Information Note on the Court’s case-law No. 155
August-September 2012
S.R. v. the Netherlands (dec.) - 13837/07
Decision 18.9.2012 [Section III]
Article 5
Article 5-4
Review of lawfulness of detention
Supreme Court decision declaring appeal inadmissible but nevertheless addressing the merits: inadmissible

Article 5-1-e
Persons of unsound mind
Court order for admission to psychiatric hospital for observation owing to concerns about applicant’s mental state: inadmissible

Facts – In July 2006 a public prosecutor submitted a request, supported by a psychiatric report, for provisional authorisation for the applicant’s committal to a psychiatric hospital. The Regional Court rejected that request and made an observation order instead, pursuant to which the applicant was admitted to a psychiatric hospital. The applicant appealed to the Supreme Court on points of law, inter alia, on the grounds that she had not been heard by the Regional Court before the observation order was issued and that Article 5 § 1 (e) of the Convention did not permit the detention of persons purely for observation for the purposes of determining whether they were of unsound mind. She left hospital three weeks after her admission. The Supreme Court subsequently declared her appeal inadmissible for lack of interest as the observation order had already lapsed. However, in view of the relevance of the legal questions raised, it nonetheless addressed the merits of a number of her grounds of appeal.
Law – Article 5 § 1: A medical report drawn up by a qualified practitioner not involved in the applicant’s existing treatment had been available to the Regional Court and the Court was not disposed to doubt that it reflected genuine concerns that the applicant’s mental state was such as to justify at least her detention for a limited period so as to make sure. The fact that the applicant was released after three weeks’ observation and that her mental condition was never determined to be dangerous could not be decisive. The Court had previously interpreted Article 5 § 1 (e) so as to allow the detention of persons who had abused alcohol and whose resulting behaviour gave rise to genuine concern for public order and for their own safety. The same applied to persons in respect of whom there was sufficient indication that they may be of unsound mind.
Conclusion: inadmissible (manifestly ill-founded).
Article 5 § 4: In the case of S.T.S. v. the Netherlands* the Court had noted that a former detainee might well have a legal interest in the determination of the lawfulness of his detention even after his release, for example, in relation to his “enforceable right to compensation”, so that by declaring his appeal on points of law inadmissible as having become devoid of interest, the Supreme Court had deprived the proceedings for deciding the lawfulness of his detention of effect, in breach of Article 5 § 4.
In the instant case, however, while it was true that the Supreme Court had declared the applicant’s claim inadmissible (as the order appealed against could no longer be overturned), it was not thereby prevented from ruling on the lawfulness of the applicant’s detention. Although it did not accept the applicant’s complaints as regards the legality of her detention, it did actually express itself in her favour on the complaint that she had not had a proper opportunity to argue her case against the delivery of an observation order as distinct from a provisional order. Had the applicant brought proceedings to obtain compensation for damage, the court seized of the case would have found the Supreme Court’s opinion impossible to ignore. Accordingly, the Supreme Court’s decision did not have the effect of depriving the applicant of a decision on the merits of her appeal on points of law. Nor was it established that the applicant had been prevented from enjoying the effects of that decision in so far as it was favourable to her position. S.T.S. distinguished.
Conclusion: inadmissible (manifestly ill-founded).
* S.T.S. v. the Netherlands, no. 277/05, 7 June 2011, Information Note no. 142.

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