Application No. 12535/86
                      by J.W.
                      against the Netherlands

        The European Commission of Human Rights sitting in private
on 9 December 1987 the following members being present:

              MM. C. A. NØRGAARD, President
                  J. A. FROWEIN
                  S. TRECHSEL
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J. C. SOYER
                  H. G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
             Mrs.  G. H. THUNE
             Sir  Basil HALL
             Mr.  F. MARTINEZ
             Mr.  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  H. C. KRÜGER Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 17 October 1986
by J.W. against the Netherlands and registered
on 20 October 1986 under file N° 12535/86;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent
Government on 26 May 1987 and the observations in reply submitted by
the applicant on 14 August 1987;

        Having deliberated;

        Decides as follows:


        The facts of the case as they have been submitted by the
applicant may be summarised as follows.

        The applicant is a Dutch citizen, born in 1942.  At
present he resides at K., the Netherlands.  In the
proceedings before the Commission he is represented by Mrs.  G.E. Later,
a lawyer practising at The Hague.

        On 15 November 1985, the applicant was detained by order of
the Burgomaster of Emmen, issued on the basis of Section 35 c para. 3
of the Mentally Ill Persons Act (Krankzinnigenwet), and subsequently
taken to a psychiatric hospital.

        On 19 November 1985, the public prosecutor of Assen requested
the prolongation of the applicant's detention.  On 20 November 1985,
the applicant was heard by the President of the Regional Court
(Arrondissementsrechtbank) of Assen, who subsequently also heard three
other persons among whom the applicant's house doctor, by telephone.

        The hearing of the applicant took place in the presence of his
"confidential counsellor" (patiëntenvertrouwenspersoon) Mr.
J..  After hearing the three other persons by telephone, the
judge also telephoned to Mr.  J. and told him that these
persons had not adduced any new arguments in addition to the facts
which were already known from the documents.  According to Mr.
J., this telephone conversation between him and the judge
only lasted about ten minutes.

        On 25 November 1985, the President decided that the
applicant's detention should continue.

        The applicant was discharged from the hospital in the middle
of December 1985.

        On 24 January 1986, the applicant appealed against the
decision of 25 November 1985 to the Supreme Court (Hoge Raad), but on
18 April 1986 this appeal was declared inadmissible on the ground that
the applicant had already been discharged and that he therefore no
longer had any interest in his appeal.


        The applicant whilst invoking Article 5 para. 1 (e) of the
Convention complains that his detention was not lawful under Dutch law
because he did not, on account of mental derangement, represent such a
danger to himself, to others or to public safety as to make his
detention necessary or desirable.  In addition, no minutes were made
of the hearing before the President of the Regional Court and the
court registrar was not present.  Furthermore, the president of the
Regional Court based his decision on information obtained in the
applicant's absence and of which he was not apprised.

        The applicant also complains that the Supreme Court failed to
examine the legality of his detention contrary to Article 5 para. 4 of
the Convention.

        On the basis of his allegations under Article 5 para. 1 and 4,
the applicant claims that he is entitled to compensation under
Article 5 para. 5.

        Finally, the applicant complains that he did not have a fair
trial and he has invoked Article 6 para. 1 of the Convention in this


        The application was introduced on 17 October 1986 and
registered on 20 October 1986.

        On 6 March 1987 the Commission decided to communicate the
application to the respondent Government for observations on
admissibility and merits.  These observations were received on
26 May 1987 and the applicant's reply on 14 August 1987.


A.      The Government

        It is admitted that the President of the Regional Court in
Assen based his decision of 25 November 1985, inter alia, on
information which he obtained by telephone.  The President then phoned
the applicant's confidential counsellor on 21 November 1985 and asked
for his comments on this information.  This procedure complied, so the
respondent Government submit, with the requirements laid down by the
Netherlands Supreme Court in a decision of 8 July 1985 taken in
application of Section 35 i of the Mentally Ill Persons Act as
interpreted in the light of Article 5 of the Convention.  It follows
from that decision that it complies with the procedural requirements
if the President informs the patient or his counsel by telephone or
otherwise of the result of his telephone inquiries.

        It is furthermore admitted that, contrary to Article 72 (1) of
Regulation I implementing Section 19 of the Judicial Organisation Act,
a court registrar did not participate at the hearing of the applicant
nor was an official report drawn up of the hearing.  Nevertheless, the
applicant's detention was lawful as the Regional Court's President
rightly deduced from the facts and circumstances stated in the medical
report and in the report by the Emmen Municipal Police that the
applicant represented a danger to public order and to himself on
account of his mental derangement.

        The Court's President would not have reached a different
decision if a registrar had been present at the hearing and had drawn
up a report.  The absence of a court registrar did not in any way
affect the applicant.

        Consequently the applicant did not suffer any damage and has
no claim under Article 5 para. 5 of the Convention.  Were he to be
considered as a victim of a contravention of Article 5, he could have
instituted civil proceedings against the State under tort law.  In the
absence of concrete damage such proceedings would, however, not have
offered chances of success.

        Finally, the Government state that a patient detained under
the Mentally Ill Persons Act does not lose the capacity to administer
his property.

B.      The applicant

        The applicant points out that neither he nor his counsel were
informed by the Regional Court's President of the result of his
telephone inquiries.  He submits that there is nothing to show that
the confidential counsellor was kept informed and that his comments
were taken into consideration by the President.  In any case it is
questionable whether information to the confidential counsellor only
is sufficient.

        As regards the requirement of the presence of a court
registrar at the hearing, the applicant considers that procedural
guarantees should be respected.  Had a registrar drawn up a verbatim
record, this could have proven that there had been no reasons to
commit the applicant to a mental hospital.  In the absence of a
verbatim record the documents in his case only reflect the views of
those who advocated his committal to a mental hospital.

        The applicant also considers that the respondent Government's
observations disregard his complaint that the Supreme Court declared
his appeal in cassation inadmissible and thereby deprived him of the
opportunity to have the lawfulness of his detention determined.


        The applicant mainly complains that his detention was not
lawful under Dutch law and that the Supreme Court failed to examine
the legality of his detention.  He also complains of the proceedings
before the President of the Regional Court.  He invokes Article 5 paras. 1(e),
4 and 5 (Art. 5-1-e, 5-4, 5-5) as well as Article 6 para. 1 (Art. 6-1) of the

        Article 27 para. 2 (Art. 27-2), in requiring the Commission to declare
inadmissible any application from an individual, a non-governmental
organisation or group of individuals which it considers to be
manifestly ill-founded, does not permit the Commission, at the stage of
admissibility, to reject a complaint which cannot so be described.

        In the present case the Commission has carried out a
preliminary examination of the information and arguments submitted by
the parties.  The Commission finds that these raise substantial issues
of interpretation and application of the Convention, in particular of
Article 5 (Art. 5), which are of such complexity that their determination
should depend upon an examination of their merits.

        Consequently, the application cannot be regarded as manifestly
ill-founded, and since no other ground of inadmissibility has been
found, the Commission considers that the application must be declared

        For these reasons, the Commission

        without prejudging the merits of the case.

Secretary to the Commission               President of the Commission

   (H.C. KRÜGER)                               (C.A. NØRGAARD)