting
the extension was available to him; namely that of filing an
interlocutory application with the President of the District Court
(see paragraph 16 above). Relying on Article 5 § 4 (art. 5-4), which
is directly applicable in the domestic legal system of the
Netherlands, and on the fundamental adversarial principle, he could
have pleaded that, in the light of the improvement of his mental
state, public order no longer required the continuation of his
placement. It appears from Netherlands case-law that the President
would undoubtedly have ordered the applicant's immediate release if he
had accepted his arguments.
When questioned on this point at the hearing on 27 June 1990, the
applicant's lawyer moreover recognised - and in this was in agreement
with the Government - the existence of the remedy in question.
However, in her view, this solution would have been of little
practical use in the present case because the applicant had decided to
return to the clinic and to abide by the order of 7 January 1986,
except for requesting his release from the Minister for Justice.
It is nevertheless true that a remedy satisfying the requirements of
paragraph 4 (art. 5-4) was available to the applicant; whether or not
he considered it advisable to have recourse thereto makes no
difference in this respect.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 5 (art. 5-5)
29. Mr Keus also complained of 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."
This paragraph cannot apply as the Court has not found a breach of any
other provision of Article 5 (art. 5).
V. ALLEGED VIOLATION OF ARTICLES 6 §§ 1 and 3 (art. 6-1,
art. 6-3)
30. Initially, the applicant relied further on Article 6 §§ 1 and
3 (art. 6-1, art. 6-3), but he withdrew these complaints at the
hearing before the Court, which does not consider it necessary to
examine them of its own motion.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no violation of
paragraph 2 of Article 5 (art. 5-2);
2. Holds by five votes to four that there has been no violation of
paragraph 4 (art. 5-4);
3. Holds unanimously that it is not necessary to examine the
complaints that the applicant submitted initially, under
Article 6 §§ 1 and 3 (art. 6-1, art. 6-3).
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 25 October 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 the Court the joint dissenting opinion of
Mr Ryssdal, Mr Pettiti, Mr Bernhardt and Mr Spielmann is annexed to
this judgment.
Initialled: R. R.
Initialled: M.-A. E.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL, PETTITI, BERNHARDT AND
SPIELMANN
When the applicant returned to the psychiatric hospital on
22 February 1986 he had - notwithstanding the decision of
7 January 1986 of the Regional Court to prolong for two years his
placement at the Government's disposal - a right under Article 5 § 4
(art. 5-4) to institute court proceedings on the lawfulness of his
continued detention (see paragraph 27 of the European Court's
judgment).
The question to be decided is whether at that time he had such a right
under Dutch law.
In his application of 13 June 1986 to the Commission, the applicant
complained that the only possibility open to him was to request the
Minister for Justice to release him. However, such proceedings before
the Minister cannot be regarded as proceedings before "a court" (see
paragraph 28 of the judgment).
Throughout the lengthy proceedings before the Commission not only the
applicant but also the Government maintained that it was not possible
for the applicant to have the question of the prolonged detention
re-examined by a court. Nor was it possible to have a new examination
of the legality of the detention before the expiry of the two-year
period authorised on 7 January 1986 by the District Court (see
paragraphs 55 and 56 of the Commission's report).
The Commission accordingly stated that "under Dutch law the applicant
was, on 22 February 1986, in a situation where he could not obtain a
new court review for almost two years" (see paragraph 64 of the
Commission's report).
The Government did not challenge this statement when the case was
referred to the Court on 13 December 1989. Indeed, they did not
submit any memorial to the Court. Neither did counsel for the
Government challenge the statement in his address at the public
hearing on 27 June 1990. It was only in reply to a question that
counsel, towards the very end of the hearing, mentioned that the
applicant "could have instituted summary proceedings" (see the
verbatim record, page 26).
The Court has accepted that the applicant had an effective means of
contesting the extension of his placement at the Government's
disposal, namely that of filing an interlocutory application with the
President of the District Court (see paragraph 28 of the judgment).
We cannot agree that it is sufficiently clear that such a remedy was
available to the applicant in 1986.
If what was at issue had been a plea of non-exhaustion of domestic
remedies, it is beyond doubt that the Government could not have
invoked at the end of the whole procedure a remedy that had never been
mentioned previously. Nor could the Court have relied on such a
remedy ex officio.
Even though in the present case a question arises in the context of
Article 5 § 4 (art. 5-4) rather than in the context of Article 26
(art. 26), the problems are somewhat similar. It is incumbent on a
respondent Government to indicate with adequate clarity the existence
of a remedy which meets the requirements of Article 5 § 4 (art. 5-4)
(see the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50,
pp. 29-32, §§ 54-56).
Taking the position of the Government into account, it could not be
expected that in 1986 the applicant and his lawyer could and should
have considered that the filing of an interlocutory application with
the President of the District Court was a remedy available to the
applicant.
Accordingly, we have come to the conclusion that there was a violation
of Article 5 § 4 (art. 5-4) of the Convention.