Winterwerp Case

• Date: 27 November 1981
• Court: European Court of Human Rights

European Court of Human Rights.

(Chamber composed of: Evrigenis, President; Wiarda, Teitgen, Lagergren, Liesch, Gölcüklü, Matscher, Judges)

Winterwerp Case (Article 50)

State responsibility — Damages — Award of damages in general — Grounds for awarding damages — European Convention on Human Rights, 1950 — Article 50 — Just satisfaction in respect of established breaches — Monetary compensation — Settlement between the parties

Disputes — Other international courts — European Court of Human Rights — Proceedings for just satisfaction in respect of established breaches of the European Convention on Human Eights, 1950 — Obligations of the State — Settlement between the parties

The individual in international law — In general — Human rights and freedoms — European Convention on Human Rights, 1950 — Articles 5(4) and 6(1) — Violation of right to manage own property and affairs established — Article 50 — Commission asked to report settlement between the parties — Just satisfaction — Whether Netherlands obliged to place plaintiff in hostel — Whether Netherlands obliged to pay compensation — Settlement between the parties — Observations by the Commission

Summary:1The facts:2—The case originated in an application against the Kingdom of the Netherlands lodged with the European Commission of Human Rights in 1972 by Mr Winterwerp, a Netherlands national. In its judgment of 24 October 1979 the Court held inter alia that there had been a breach of Articles 5(4) and 6(1) of the Convention in relation to Mr Winterwerp's compulsory confinement in psychiatric hospitals in the Netherlands. The Court reserved the question of the application of Article 50, taking into account a possible future settlement between the parties.

The present proceedings concerned the outstanding matter of the application of Article 50.3 In the judgment of 24 October 1979 the Commission was invited to submit to the Court, within two months from the delivery of the judgment, the Commission's observations on that question and to notify the Court of any settlement between the parties.

The applicant submitted a claim for just satisfaction by way of provisions for after-care, an assurance of full procedural guarantees with respect to the annual renewal of orders and requests for discharge, without having submitted a claim for damages. As from 23 December 1979, Mr Winterwerp ceased to be subject to a detention order, but nevertheless remained in need of medical care. The applicant claimed that he should be placed in a private, psychiatric hostel where, as a person at liberty, he could receive social and medical care. An agreement signed by the applicant himself, his duly authorized guardian, and the Agent of the Government was received at the registry of the Court on 9 October 1981. In it the parties disagreed as to the obligations incumbent on the Netherlands under Article 50. However, wishing to avoid further proceedings, they agreed that the Government would endeavour to ensure that Mr Winterwerp was placed in a hostel as soon as

possible and would pay his guardian a lump sum of ten thousand guilders to be used for his resocialization. The Commission's Delegate raised no objections to the amicable settlement.

Held:—(unanimously) The Court took formal note of the settlement and concluded that it would be appropriate to strike the case out of its list. It noted that on the applicant's side the agreement had been signed both by Mr Winterwerp and his guardian, and that the settlement reached was of an equitable nature.

The following is the text of the judgment of the Court:

procedure and facts

1. The Winterwerp case was referred to the Court by the European Commission of Human Rights (‘the Commission’) and by the Government of the Kingdom of the Netherlands (‘the Government’) on 9 March and 21 April 1978, respectively. The case originated in an application against the said State lodged with the Commission in 1972 by Mr Frits Winterwerp, a Netherlands national.

2. By judgment of 24 October 1979, the Court held, inter alia, that there had been breach of Articles 5 § 4 and 6 § 1, but not Article 5 § 1, of the Convention in relation to Mr Winterwerp's compulsory confinement in psychiatric hospitals in the Netherlands (Series A no. 33, points 1, 2 and 4 of the operative provisions and paragraphs 35–76 of the reasons, pp. 16–30).[4]

The only outstanding matter to be settled in the present case is the question of the application of Article 50. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 10 to 32 of the above-mentioned judgment (ibid., pp. 6–15).[5]

3. At the public hearings held on 28 November 1978, the applicant's counsel had suggested, by way of just satisfaction under Article 50, a five-point scheme providing basically for the release and aftercare of his client under the supervision of the social psychiatric service, together with an assurance that, should the attempt at release fail, full procedural guarantees would be provided as regards any future detention orders and requests for discharge. No claim was made for material damage and no pecuniary compensation was sought in respect of non-material damage.

