Application no. 5379/02 
by Bensaid NAKACH 
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 January 2005 as a Chamber composed of

Mr B.M. Zupančič, President
 Mr L. Caflisch
 Mr C. Bîrsan
 Mrs M. Tsatsa-Nikolovska
 Ms R. Jaeger
 Mr E. Myjer, 
 Mr David Thór Björgvinsson, judges, 
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 19 October 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:


The applicant, Mr Bensaid Nakach, is a Moroccan national, who was born in 1944. At the time of the events complained of, he was detained in a secure institution, the Forensic Psychiatric Centre “Veldzicht” in Balkbrug, Netherlands (hereinafter “Veldzicht”); in July 2002 he was transferred to the secure institution “De Kijvelanden” in Poortugaal, near Rotterdam, Netherlands. He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. The respondent Government are represented by Mr R.A.A. Böcker and Ms H.L. Janssen of the Netherlands Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 7 February 1994 the applicant hit his wife, Mrs K., on the head, the shoulders and the back with the blunt edge of a meat cleaver, choked her and kicked her in the face. Mrs K. was injured but survived.

The applicant was arrested and subjected to psychiatric examination by State-appointed psychiatrists.

On 10 October 1994 the Breda Regional Court convicted the applicant of attempted manslaughter. In the light of a psychiatric report which found the applicant's mental powers to be deficient and the chance of his re-offending to be high, it sentenced him to one year's imprisonment and ordered his placement at the Government's disposal (terbeschikkingstelling van de regering) with confinement in a secure institution.

The applicant appealed.

A report was prepared by a counter-expert, Dr E., according to which the act with which the applicant was charged could be explained with reference to the applicant's cultural background. Dr E. had published the results of research relevant to such problems.

On 10 October 1995 the 's-Hertogenbosch Court of Appeal upheld the judgment of the Regional Court. In so doing it had regard to, among other things, the report of the State-appointed psychiatrists.

The applicant lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), which was dismissed on 1 October 1996.

The time which the applicant had spent in detention on remand counting towards the sentence, the order placing the applicant at the Government's disposal therefore went into force on that date.

The applicant was kept detained in a remand centre (huis van bewaring) pending placement in a secure institution.

The placement order was prolonged for an additional two years in September 1998.

On 10 May 1999 the applicant was transferred to the secure institution “Veldzicht” in Balkbrug. The competent authority, recognising that the applicant had had to wait for a considerable time to be moved to a setting appropriate to his established mental condition, awarded him financial compensation for any harm caused thereby on 19 October 1999.

On 29 September 2000 the Breda Regional Court extended the applicant's placement order for a further two years.

The applicant appealed to the Arnhem Court of Appeal (gerechtshof).

A hearing was held on 9 April 2001. The Court of Appeal considered a psychiatric report submitted by Veldzicht, according to which the applicant was excessively suspicious; suffered from delusions and was lacking in introspective, rational, social and empathic powers; and refused treatment. It also heard expert evidence given by one Dr. D., a psychologist who was a member of the Veldzicht staff, who stated that the applicant was unco-operative, refused medication and had tried to escape from the institution by taking someone hostage.

The applicant's counsel denied that the applicant posed any danger justifying his continued detention. He asked for the applicant to be examined by a psychiatrist of Moroccan origin who had no ties with Veldzicht. He submitted that there was such a psychiatrist in The Hague who was a recognised forensic expert.

The Court of Appeal gave its decision on 23 April 2001. The summaries of the Veldzicht report and of the statements of Dr. D. and the applicant's counsel cover about a page and a half.

It found, based on the Veldzicht report and the statement of Dr. D., that the applicant's continued placement at the Government's disposal remained necessary in the interest of public safety. It refused to hear further evidence, expert or otherwise, on the ground that there was no apparent need for any, and the information available on which to base a decision was enough.

On 28 June 2001 the applicant's counsel wrote to the Court of Appeal asking for a copy of the official record of the hearing of 9 April.

A reply dated 11 July 2001, on stationery bearing the letterhead of the vice-president of the Court of Appeal in charge of criminal cases (the signature is illegible), contains the following passage:

“In reply to your request of 28 June last I must inform you that no official records are usually made of hearings of the criminal division concerning prolongations of placements at the Government's disposal. The reason is that no ordinary remedy lies against the decisions concerned and the workload of the Court of Appeal does not admit of structural activities 'just to fill the archives' (voor het archief). For that reason, also, the decisions in question tend to render the statements made more extensively than would be the case if in fact an official record were prepared (in addition).”

B.  Relevant domestic law

1. The Criminal Code

A person who has been found guilty of certain serious crimes and who, at the time of committing the offence, suffered from a mental deficiency or derangement may be placed at the Government's disposal if required in the interests of the safety of others or, more generally, in the interests of the safety of persons or goods. Such a measure, which is not considered a punishment, may be imposed instead of or together with a prison sentence (Article 37a §§ 1 and 2 of the Criminal Code). The sentencing court may further decide that the person concerned shall be confined in a secure institution in the interests of public safety (Article 37b § 1).

