SILVA ROCHA v. PORTUGAL (82/1995/588/674) 15 November 1996: detention in a psychiatric hospital for a minimum period of three years of person prosecuted for homicide and found not to be criminally responsible on account of his mental disturbance

SUMMARY

Portugal - detention in a psychiatric hospital for a minimum period of three years of person prosecuted for homicide and found not to be criminally responsible on account of his mental disturbance

Article 5 4 of the Convention

Detention in question covered both by subparagraph (a) of Article 5 1 and subparagraph (e) - the two situations envisaged by those provisions, which were not mutually exclusive, coexisted.

As regards minimum period of three years, the review required under Article 5 4 was incorporated in the detention decision - circumstances of the case justified applicant's removal from society for at least three years.

Right to bring proceedings within meaning of Article 5 4 took effect after that period - in that connection intervals between the decisions given in this case under procedure for judicial review of the lawfulness of the detention were not excessive.

Conclusion: no violation (six votes to three).

ALLEGED VIOLATION OF ARTICLE 5 4 OF THE CONVENTION

23. Mr Silva Rocha complained that he was unable to have the lawfulness of his continued detention reviewed at reasonable intervals. He relied on Article 5 4 of the Convention, which is worded as follows:

"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."

He submitted in substance that the effect of Article 91 2 of the Portuguese Criminal Code, taken in conjunction with Articles 92, 93 and 94 of that Code, was to create a situation that was incompatible with the Convention.

He observed that the Oporto Criminal Court had found that he was not criminally responsible (see paragraph 10 above). It followed, in his view, that the only justification for his detention could be the danger that he represented for society. That danger was capable of evolving with the passing of time and consequently, in accordance with Article 5 4, judicial review of the extent to which it persisted had to be available at reasonable intervals.

The applicant complained that in any event he could be discharged only after three years even if was established before the expiry of that period that he was no longer dangerous. Under the rules in issue there was therefore, he argued, no judicial review of the lawfulness of the detention before the expiry of the period, and that could not be regarded as reasonable under the Court's case-law.

The amendments to the legislation introduced by Legislative Decree no. 48/95 of 15 March 1995 (see paragraph 19 above) showed that the respondent State had recognised that the rules applied in the applicant's case were not compatible with Article 5 4 of the Convention.

24. The Government contended that the review of the lawfulness of the detention was incorporated in the initial judicial decision, given at the conclusion of judicial proceedings. The question whether the review required by Article 5 4 had been available could only apply to later decisions on the continuation of the detention. The law provided for automatic review of the lawfulness of the detention three years after its beginning.

By laying down a minimum period of three years, the Criminal Code attributed to the security measure provided for in Article 91 a separate purpose of general prevention. In the instant case, the court had imposed a period of that length because special reasons relating to the protection of public order and the legal system so required. The applicant had taken away a human life and there was a risk of his re-offending. The aim of general prevention explained the deduction by the court of the period of detention on remand from the three-year period. In addition, the security measure imposed on Mr Silva Rocha had been proportionate to the seriousness of the offence committed.

There could be no question of a review for the purposes of Article 5 4 of the Convention until the expiry of the minimum period, at which point only specific grounds of prevention were in issue.

Furthermore it had been open to the applicant at any time to bring habeas corpus proceedings for the review of the lawfulness of his deprivation of liberty, even if he could not have been discharged during the three-year minimum period.

25. The Commission took the view that the Court's reasoning in the cases of Winterwerp v. the Netherlands (judgment of 24 October 1979, Series A no. 33) and X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46) applied to Mr Silva Rocha's situation. Even though a minimum period of three years had been imposed, his detention was a deprivation of liberty on grounds which by definition were capable of evolving with the passing of time. The review of the lawfulness of such a measure could not be incorporated in the initial judicial decision. During a period of nearly two years - between the initial decision of 13 July 1990 and the first review decision of 29 June 1992 -, the applicant, who had been detained within the meaning of Article 5 1 (e), had had no possibility of being discharged and any application for release had been bound to fail. The Commission accordingly concluded that such a lapse of time was "manifestly excessive" (see the Luberti v. Italy judgment of 23 February 1984, Series A no. 75, p. 16, 34, and the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 24, 77).

26. The Court notes that the Oporto Criminal Court found that the established facts constituted the offences of which the applicant had been accused, namely aggravated homicide and unlawful possession of arms. It also found that, on account of the mental disturbance from which he suffered, he could not be held criminally responsible and was at the same time dangerous. It was for these reasons that it ordered, in accordance with Articles 20 1 and 91 2 of the Criminal Code, his detention in a psychiatric institution for a minimum period of three years (see paragraphs 10 and 19 above).

27. The applicant was accordingly lawfully detained pursuant to a decision which, in the circumstances of the case, was both a "conviction by a competent Court" within the meaning of Article 5 1 (a) of the Convention and a security measure taken in relation to a "person of unsound mind" within the meaning of Article 5 1 (e).

In the present case these two situations, which are not necessarily mutually exclusive, coexisted.

28. The case involved a homicide committed by a person who could not be held responsible for his actions and who was at the same time dangerous. The seriousness of the offences together with the risk that he represented for himself as well as for others could reasonably justify his being removed from society for at least three years.

29. For that period the review required by Article 5 4 of the Convention was incorporated in the detention decision taken in this instance by the Oporto Criminal Court.

30. It was therefore not until those three years had elapsed that the applicant's right to "take proceedings by which the lawfulness of his detention shall be decided ... by a court" at reasonable intervals took effect.

In this respect the Court notes that the legislation applied to Mr Silva Rocha (Article 93 of the Criminal Code, see paragraph 19 above) provided for a periodic and automatic judicial review after two years and made it possible for the person detained to apply to the court at any moment to have the detention measure lifted (see, mutatis mutandis, the X v. the United Kingdom judgment of 5 November 1981 (Series A no. 46, p. 23, 52).

31. In the present case, after the judgment of 13 July 1990 (see paragraph 10 above) judicial reviews took place between 21 March and 29 June 1992 (see paragraphs 12 and 13 above), in February 1993 (see paragraph 14 above), between 19 March and 3 May 1993 (see paragraphs 15 and 16 above) and over a period from the summer of 1993 to 9 January 1994 (see paragraphs 17 and 18 above).

The Court considers that the intervals between the different reviews were not excessive. It notes that Mr Silva Rocha was discharged as soon as he had ceased to be regarded as dangerous.

32. In conclusion, the Court finds that the applicant had the possibility of having the lawfulness of his detention reviewed at reasonable intervals and that there has therefore been no violation of Article 5 4 of the Convention.

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