CASE OF VAN DER LEER v. THE NETHERLANDS

1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 13 September 1988, 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. 11509/85) against the Kingdom of the Netherlands
lodged with the Commission under Article 25 (art. 25) by a national
of that State, Mrs Hendrika Wilhelmina van der Leer, in May 1984.
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 and 4 and Article 6 § 1
(art. 5-1, art. 5-2, art. 5-4, 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 she
wished to take part in the proceedings and designated the lawyer who
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 29 September 1988, in
the presence of the Registrar, the President drew by lot the names of
the other five members, namely Mr J. Cremona, Mr A. Spielmann,
Mr J. De Meyer, Mr J. A. Carrillo Salcedo and Mr N. Valticos
(Article 43 in fine of the Convention and Rule 21 § 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of the
Netherlands Government ("the Government"), the Delegate of the
Commission and the applicant's representative on the need for a
written procedure (Rule 37 § 1). The proceedings were initially
suspended while negotiations for a friendly settlement took place
between the Government and the applicant, but on 30 January 1989 the
Agent of the Government informed the Registrar of their failure.
Thereafter, in accordance with the orders and directions of the
President, the registry received the Government's memorial on
26 April. The applicant's observations, which concerned only her
claims under Article 50 (art. 50), were submitted on
20 September 1989. On 6 July the Secretary to the Commission had
advised the Registrar that the Delegate would make his submissions at
5. On different dates between 6 July and 24 October 1989, the
Commission, the Government and the applicant each produced various
documents which, on the Court's instructions, the Registrar had
requested. On 24 October 1984 the Government, in addition, submitted
their observations on the applicant's claims under Article 50
6. After consulting, through the Registrar, those who would be
appearing before the Court, the President directed on 7 July 1989 that
the oral proceedings should open on 26 September (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 immediately beforehand.
There appeared before the Court:
Miss D.S. van Heukelom, Assistant Legal Adviser,
Ministry of Foreign Affairs, Agent,
Mr J.C. De Wijkerslooth de Weerdesteijn,
Mrs R.E. van Galen-Herrmann, Ministry of Justice, Adviser;
Mrs G.E.M. Later, advokate en procureur, Counsel,
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.
I. Particular circumstances of the case
8. Mrs Hendrika Wilhelmina van der Leer is a Netherlands
national. She currently resides in The Hague.
9. On 28 September 1983 the Burgomaster of The Hague ordered
Mrs van der Leer's confinement in a local psychiatric hospital. She
had already been committed on a number of previous occasions.
Following a decision of 3 October 1983 by the President of the
District Court (Arrondissementsrechtbank) refusing to extend her
confinement, she nevertheless remained in the hospital on a voluntary
On 18 November 1983, on her husband's application, the Cantonal Court
judge (Kantonrechter) of The Hague authorised Mrs van der Leer's
compulsory confinement in the same hospital for a period of six
months. The application was supported by a medical declaration by a
psychiatrist, who had examined her on 16 November 1983. In this
declaration, the psychiatrist answered in the negative the question
whether it would be devoid of purpose or medically inadvisable for
Mrs van der Leer to be heard by a judge.
The Cantonal Court judge did not hold any hearings, with the result
that no record was drawn up. His order stated that the medical
declaration sufficiently indicated the necessity of committing the
applicant to a psychiatric hospital. The pre-printed statement, on
the standard-form order, that a hearing had been dispensed with
because it would have been devoid of purpose or medically inadvisable
Mrs van der Leer was not informed of the confinement order, nor did
she receive a copy of the written decision.
10. On 28 November 1983, after she had been placed in isolation,
she became aware that her confinement was compulsory and immediately
contacted her lawyer. On 6 December the lawyer requested the Board of
the hospital to discharge her. The request was refused by the Board
on 15 December, on the basis of the unfavourable opinion of the
medical director of the hospital. The request was then forwarded on
20 December 1983, to the public prosecutor (Officier van Justitie)
who, on 6 February 1984, referred it to the District Court of The
11. The District Court held hearings on 5 March, 16 April
and 7 May 1984. On each occasion Mrs van der Leer was represented by
her counsel. On 26 March 1984 the District Court stated that it wished
to hear the doctor who was treating the applicant and ordered that he
appear and that the hospital's medical reports be produced. This
interlocutory decision was, however, not complied with, either at the
hearing on 16 April or at that on 7 May 1984. On the latter occasion,
in the absence of evidence that, as a result of her mental illness,
Mrs van der Leer represented a danger, the court ordered her
12. However, Mrs van der Leer, with the help of her husband, had
already left the hospital without authorisation on 31 January 1984.
