Judgment (Merits) of European Court of Human Rights, October 24, 1979 (case CASE OF WINTERWERP v. THE NETHERLANDS)

Resolution Date:October 24, 1979

Violation of Art. 5-4 Violation of Art. 6-1 No violation of Art. 5-1 Just satisfaction reserved




(Application no. 6301/73)



24 October 1979

In the Winterwerp case,

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:

             Mrs.               H. Pedersen, President,

             Mr.               G. Wiarda,

             Mr.               D. Evrigenis,

             Mr.               P.-H. Teitgen,

             Mr.               G. Lagergren,

             Mr.               L. Liesch,

             Mr.               F. Gölcüklü,

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

Having deliberated in private on 29 November 1978 and from 25 to 26 September 1979,

Delivers the following judgment, which was adopted on the last-mentioned date:


  1. The Winterwerp case was referred to the Court by the European Commission of Human Rights ("the Commission") and the Government of the Kingdom of the Netherlands ("the Government"). The case originated in an application against the said State lodged with the Commission in 1972 under Article 25 (art. 25) of the Convention by Mr. Frits Winterwerp, a Netherlands National.

  2. Both the Commission’s request, to which was attached the report provided for in Article 31 (art. 31) of the Convention and the Government’s application, which referred to Article 48 (art. 48), were lodged with the registry of the Court within the period of three months laid down by Articles 32 para. 1 and 47 (art. 32-1, art. 47). The request was filed on 9 March 1978 and the application on 21 April. Their purpose is to obtain a decision from the Court as to whether or not the facts of the case disclose a breach by the respondent State of its obligations under Articles 5 para. 1, 5 para. 4 and 6 para. 1 (art. 5-1, art. 5-4, art. 6-1).

  3. The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Wiarda, the elected judge of Netherlands nationality (Article 43 of the Convention) (art. 43), and Mr. G. Balladore Pallieri, the President of the Court (Rule 21 para. 3 (b) of the Rules of Court). On 11 March 1978, the President of the Court drew by lot, in the presence of the Deputy Registrar, the names of the five other members, namely Mrs. H. Pedersen, Mrs. D. Bindschedler-Robert, Mr. D. Evrigenis, Mr. L. Liesch and Mr. F. Gölcüklü (Article 43 in fine of the Convention and Rule 21 para. 4 ) (art. 43). Subsequently, Mrs. Bindschedler-Robert was exempted from sitting (4 July 1978) and Mr. Balladore Pallieri was prevented from taking part in the consideration of the case (25 September 1979); they were replaced by the first two substitute judges, Mr. Lagergren and Mr. Teitgen (Rules 22 para. 1 and 24 paras. 1 and 4).

    Mr. Balladore Pallieri and then, as from 25 September 1979, Mrs. Pedersen assumed the office of President of the Chamber (Rule 2l para. 5).

  4. Acting through the Deputy Registrar, the President of the Chamber ascertained the views of the Agent of the Government and the Delegates of the Commission regarding the procedure to be followed. On 19 May, he decided that the Agent should have until 1 August 1978 to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government’s memorial to them by the Registrar.

    The Government’s memorial was received at the registry on 24 July 1978. On 18 September, the Secretary to the Commission advised the Registrar that the Delegates did not propose to submit a memorial in reply.

  5. After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President of the Chamber directed on 6 October that the oral hearings should open on 28 November. On 21 October, he invited the Government to produce a certain document; it was filed at the registry on 10 November.

  6. The oral hearings took place in public at the Human Rights Building, Strasbourg, on 28 November. Immediately prior to their opening, the Court had held a short preparatory meeting.

    There appeared before the Court:

    - for the Government:

                 Miss F.Y. van der Wal, Assistant Legal Adviser

                                             to the Ministry of Foreign Affairs,               Agent,

                 Mr. E.A. Droogleever Fortuijn, Landsadvocaat,

                 Mr. L.A. Geelhoed, Official

                                             at the Ministry of Justice,               Counsel;

    - for the Commission:

                 Mr. J.E.S. Fawcett,               Principal Delegate,

                 Mr. C.H.J. Polak,               Delegate,

                 Mr. J.H.A. Van Loon, who had represented

                                             the applicant before the Commission, assisting the             

                                             Delegates under Rule 29 para. 1, second sentence, of the              

                                             Rules of Court.