According to Article 38d of the Criminal Code the person concerned shall be placed at the disposal of the Government for an initial period of two years which may be prolonged, at the request of the public prosecutor, for a further period of one or two years. The period of placement cannot be extended beyond a total of four years unless the crime committed by the person concerned was a crime of violence committed against, or causing danger to, one or more persons, or such further extension is necessary for the protection of other persons (Article 38e).

2. The Code of Criminal Procedure

A hearing shall be held in public before the review chamber (raadkamer) of the Regional Court (Article 509m § 1). Article 25 provides that an official record of the hearing shall be drawn up by the registrar (griffier).

If the person placed at the Government's disposal is confined in a secure institution, the request of the public prosecutor for the prolongation of such placement shall be accompanied by a recent advisory opinion of the head of the institution concerned, which shall be reasoned and signed, and a copy of the notes kept concerning the person's physical and mental health (Article 509o § 2). If a prolongation is sought which will result in the total duration of the placement exceeding six years or a multiple of six years, the public prosecutor shall also submit a recent advisory opinion, which shall be reasoned and signed, of two behavioural experts, one of whom shall be a psychiatrist, but neither of whom shall be connected to the institution where the person concerned is confined, or else one such advisory opinion from each expert (Article 509o § 4).

An appeal against the decision of the Regional Court lies to the Arnhem Court of Appeal (Article 509v § 1).

The Court of Appeal's decision, which shall be reasoned, is final (Article 509x § 2).


The applicant complained under Article 5 § 1 of the Convention of a failure to follow a procedure prescribed by law in that no official record was drawn up of the hearing before the Arnhem Court of Appeal.

He also complained under Article 5 §§ 1 (e) and 4 and Article 6 § 3 (d) of the Convention about the failure to appoint a counter-expert of his choosing.


The applicant complains of various breaches of the Convention, involving Article 5 §§ 1 (e) and 4 and Article 6 § 3 (d).

Article 5 §§ 1 and 4, in relevant part, provide as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:


(e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;


4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. ...”

Article 6 § 3 (d) provides as follows:

“1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ...

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A. Absence of an official record of the Court of Appeal's hearing

The applicant alleged that Article 25 of the Code of Criminal Procedure, which requires an official record to be drawn up of hearings in camera, had been disregarded by the Court of Appeal. From this it followed, in his submission, that the prolongation of his placement at the Government's disposal with confinement to a secure institution had not been ordered “in accordance with a procedure prescribed by law”, as required by Article 5 § 1 of the Convention.

The Government admitted that it was the normal practice of the Arnhem Court of Appeal not to draw up a separate official record in cases of this nature, thus saving time and money. Instead, a summary of what was said by the person concerned or his counsel was incorporated in the document containing the decision. The Government submitted that this was sufficient to satisfy domestic law. In any event, they argued, an official record in the form of a separate document would have had no added value whatsoever for the applicant.

The applicant pointed to the terms of Article 25 of the Code of Criminal Procedure, paraphrased above. An official record of a hearing was, in his submission, a record of what was said and done during a hearing, and was therefore entirely different in nature from a judicial decision which followed a hearing in time.

In the applicant's submission, the Code of Criminal Procedure also recognised the difference in principle between decisions and official records of hearings. He quoted a large number of domestic legal provisions in support of this argument, as well as a number of comments by learned authors and the drafting history of the legal provision concerned.

The applicant cited three judgments of the Supreme Court (Hoge Raad). The first was a judgment of 28 February 1962, Nederlandse Jurisprudentie (Netherlands Law Reports) 1964, no. 291, in which a decision of a trial court was declared null and void because the official record of the hearing at which it was delivered was not contained in the case file, so that it could not be established that delivery had taken place in accordance with the prescribed formal requirements, including that of publicity. The Supreme Court accepted that the judgment's delivery in public was noted in the judgment itself, but that was not sufficient since, with regard to formalities to be observed at hearings, the law had attributed evidentiary value only to the official record. The two other judgments cited were those delivered by the Supreme Court on 6 June 1998 (Nederlandse Jurisprudentie 1998, no. 838) and on 22 March 1998 (Nederlandse Jurisprudentie 1998, no. 438) in which decisions were declared null and void on the ground that, there being no official record in each case of the hearing in camera, it had to be assumed that no such hearing meeting the appropriate formal requirements had in fact been held.