She had been granted probationary leave by the hospital as from
7 February, but only learned of this indirectly during the course of
II. Relevant domestic law and practice
13. The confinement of persons of unsound mind in the Netherlands
is governed by the Act of 27 April 1884 on State Supervision of
Mentally Ill Persons, commonly known as the Mentally Ill Persons Act
A. Emergency committal procedure
14. If it is a matter of urgency, the burgomaster is empowered to
order the compulsory admission of a "mentally ill" person to a
psychiatric hospital. Under section 35 (c) of the Act, he must first
seek the opinion of a psychiatrist, or, where this proves impossible,
another medical practitioner. Once he has ordered a committal, he
must inform the public prosecutor and transmit to him the medical
declaration on which he has relied. The public prosecutor has then to
communicate it, not later than the following day, to the President of
the District Court, requesting, where appropriate, the continuation of
the confinement. The President must give his decision within three
days. If he refuses to order the continuation of the confinement, it
B. Issue of an order authorising provisional confinement
15. Section 12 of the Act enables, amongst others, the spouse of a
mentally ill person to apply in writing to the local cantonal court
judge for an authorisation to have that person placed temporarily in a
mental hospital in the interests of public safety or of the person
Section 16 of the Act requires that such an application be accompanied
by a reasoned medical declaration by a qualified doctor who has
specialised in mental and nervous disorders. This declaration must be
to the effect that the patient is mentally ill and that treatment in a
mental hospital is necessary or desirable. The statement should also
indicate in so far as possible whether or not, in view of the
patient's condition, it would be devoid of purpose or medically
inadvisable for the judge to hear the patient.
16. The judge will issue the requested order authorising
provisional detention if the medical declaration, either on its own or
in conjunction with the facts related or the documents submitted,
adequately establishes that treatment in a psychiatric hospital is
"necessary or desirable" (section 17 § 1 of the Act). The Supreme
Court (Hoge Raad) of the Netherlands has interpreted this expression
as meaning that the patient must represent a danger to himself, to
others or to the general public order, to such an extent that it is
necessary or desirable that he be treated in a psychiatric clinic
(judgment of 4 November 1983, Nederlandse Jurisprudentie (NJ) 1984,
The judge is obliged to hear the person whose confinement is sought
unless he concludes from the medical declaration that this would be
devoid of purpose or medically inadvisable (section 17 § 3). The
Supreme Court has held that a decision not to hear the patient must be
supported by reasons (judgment of 27 November 1981, NJ 1983, no. 56).
The judge must, "so far as possible", seek information from, amongst
others, the person who made the application for confinement and the
spouse of the patient (section 17 § 4).
By virtue of article 72 of Regulation I (Reglement I) made in
pursuance of the Judiciary (Organisation) Act (wet op de rechterlijke
organisatie), a registrar must be present at "the hearings and
examinations" conducted by the judge ("terechtzittingen en verhoren").
The confinement order may not be appealed against and is not notified
to the person concerned (section 17 §§ 1 and 8); its renewal must be
sought within six months of the day on which it was made (section 22).
17. By virtue of section 29 of the Act, the patient may petition
the Board of the hospital for his release at any time. The Board must
immediately consult the medical director of the institution. If the
doctor's opinion is unfavourable, the Board has to transmit the
request, together with the opinion, to the public prosecutor who, in
general, will forward the request to the District Court for decision.
18. As regards the procedure, section 29 refers to section 23,
according to which the District Court is empowered, but not bound, to
hear the patient. In a judgment of 2 December 1983 (NJ 1984,
no. 164), however, the Supreme Court held that, in the light of
Article 5 (art. 5) of the Convention, these provisions should be
interpreted as conferring on the patient detained the right to be
heard and to adduce any evidence which might help to secure his
release. This entailed not only the right to be assisted by a lawyer,
but also the right to demand the presence of an expert to counter the
arguments of the hospital board.
