Winterwerp v. Netherlands

Winterwerp brought an action against the Netherlands following his detention in a psychiatric hospital.

Winterwerp was committed to a psychiatric hospital in accordance with the emergency procedure then in force under the Act on State Supervision of Mentally Ill Persons. Six weeks later, during Winterwerp’s emergency detention, his wife applied for his provisional detention at the hospital in the interests of public order as well as in the interest of her husband. The application was accompanied by a medical declaration, made out by a general medical practitioner, who had examined Winterwerp for the first time that day. The District Court authorized the provisional detention without hearing Winterwerp or seeking expert advice. Winterwerp’s wife then applied to the Regional Court for a one-year detention order in respect of her husband, which was granted and prolonged 10 times for a further year each time. During his detention, he also lost the legal capacity to administer his property.

Winterwerp applied to the hospital authorities for his discharge. The request was eventually referred to the Regional Court, who dismissed it. The Public Prosecutor then rejected Winterwerp’s request to refer his detention to the Regional Court for further review on three subsequent occasions.

Winterwerp alleged that he had been arbitrarily deprived of his liberty in violation of article 5(1) of the European Convention on Human Rights (ECHR), and that he had not been given a hearing to challenge his detention or been informed of the decisions to prolong it, in violation of articles 5(4) and 6(1) of the ECHR. He argued further that article 5(1)(e) of the ECHR, which provided for detention of persons of unsound mind, entailed the right to appropriate treatment so that persons were not detained longer than was necessary, and that he had not received such treatment.

The Court held that the Netherlands had infringed articles 5(4) and 6(1) of the ECHR by failing to provide mental patients with the ability to challenge their detention, but dismissed the claim under article 5(1) that the detention itself was unlawful.

The Court considered that Winterwerp’s initial detention had been lawful under article 5(1)(e), as the decision had been made on appropriate medical evidence and could not be considered arbitrary. Although the length of the emergency detention period might be concerning, it was not so long as to render the detention unlawful. Furthermore, a right to treatment so as to reduce the length of detention could not be derived from art 5(1)(e).

However, the Court considered that article 5(4) required periodic review of the continued need for detention (after the initial decision) in cases where the circumstances justifying detention might change over time, such as mental health cases. As the relevant Dutch legislation authorizing Winterwerp’s detention did not require such reviews, the Netherlands was in violation of article 5(4). Furthermore, although detained patients such as Winterwerp could ask the Public Prosecutor to refer a request for discharge to a regional court, and could apply to the regional court if he could show a substantial ground for wrongful detention, the Court considered that these procedures were insufficient because they did not give detained patients a right to obtain review of their detention and in many cases would not give them a realistic prospect of review.

Finally, the Court held that article 6(1) of the ECHR had been breached, because Winterwerp had not been given a chance to be heard before being deprived of the legal capacity to administer his property. The Court found that he had lost this capacity after he was placed under emergency detention, and that at no point had he been given a chance to be heard during these proceedings.

“In the Court’s opinion, except in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to  be of "unsound mind". The very nature of what has to be established before the competent national authority  -  that is, a true mental  disorder  -  calls for objective medical expertise.  Further, the  mental disorder must be of a kind or degree warranting compulsory  confinement.  What is more, the validity of continued confinement depends upon the persistence of such a disorder.” Para. 39.

“In the Court’s view, the events that prompted the burgomaster’s direction in May 1968 (see paragraph 23 above) are of a nature to   justify an “emergency” confinement of the kind provided for at that time under section 14 of the Netherlands Act.  While some hesitation  may  be felt as to the need for such confinement to continue for as  long as six weeks, the period is not so excessive as to render the  detention “unlawful”.  Despite the applicant’s criticisms, the Court has no reason whatsoever to doubt the objectivity and reliability of the medical evidence on the basis of which the Netherlands courts,  from June 1968 onwards, have authorised his detention as a person of  unsound mind.  Neither is there any indication that the contested deprivation of liberty was effected for a wrongful purpose.” Para. 42

“The judicial proceedings referred to in Article 5 para. 4 (art. 5-4)  need not, it is true, always be attended by the same guarantees as  those required under Article 6 para. 1 (art. 6-1) for civil or  criminal litigation (see the above-mentioned De Wilde, Ooms and Versyp  judgment, p. 42, para. 78 in fine).  Nonetheless, it is essential  that the person concerned should have access to a court and the  opportunity to be heard either in person or, where necessary, through  some form of representation, failing  which he will not have been  afforded "the fundamental guarantees of procedure applied in matters  of deprivation of liberty" (see the  last-mentioned judgment, p. 41, para. 76).  Mental illness may entail restricting or modifying the  manner of exercise of such a right (see, as regards Article 6 para. 1  (art. 6-1), the above-mentioned Golder judgment, p. 19, para. 39),  but it cannot justify impairing the very essence of the right.  Indeed, special procedural safeguards may prove called for in order  to protect the interests of persons who, on account of their mental  disabilities, are not fully capable of acting for themselves.” Para. 60

“Whatever the justification for depriving a person of unsound mind of the capacity to administer his property, the guarantees laid down in  Article 6 para. 1 (art. 6-1) must nevertheless be respected.  While, as has been indicated above in connection with Article 5 para. 4 (art. 5-4) (see paragraphs 60  and 63), mental illness may render legitimate certain limitations upon  the exercise of the "right to a court", it cannot warrant the total   absence of that right as embodied in Article 6 para. 1 (art. 6-1).” Para. 75