Finally, the applicant argued that the added value of a separate official record of the hearing was its character as a public record of everything that was actually discussed at the hearing, perhaps including matters which did not make their way into the eventual decision.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

B. Failure to appoint a counter-expert

The applicant complained of the failure to appoint an independent expert to assess his mental state. In his submission the expert reports available to the domestic courts, having been prepared by experts employed by the respondent Party and belonging to the institution itself where he was forced to remain for compulsory treatment, could not be accepted as satisfactory in this respect. He relied on Article 5 §§ 1 (e) and 4 and Article 6 § 3 (d) of the Convention.

1. Whether the domestic remedies have been exhausted

The Government argued, in the first place, that the Court of Appeal had been perfectly entitled to deny the applicant's requests for the appointment of a counter-expert at the expense of the State. If the applicant considered a second opinion to be in his interests, he could have been expected to meet the concomitant expense out of his own pocket.

In the second place, the Government pointed to the possibility for the applicant to lodge a disciplinary complaint against the court experts whom he considered to lack sufficient independence. This would have provided him with an opportunity to have the experts' independence and impartiality duly examined by an independent tribunal.

The applicant replied that he had fought the prolongation of his placement at the Government's disposal before the competent authorities; the final decision was that of the Court of Appeal, against which no further appeal was possible. While it might be the case that the applicant could have initiated disciplinary proceedings against one or more of the court experts, this could not be considered a remedy appropriate to his complaint before the Court. Disciplinary proceedings were intended to maintain standards of quality within particular professions and might, at most, result in the imposition of sanctions on the person concerned; they did not preclude the use of a report by such person to inform a court decision.

The Court recalls that Article 35 § 1 of the Convention, in relevant part, provides as follows:

“The Court may only deal with the matter after all domestic remedies have been exhausted ...”

In Aquilina v. Malta [GC], no. 25642/94, § 39, ECHR 1999-III, the Court held as follows (case-law references omitted):

“The Court recalls that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied (...). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (...).”

In the present case, the Court notes that the applicant has stated in his application that he lacks the means to pay for a second opinion himself. The Government have not addressed this point in their observations. In the circumstances, the Court is not disposed to dismiss it out of hand.

For the remainder, the Court finds that the procedure followed by the applicant provided a remedy that he was entitled to consider “apparently effective”; consequently, the applicant cannot now be faulted for not having staked his case on any other.

It follows that this complaint cannot be declared inadmissible on the ground that the applicant has failed to exhaust the available effective domestic remedies.

2. The applicable Convention provision

The applicant bases this complaint on Articles 5 and 6.

The Court points out that Article 6 applies to the determination of “civil rights and obligations” or of a “criminal charge”. Paragraph 3 of that Article, on which the applicant relies in particular, contains guarantees applying to cases of the latter kind – those in which a “criminal charge” is determined.

In the present case, the determination of the “criminal charge” against the applicant resulted from the criminal proceedings against him, which came to an end when the Supreme Court delivered its judgment on 1 October 1996.

The public prosecutor's subsequent periodic requests for orders prolonging the applicant's placement at the Government's disposal with confinement in a secure institution initiated separate proceedings unrelated, as such, to the original criminal charge. The question to be considered in these proceedings was, and is, whether the applicant's mental state requires him to be detained for an additional period in order to ensure the safety of persons – especially other persons – or goods.

Admittedly, deprivation of liberty can fall within the ambit of both Article 5 § 1 (a) and Article 5 § 1 (e) but no problem arises in the present case as regards compliance with the requirements of sub-paragraph a (see X v. the United Kingdom, judgment of 5 November 1981, Series A no. 46, pp. 17-18, § 39).

It is clear, therefore, that the guarantees contained in Article 6 § 3 of the Convention cannot apply directly to proceedings such as those here at issue.

The provision relevant to the applicant's detention, for the purposes of the Court's examination of the case, is thus Article 5 § 1 (e). The Court will therefore consider the applicant's complaint about the rejection of his request to appoint a counter-expert under Article 5 § 4 taken together with that provision.

3. Whether the complaint is manifestly ill-founded

a. Arguments before the Court

The Government argued that no violation of Article 5 §§ 1 (e) and 4 could be found in any case. Referring to the Court's case-law under Article 6 §§ 1 and 3 (d) of the Convention by analogy, and particular to the Bönisch v. Austria judgment of 6 May 1985, Series A no. 92, pp. 14-15, § 29, they proceeded on the assumption that the case should be considered from the angle of “fairness” of the proceedings as a whole.

The Government acknowledged that the experts who examined the applicant were in their pay, but stated that they worked in complete independence. Again citing Bönisch, this time a contrario (loc. cit., pp. 15-16, §§ 31-33), they expressed the view that the neutrality of these experts was beyond dispute. They further pointed to the fact that expert witnesses were put on oath when they testified in that capacity, in order to stress their independence.