PROCEEDINGS BEFORE THE COMMISSION
19. In her application (no. 11509/85) lodged with the Commission
on 18 May 1984, Mrs van der Leer alleged that her compulsory
confinement in a psychiatric hospital had been neither ordered "in
accordance with a procedure prescribed by law" nor "lawful" within the
meaning of Article 5 § 1 (art. 5-1) of the Convention. She further
complained that paragraphs 2 and 4 of Article 5 (art. 5-2, art. 5-4)
had been violated since she had not been informed of the order of
18 November 1983 or given the possibility of having the lawfulness of
her deprivation of liberty reviewed "speedily" by a court. Finally,
she claimed that, in breach of Article 6 § 1 (art. 6-1), she had been
denied a fair hearing in the determination of her civil rights and
20. The Commission declared the application admissible on
In its report adopted on 14 July 1988 (Article 31) (art. 31),
the Commission expressed the unanimous opinion that there had been a
violation of Article 5 §§ 1, 2 and 4 (art. 5-1, art. 5-2, art. 5-4),
but no violation of Article 6 § 1 (art. 6-1). The full text of its
opinion and of the separate opinion accompanying it is reproduced as
* Note by the Registrar. For practical reasons this annex will appear
only with the printed version of the judgment (volume 170 of Series A of
the Publications of the Court), but a copy of the Commission's report is
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (art. 5-1)
21. The applicant claimed to be the victim of a violation of
Article 5 § 1 (art. 5-1), which, in so far as is relevant to the
present case, 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:
(e) the lawful detention ... of persons of unsound mind ...;
She alleged that the order authorising her confinement in a
psychiatric hospital had not been issued in accordance with a
procedure prescribed by law, which had rendered her detention
In the first place and above all, the Cantonal Court judge had not
heard Mrs van der Leer prior to making the order, although under
section 17 (3) of the Mentally Ill Persons Act he was bound to do so,
since the psychiatrist had not raised any objection to such a hearing
In addition, she submitted that the order in question had not complied
with the conditions to which, according to the Netherlands Supreme
Court and the European Court of Human Rights, the validity of such a
measure was subject. It did not appear that the judge had established
that the person concerned was a danger to herself, to others or to the
general public order. The applicant questioned whether the
psychiatrist's attestation amounted to an expert report which was
sufficiently objective to support the conclusion that she was of
unsound mind within the meaning of Article 5 § 1 (e) (art. 5-1-e)
She considered further that the Cantonal Court judge ought also to
have heard her husband (section 17 § 4 of the Mentally Ill Persons
Act), or at least, should have stated why he had not done so.
Finally she alleged failure to comply with Article 72 of Regulation I
made in pursuance of the Judiciary (Organisation) Act, which requires
the presence of a registrar at the hearings and examinations conducted
by the judge (see paragraph 16 above).
22. In the Court's view, the main issue to be determined in the
present case is whether the disputed detention was "lawful", including
whether it complied with "a procedure prescribed by law". The
Convention here refers back essentially to national law and lays down
the obligation to conform to the substantive and procedural rules
thereof, but 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, in particular, the
Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 17-18 and
19-20, §§ 39 and 45; the Bozano judgment of 18 December 1986,
Series A no. 111, p. 23, § 54; and the Bouamar judgment
of 29 February 1988, Series A no. 129, p. 20, § 47).
23. Notwithstanding the requirements of the Mentally Ill Persons
Act, the Cantonal Court judge failed to hear Mrs van der Leer before
authorising her confinement, although the legal conditions under which
such a hearing might be dispensed with were not satisfied. At the
very least he should have stated, in his decision, the reasons which
led him to depart from the psychiatrist's opinion in this respect.
There has therefore been a violation of Article 5 § 1 (art. 5-1)
24. Having found a failure to comply with an essential procedural
requirement on this ground, the Court does not consider it necessary
to examine the other complaints put forward by the applicant under
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 (art. 5-2)
25. The applicant complained of a violation of Article 5 § 2
(art. 5-2) which provides as follows:
"Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
In her submission, this provision entitled her to be informed
immediately of the order authorising her confinement. In fact she
found out about it only by accident, when she was placed in isolation.
26. The Government conceded that Mrs van der Leer should have been
informed promptly, but they contended that this resulted from
paragraph 4 (art. 5-4). They argued that paragraph 2 (art. 5-2), on
the other hand, did not apply to the case in question because the
words "arrest" and "charge" showed that it was only relevant to cases
arising under the criminal law. The presence of the conjunction "and"
27. The Court is not unmindful of the criminal-law connotation of
the words used in Article 5 § 2 (art. 5-2). However, it agrees with the
Commission that they should be interpreted "autonomously", in
particular in accordance with the aim and purpose of Article 5
(art. 5), which are to protect everyone from arbitrary deprivations of
liberty. Thus the "arrest" referred to in paragraph 2 of Article 5
(art. 5-2) extends beyond the realm of criminal-law measures.
Similarly, in using the words "any charge" ("toute accusation") in
this provision, the intention of the drafters was not to lay down a
condition for its applicability, but to indicate an eventuality of
28. The close link between paragraphs 2 and 4 of Article 5
(art. 5-2, art. 5-4) supports this interpretation. Any person who
is entitled to take proceedings to have the lawfulness of his
detention decided speedily cannot make effective use of that right
unless he is promptly and adequately informed of the reasons why he
has been deprived of his liberty (see, mutatis mutandis, the X v. the
United Kingdom judgment of 5 November 1981, Series A no. 46, p. 28,
Paragraph 4 (art. 5-4) does not make any distinction as between
persons deprived of their liberty on the basis of whether they have
been arrested or detained. There are therefore no grounds for
excluding the latter from the scope of paragraph 2 (art. 5-2).
