CASE OF KEUS v. THE NETHERLANDS
No violation of Art. 5-2;No violation of Art. 5-4;Not necessary to examine Art. 6-1;Not necessary to examine Art. 6-3
N. Valticos
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. 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.