The applicant argued that these particular experts were not only State employees but also lacked guarantees of independence. Thus, their appointment and careers depended on hierarchical superiors within the civil service, and they could be subjected to discipline and dismissal if they incurred their superiors' disapproval.

The lack of independence of the experts in the applicant's case was given additional poignancy by the fact of their being attached to the institution where the applicant was detained; it could be expected that they would feel bound to justify that institution's treatment of the applicant.

In addition, in this particular case the importance of an independent expert opinion was shown by the report submitted in 1995, in the course of the proceedings which led to the applicant's conviction. This report, by Dr E., an independent expert conversant with the applicant's culture, had made it clear that the applicant's crime could be explained in cultural terms rather than in terms of psychopathology. However, the 's-Hertogenbosch Court of Appeal had ignored this report without giving reasons.

Admittedly, the possibility existed for a person placed at the Government's disposal to commission an expert report at his own expense, but this possibility was illusory given that persons in such a position could not generate sufficient income to meet the high cost involved.

b. Applicable principles

The principles which emerge from the Court's case-law and which the Court considers applicable to cases such as the present are the following:

a) Article 5 § 4 provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court in the light, not only of domestic law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by paragraph 1: the scheme of Article 5 implies that the notion of “lawfulness” should have the same significance in paragraphs 1 (e) and 4 in relation to the same deprivation of liberty (see, inter alia, the above-cited X v. the United Kingdom, p. 25, § 57, and E. v. Norway, judgment of 29 August 1990, Series A no. 181-A, pp. 21-22, § 50).

b) An individual cannot be considered to be of “unsound mind” and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, and of sole relevance to the case at issue, the validity of continued confinement depends upon the persistence of such a disorder (see, among other authorities, Johnson v. the United Kingdom, judgment of 24 October 1997, Reports of Judgments and Decisions 1997-VII, p. 2409, § 60).

c) Article 5 § 1 (e) obviously cannot be taken as permitting the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society (see, as a recent authority, Herz v. Germany, no. 44672/98, § 47, 12 June 2003).

d) Article 5 § 4 requires that the procedure followed have a judicial character and give to the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether a proceeding provides adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceeding takes place (see Megyeri v. Germany, judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22).

e) It is for the authorities to prove that an individual satisfies the conditions for compulsory detention rather than the converse (Hutchison Reid v. the United Kingdom, no. 50272/99, § 71, ECHR 2003-IV).

c. Application of the above principles

In so far as the applicant asserts that his condition did not necessitate psychiatric confinement, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion, since it is in the first place for the national authorities to evaluate the evidence before them in a particular case (see, as a recent authority, Rakevich v. Russia, no. 58973/00, § 30, 28 October 2003).

Turning to the facts of the case, the Court notes that the prolongation of the applicant's placement at the Government's disposal with confinement in a secure institution was sought by the public prosecutor. The Court of Appeal, when called upon to decide on this request, had before it, in addition to the reports which informed the original placement order, a report prepared by the institution in which the applicant was detained and the oral evidence of a psychologist who was a member of that institution's staff. The Court of Appeal refused to order an examination of the applicant at public expense by a counter-expert chosen by him, who would have been able to explain the applicant's behaviour in terms of his cultural background rather than in terms of psychopathology.

The experts who reported on the applicant's mental state were in the pay of the State and attached to the institution in which the applicant was being held. It may well be that the applicant perceived them subjectively as instruments of his continued detention. It does not follow, however, that they should be considered “opponents” comparable from the applicant's perspective to the public prosecutor.

In the proceedings here at issue, these experts were called upon to provide expert information going to the question whether the applicant's “unsoundness of mind” still justified keeping the applicant deprived of his liberty. The fact that their information was such as to lead the Court of Appeal to answer this question in the affirmative does not, in itself, justify doubts as to their objectivity.

Nor does the fact that the experts were in the pay of the Government, since they themselves could neither initiate nor determine proceedings aimed at keeping the applicant confined. The Court also attaches a certain significance to the fact, stated by the Government in a different context but not per se disputed by the applicant (see above), that a demonstrable lack of integrity on the part of the experts in the performance of their duties makes them liable to disciplinary sanctions.

As to the applicant's request for the appointment of a counter-expert conversant with his particular cultural background, the Court notes that the report of precisely such an expert was submitted for examination to the court already in the criminal proceedings which led to his being placed at the Government's disposal. It appears that, for whatever reason, arguments based on this counter-expert's report were not then considered. However, the applicant was not prevented from restating such arguments in the proceedings here at issue. In the circumstances, therefore, the Court cannot consider arbitrary or unreasonable the refusal to order a further examination of the applicant at public expense, the result of which would, at best, be largely identical to information already available.

It follows that this complaint is manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Declares admissible, without prejudging the merits, the applicant's complaint that no separate official record was made of the Court of Appeal's hearing of 9 April 2001;

Declares the remainder of the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President