EHRM, 06-01-2005, nr. 5379/02

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived.

The applicant was arrested and subjected to psychiatric examination by State-appointed psychiatrists.

On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution.

The applicant appealed.

A report was prepared by a counter-expert, Dr E., according to which the act with which the applicant was charged could be explained with reference to the applicant's cultural background. Dr E. had published the results of research relevant to such problems.

On 10 October 1995 the 's‑Hertogenbosch Court of Appeal upheld the judgment of the Regional Court. In so doing it had regard to, among other things, the report of the State-appointed psychiatrists.

The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996.

The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date.

The applicant was kept detained in a remand centre (huis van bewaring) pending placement in a secure institution.

The placement order was prolonged for an additional two years in September 1998.

On 10 May 1999 the applicant was transferred to the secure institution ‘Veldzicht’ in Balkbrug. The competent authority, recognising that the applicant had had to wait for a considerable time to be moved to a setting appropriate to his established mental condition, awarded him financial compensation for any harm caused thereby on 19 October 1999.

On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years.

The applicant appealed to the Arnhem Court of Appeal (gerechtshof).

A hearing was held on 9 April 2001. The Court of Appeal considered a psychiatric report submitted by Veldzicht, according to which the applicant was excessively suspicious; suffered from delusions and was lacking in introspective, rational, social and empathic powers; and refused treatment. It also heard expert evidence given by one Dr. D., a psychologist who was a member of the Veldzicht staff, who stated that the applicant was uncooperative, refused medication and had tried to escape from the institution by taking someone hostage.

The applicant's counsel denied that the applicant posed any danger justifying his continued detention. He asked for the applicant to be examined by a psychiatrist of Moroccan origin who had no ties with Veldzicht. He submitted that there was such a psychiatrist in The Hague who was a recognised forensic expert.

The Court of Appeal gave its decision on 23 April 2001. The summaries of the Veldzicht report and of the statements of Dr. D. and the applicant's counsel cover about a page and a half.

It found, based on the Veldzicht report and the statement of Dr. D., that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety. It refused to hear further evidence, expert or otherwise, on the ground that there was no apparent need for any, and the information available on which to base a decision was enough.

On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April.

A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage:

The applicant alleged that Article 25 of the Code of Criminal Procedure, which requires an official record to be drawn up of hearings in camera, had been disregarded by the Court of Appeal. From this it followed, in his submission, that the prolongation of his placement at the Government's disposal with confinement to a secure institution had not been ordered ‘in accordance with a procedure prescribed by law’, as required by Article 5 § 1 of the Convention.

The Government admitted that it was the normal practice of the Arnhem Court of Appeal not to draw up a separate official record in cases of this nature, thus saving time and money. Instead, a summary of what was said by the person concerned or his counsel was incorporated in the document containing the decision. The Government submitted that this was sufficient to satisfy domestic law. In any event, they argued, an official record in the form of a separate document would have had no added value whatsoever for the applicant.

The applicant pointed to the terms of Article 25 of the Code of Criminal Procedure, paraphrased above. An official record of a hearing was, in his submission, a record of what was said and done during a hearing, and was therefore entirely different in nature from a judicial decision which followed a hearing in time.

In the applicant's submission, the Code of Criminal Procedure also recognised the difference in principle between decisions and official records of hearings. He quoted a large number of domestic legal provisions in support of this argument, as well as a number of comments by learned authors and the drafting history of the legal provision concerned.

The applicant cited three judgments of the Supreme Court (Hoge Raad). The first was a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, in which a decision of a trial court was declared null and void because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record. The two other judgments cited were those delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) in which decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held.

Finally, the applicant argued that the added value of a separate official record of the hearing was its character as a public record of everything that was actually discussed at the hearing, perhaps including matters which did not make their way into the eventual decision.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

The applicant complained of the failure to appoint an independent expert to assess his mental state. In his submission the expert reports available to the domestic courts, having been prepared by experts employed by the respondent Party and belonging to the institution itself where he was forced to remain for compulsory treatment, could not be accepted as satisfactory in this respect. He relied on Article 5 §§ 1 (e) and 4 and Article 6 § 3 (d) of the Convention.