In its judgment of 24 October 1979, the Court reserved the whole of the question of the application of Article 50. The Commission was invited to submit to the Court, within two months from the delivery of the judgment, the Commission's observations on that question and,

in particular, to notify the Court of any settlement at which the Government and the applicant might have arrived (see point 5 of the operative provisions and paragraphs 77–78 of the reasons, ibid., pp. 29–30).[6]

4. As from 23 December 1979, Mr Winterwerp ceased to be subject to a detention order. According to the Government, this was not a result of the Court's judgment but in consequence of an improvement in Mr Winterwerp's mental condition; he nevertheless remained in need of medical care and treatment and the prognosis of the doctors treating him was that this would continue to be the case; he stayed on as a voluntary patient in the open wing of the Rijkspsychiatrische Inrichting (State Psychiatric Establishment) at Eindhoven.

5. By Order of 27 December 1979, the time-limit granted to the Commission for the filing of its observations was extended by two months by the then President, Mrs H. Pedersen.

Following Mrs Pedersen's death on 27 January 1980, Mr Matscher, then the first substitute judge, became a member of the Chamber (Rule 22 § 1 of the Rules of Court) and Mr Evrigenis assumed the office of President of the Chamber (Rule 21 § 5).

On 11 March 1980, Mr Evrigenis suspended the said time-limit until further order, pending the outcome of settlement negotiations which had begun in February between the Government and the applicant's lawyer. From the outset, the principal claim of the applicant's lawyer was that his client should be placed in a gezinsvervangend tehuis (hostel), which is a private institution where persons formerly in need of psychiatric treatment in a hospital live together in small groups and where Mr Winterwerp could, as a person at liberty, feel at home in family-like surroundings, with some guidance and care from social and medical experts.

In answer to enquiries made by the Registrar, the Court was informed in March and April 1981 that the Commission, the Government and the applicant's lawyer wished the President's Order of 11 March 1980 to be maintained for some while longer as settlement negotiations were still in progress.

6. The Chamber held a meeting on 28 May 1981 to consider the state of the proceedings.

7. Shortly beforehand, by letter received, on 21 May, the Agent of the Government had announced that a settlement had been reached and that she hoped to send the text thereof ‘within a few weeks’.

The text of the agreement, signed by the applicant himself, his then guardian—duly authorised for this purpose by the competent court (Articles 345 and 388 of the Civil Code)—and the Agent of the Government, was received at the registry on 9 October. The material

parts read as follows (translation from the Dutch original—provided by the Government):

‘Considering,

• (a) …

• (b) …

• (c) …

• (d) that in the opinion of the State [of the Netherlands (‘the State’)], the State could not be considered under Article 50 of the Convention to be obliged to perform the provisions of the operative paragraphs 1 and 2 of this agreement, and that therefore the State voluntarily accepts to perform those provisions;

• (e) that Mr Winterwerp does not share the view stated under (d), and is of the opinion that on account of the violation of the Convention established by the European Court the State is definitely bound to pay him compensation, a compensation at least equal to the performance which the State has (voluntarily) agreed to under (1) and (2) below;

• (f) that the State and Mr Winterwerp wish, however, to avoid further proceedings;

• (g) that the parties, therefore, enter into the following agreement:

  • (1) the State shall promote that Mr Winterwerp be placed as soon as possible in a hostel. The State Psychiatric Establishment at Eindhoven is and will remain prepared to give Mr Winterwerp medical treatment whenever this might be necessary;

  • (2) the State shall transfer a lump sum of Fl. 10,000 (ten thousand guilders) to [Mr Winterwerp's new guardian] to be used for the resocialisation of Mr Winterwerp.

Parties hereby declare that they have reached an amicable settlement and have no further claims against each other.’

The Agent of the Government explained that the sum of 10,000 guilders was intended to be used as financial assistance in connection with additional costs, not covered by social security legislation, likely to confront Mr Winterwerp once he is admitted to a hostel.

8. By Order of 12 October, the President of the Chamber directed...