Quick answer
In Winterwerp v. the Netherlands (24 October 1979, application no. 6301/73), the European Court of Human Rights held unanimously that the compulsory confinement of a person of unsound mind did not breach Article 5 § 1, but that the lack of an adequate procedure to review the detention breached Article 5 § 4, and that the automatic loss of the capacity to administer his property breached Article 6 § 1. The judgment established the enduring conditions — the “Winterwerp criteria” — for the lawful psychiatric detention of “persons of unsound mind”.
Background and facts
Mr Winterwerp was compulsorily confined in a psychiatric institution in the Netherlands and remained detained for many years, his confinement being renewed by successive administrative and judicial decisions. He was not always heard in the renewal proceedings, had limited means of challenging his detention, and — as a consequence of the confinement — automatically lost the legal capacity to administer his own property.
The complaint
- Article 5 § 1 — the lawfulness of the detention;
- Article 5 § 4 — the absence of an effective procedure to review the detention; and
- Article 6 § 1 — the loss of the right to deal with his property without access to a court.
The Court’s reasoning
Article 5 § 1 (e) permits the lawful detention of “persons of unsound mind”, but the Court held that this term cannot justify detention simply because a person’s views or behaviour deviate from prevailing norms. It set out three minimum conditions for lawful detention on this ground: first, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; second, the disorder must be of a kind or degree warranting compulsory confinement; and third, the disorder must persist throughout the period of detention. On the facts, these conditions were met, so there was no breach of Article 5 § 1.
However, a person detained as being of unsound mind is entitled under Article 5 § 4 to take proceedings, at reasonable intervals, before a court to test the lawfulness of the detention. The Dutch procedures did not afford him that guarantee, so there was a breach. Finally, the automatic deprivation of his capacity to administer his property was a determination of “civil rights and obligations” in respect of which he had no access to a court, in breach of Article 6 § 1.
The judgment
- unanimously, no breach of Article 5 § 1;
- a breach of Article 5 § 4; and
- a breach of Article 6 § 1.
Legacy and subsequent case law
The “Winterwerp criteria” remain the foundation of the Convention law on psychiatric detention and are applied in every case concerning the confinement of persons of unsound mind. The judgment also confirmed the right of detained persons to periodic judicial review under Article 5 § 4, a guarantee developed in later cases such as X v. the United Kingdom.
What this means for applicants
- Psychiatric detention is lawful only if the Winterwerp criteria are met under Article 5 — objective medical evidence of a disorder warranting confinement, persisting throughout.
- Detainees are entitled to periodic judicial review of their detention.
- Loss of legal capacity engages fair-trial rights under Article 6.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did Winterwerp v. Netherlands decide?
The Court held that the psychiatric detention did not breach Article 5 § 1, but that the lack of an adequate review procedure breached Article 5 § 4 and the automatic loss of capacity to administer property breached Article 6 § 1. It set out the criteria for lawful detention of persons of unsound mind.
What are the “Winterwerp criteria”?
A true mental disorder must be established by objective medical expertise; it must be of a kind or degree warranting compulsory confinement; and it must persist throughout the detention.
Do detained psychiatric patients have a right to review?
Yes. Under Article 5 § 4 they are entitled to take proceedings at reasonable intervals before a court to test the lawfulness of their continued detention.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Sporrong and Lönnroth v. Sweden
- Del Río Prada v. Spain
- Kudła v. Poland
- Salduz v. Turkey
- Navalnyy v. Russia
- Guzzardi v. Italy
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