    The Court heard addresses by Miss van der Wal, Mr. Droogleever Fortuijn and Mr. Geelhoed for the Government and by Mr. Fawcett and Mr. Van Loon for the Commission, as well as their replies to questions put by the Court.

  7. Acting on a suggestion made by the Principal Delegate, the President of the Chamber declared the proceedings only provisionally closed so as to allow the Commission to submit, within a time-limit of two weeks, a written statement from the Government of the United Kingdom of Great Britain and Northern Ireland on the interpretation of Article 5 para. 4 (art. 5-4). In November there had been an exchange of letters between the United Kingdom Government and the Registrar in this connection.

    On 15 December 1978, in response to a request from the Commission, the President extended the aforesaid time-limit until 5 January 1979. The written statement from the United Kingdom Government was filed at the registry by the Commission on 9 January; the Delegates indicated at the same time that they had no observations of their own to make. By letter received on 2 February, the Agent of the Netherlands Government informed the Registrar that her Government felt no need to comment on the points raised in the said statement.

  8. On 27 December 1978, Mr. Van Loon communicated to the Court certain documents that he had referred to during the hearings.

  9. The Chamber made final the closure of the proceedings on 26 September 1979.


  10. Mr. Frits Winterwerp resides in the Netherlands. He married in 1956 and several children were born of the marriage. In 1968, he was committed to a psychiatric hospital by direction of the local burgomaster in accordance with an emergency procedure. Six weeks later, on his wife’s application, he was confined to the same hospital under an order made by the District Court (kantongerecht) of his place of residence. On his wife’s further application and subsequently at the request of the public prosecutor (officier van justitie), the order was renewed from year to year by the Regional Court (arrondissements- rechtbank) on the basis of medical reports from the doctor treating the applicant.

    Mr. Winterwerp complains of the procedure followed in his case. In particular, he objects that he was never heard by the various courts or notified of the orders, that he did not receive any legal assistance and that he had no opportunity of challenging the medical reports. His complaints are also directed against the decisions on his requests for discharge and against his loss of civil capacity.

    1. Netherlands legislation on detention of persons of unsound mind

  11. The detention of persons of unsound mind is governed by an Act of 27 April 1884 on State supervision of mentally ill persons (wet van 27 April 1884, Stb 96, tot regeling van het Staatstoezicht op krankzinnigen). Usually referred to as the Mentally Ill Persons Act (krankzinnigenwet), the Act has been amended several times, in the last instance by an Act of 28 August 1970 which came into force on 15 May 1972, that is some time after the applicant had first been detained. A Bill providing for a complete reform of the system is at present pending before the Netherlands Parliament.

    The Mentally Ill Persons Act is divided into five main chapters. Principally relevant for the present proceedings are the three chapters dealing firstly with the admission of persons to psychiatric hospitals and their stay therein, secondly with leave of absence and discharge therefrom, and thirdly with the administration of the property of persons admitted to psychiatric hospitals.

    The Act does not define who are "mentally ill persons" but lays down the grounds for committing such persons to hospital (see the following paragraphs). It would appear from the evidence submitted that, according to the general practice currently followed, the Netherlands courts will authorise the confinement of a "mentally ill person" only if his mental disorder is of such a kind or of such gravity as to make him an actual danger to himself or to others.

    (i) The procedure for detention in emergency cases

  12. In urgent cases, the burgomaster has the power to direct the compulsory admission of a "mentally ill person" to a psychiatric hospital.

    Until 1972, the burgomaster had to obtain prior medical advice only if circumstances permitted; his decision was valid for three weeks but the public prosecutor could shorten or extend the term (section 14 of the Act).

    This procedure was considerably changed by the 1970 Act, section 14 being repealed and replaced by sections 35b to 35j. The burgomaster is now obliged to seek the prior opinion of a psychiatrist or, should that not be possible, another medical practitioner. Once he has issued a direction to detain, he must immediately inform the public prosecutor and send him the medical declarations on which...

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