Van Der Leer v The Netherlands (Series A, NO 170; Application No 11509/85) EUROPEAN COURT OF HUMAN RIGHTS (1990) 12 EHRR 567, 7 BMLR 105, 21 FEBRUARY 1990

Compulsory confinement in a Psychiatric Hospital without a Hearing

FACTS:
The applicant voluntarily entered a psychiatric hospital to receive treatment. A month latter, a judge confined her to the hospital for six months without holding a hearing. The applicant was not notified of this order and discovered her confinement by accident. The board refused to discharge her. The applicant filed this suit alleging violation of Articles 5(1), (2) and (4) and 6(1) of the European Court of Human Rights

OPINION:
1. Detention: lawfulness, prescribed by law, right to be heard.

Article 5(1) of the Convention suggests an essential procedural requirement; namely that any deprivation of liberty must not be arbitrary. In this case, the Court judge did not hear the applicant before authorizing confinement in the psychiatric ward.

2. Detention: right to be informed, arrest and charge.

The court interpreted the term 'arrest' in Article 5(2) broadly arguing that it encompassed any deprivation of liberty. Hence, the court deduced that the right of a defendant to obtain law a speedy trial of hearing applies to both criminal arrests and psychiatric detentions (Article 5(4) does not draw that distinction). These speedy proceedings are not effective unless the defendant is promptly and adequately informed of the proceedings as well as reasons for the detention or arrest. In this case the applicant was not informed of the proceedings or of the Court's decision in a manner that satisfied the requirements of Article 5(2).

The following cases were referred to in the judgment:

1. BOUAMAR v BELGIUM, (1989) 11 EHRR 1.
2. BOZANO v FRANCE, (1987) 9 EHRR 927.
3. DE WILDE, OOMS AND VERSYP v BELGIUM (no 1), 1 EHRR 373.
4. WINTERWERP v THE NETHERLANDS, 2 EHRR 387.
5. X v UNITED KINGDOM, (1982) 4 EHRR 188.

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