BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> <html> <head> <meta http-equiv=Content-Type content="text/html; charset=windows-1252"> <meta name=Generator content="Microsoft Word 12 (filtered)"> <style> <!-- /* Font Definitions */ @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4;} @font-face {font-family:"Microsoft Sans Serif"; panose-1:2 11 6 4 2 2 2 2 2 4;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {margin-top:0cm; margin-right:0cm; margin-bottom:10.0pt; margin-left:0cm; line-height:115%; font-size:11.0pt; font-family:"Calibri","sans-serif";} .MsoChpDefault {font-size:11.0pt;} .MsoPapDefault {margin-bottom:10.0pt; line-height:115%;} /* Page Definitions */ @page WordSection1 {size:612.0pt 792.0pt; margin:70.85pt 70.85pt 70.85pt 70.85pt;} div.WordSection1 {page:WordSection1;} --> </style> </head> <body lang=EN-GB style='text-justify-trim:punctuation'>
URL: http://www.bailii.org/eu/cases/ECHR/1990/3.html
Cite as: (1990) 12 EHRR 567, [1990] ECHR 3, [1990] 12 EHRR 567

[New search] [Printable RTF version] [Help]


    

    In the van der Leer case*,

     

    _______________

    * Note by the Registrar:  The case is numbered 12/1988/156/210.

    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:

     

            Mr R. Ryssdal, President,

            Mr J. Cremona,

            Mr A. Spielmann,

            Mr J. De Meyer,

            Mr J.A. Carrillo Salcedo,

            Mr N. Valticos,

            Mr S.K. Martens,

     

    and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

    Registrar,

     

    Having deliberated in private on 27 September 1989 and

    22 January 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 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

    would represent her (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 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

    the hearing.

     

    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

    (art. 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:

     

    (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. Danelius,                                         Delegate;

     

    (c)  for the applicant

     

         Mrs G.E.M. Later, advokate en procureur,                Counsel,

         Mr W.J.J. Los,

         Mr J. Legemaate,                                        Advisers.

     

    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.      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

    basis.

     

    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

    had been deleted.

     

    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

    Hague.

     

    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

    discharge.

     

    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

    March.

     

    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

    (Krankzinnigenwet).

     

    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

    must cease forthwith.

     

    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

    concerned.

     

    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,

    no. 162).

     

    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).

     

    C.  Discharge of the patient

     

    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

    obligations.

     

    20.     The Commission declared the application admissible on

    16 July 1986.

     

    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

    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 170 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)

     

    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

    unlawful.

     

    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

    (see paragraph 9 above).

     

    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)

    of the Convention.

     

    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.

    The Government accepted this.

     

    There has therefore been a violation of Article 5 § 1 (art. 5-1)

    in this regard.

     

    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

    Article 5 § 1 (art. 5-1).

     

    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

    against him."

     

    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"

    confirmed this.

     

    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

    which it takes account.

     

    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,

    § 66).

     

    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

    question "speedily".

     

    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

    if it proves unlawful.

     

    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

    (art. 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

    confinement.

     

    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

    Commission and the Court.

     

    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

    whose reimbursement she was entitled to request.

     

    41.     With a view to securing a friendly settlement, the Government

    had proposed to the applicant an overall sum of 15,000 guilders

    covering any damage suffered as well as the costs incurred through her

    being represented by a lawyer before the Strasbourg organs.  This

    offer was repeated at the hearing.

     

    42.     In the Court's view, the applicant must have suffered some

    non-pecuniary damage.  The fact that she was not heard by the Cantonal

    Court judge could have led to a feeling of frustration, to which was

    added the fear of being sent back to the hospital during the delay

    resulting from the failure to take the relevant decision "speedily".

     

    Making an equitable assessment in accordance with Article 50 (art. 50),

    the Court awards the applicant, in respect of all the heads of claim,

    the overall amount of 15,000 guilders.

     

    FOR THESE REASONS, THE COURT UNANIMOUSLY

     

    1.      Holds that there has been a violation of paragraphs 1, 2 and 4

    of Article 5 (art. 5-1, art. 5-2, art. 5-4);

     

    2.      Holds that it is not necessary to consider in addition the

    case under Article 6 § 1 (art. 6-1);

     

    3.      Holds that the Netherlands is to pay to the applicant

    15,000 (fifteen thousand) Dutch guilders;

     

    4.      Dismisses 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 21 February 1990.

     

    Signed: Rolv RYSSDAL

            President

     

    Signed: Marc-André EISSEN

            Registrar

     

     


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/eu/cases/ECHR/1990/3.html

VAN DER LEER v. THE NETHERLANDS - 11509/85 - Chamber Judgment [1990] ECHR 3 (21 February 1990)