29. Having found that Article 5 § 2 (art. 5-2) is applicable, the
Court must determine whether it has been complied with in this case.
30. The applicant was in hospital to receive treatment as a
"voluntary" patient. It was not until 28 November 1983 that she
learned, when she was placed in isolation, that she was no longer free
to leave when she wished because of an order made ten days previously
(see paragraphs 9 and 10 above). The Government did not contest this.
31. It therefore appears that neither the manner in which she was
informed of the measures depriving her of her liberty, nor the time it
took to communicate this information to her, corresponded to the
requirements of Article 5 § 2 (art. 5-2). In fact it was all the more
important to bring the measures in question to her attention since she
was already in a psychiatric hospital prior to the Cantonal Court
judge's decision, which did not change her situation in factual terms.
Accordingly, there has been a violation of Article 5 § 2 (art. 5-2).
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)
32. The applicant complained of a double violation of
Article 5 § 4 (art. 5-4) which provides 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."
She claimed in the first place to be the victim of an infringement of
her right to be informed promptly and adequately of the facts and the
grounds on which her detention was based in order to be able to
institute the proceedings referred to in this provision. Secondly,
she argued that, inasmuch as the District Court did not deliver its
decision on the lawfulness of the contested order until five months
after the proceedings had been instituted, it had not decided the
33. The Court would observe at the outset that the review of
lawfulness required under Article 5 § 4 (art. 5-4) was not in this instance
incorporated in the decision depriving the applicant of her liberty
because, before authorising the detention, the judge had failed to
comply with one of the fundamental procedural guarantees applying in
the field of deprivation of liberty failed to comply (see
paragraph 23 above and the De Wilde, Ooms and Versyp judgment
of 18 June 1971, Series A no. 12, pp. 40-41, § 76). The applicant
therefore had to be given the possibility of instituting proceedings.
34. The Court has already determined, in the context of
Article 5 § 2 (art. 5-2), the question of the information which should
have been communicated to Mrs van der Leer. It does not consider it
necessary to re-examine it in the light of Article 5 § 4 (art. 5-4).
35. On the issue of the compliance, in this case, with the
requirement of "speediness", it observes that there are certain
divergences between the views of the participants in the proceedings
as regards the method of determining the period to be taken into
consideration. In guaranteeing to persons arrested or detained a
right to institute proceedings, Article 5 § 4 (art. 5-4) also
proclaims their right, following the institution of such proceedings,
to a speedy judicial decision terminating their deprivation of liberty
Neither the fact that the applicant absconded nor even the fact that
she was granted probationary leave could render such a decision
unnecessary. After she had left the hospital without authorisation,
Mrs van der Leer could at any moment have been taken back there
against her will. The leave made no difference from her point of view.
As it was not possible to bring the hospital's decision to her notice,
she must have remained in fear of being compelled to return to the
establishment. Accordingly, the relevant period runs from when the
application for release was lodged - which step must be regarded, in
this instance, as equivalent to instituting proceedings against the
confinement order - to the date of the judgment ordering her release,
in other words from 6 December 1983 to 7 May 1984.
36. Consequently, the proceedings lasted five months. In the
specific circumstances of the case, the Court considers this lapse of
time excessive. As Mrs van der Leer stressed in her application for
release, the judge had not heard her before authorising her detention.
Moreover, the institution of proceedings may have been significantly
retarded by the failure to comply with the obligation to inform the
person concerned of the measure taken against her. There were
therefore compelling reasons for avoiding any dilatoriness. On the
Government's own admission, the public prosecutor, to whom the matter
was referred on 20 December 1983, did not transmit the file to the
District Court of The Hague until 6 February 1984 (see paragraph 10
above). In the absence of any grounds justifying this delay, the
Court finds that there has been a violation of Article 5 § 4
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)
37. Before the Commission the applicant also relied on
Article 6 § 1 (art. 6-1), but at the hearing on 26 September 1989 she
withdrew this complaint. The Court does not consider it necessary to
examine this question of its own motion.
V. APPLICATION OF ARTICLE 50 (art. 50)
38. Under 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."
39. Mrs van der Leer claimed in the first place 10,000 Dutch
guilders in respect of pecuniary and non-pecuniary damage. In
addition to the harm caused by her unlawful detention, she maintained
that she had suffered not only from the fear of being returned to the
hospital after she had absconded, but also as a result of the court
proceedings and the memory of the distressing circumstances of her
40. She also sought the payment of 30,997.55 guilders in respect
of the expenses and fees of the lawyer who represented her before the
The Government noted that she had received legal aid. In their view,
she had not shown that she had had to pay her lawyer additional fees