CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 mai 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                        Application No. 22520/93                        by Stanley JOHNSON                        against the United Kingdom        The European Commission of Human Rights sitting in private on 18 May 1995, the following members being present:              MM.    C.A. NØRGAARD, President                  H. DANELIUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  S. TRECHSEL                  A. WEITZEL                  H.G. SCHERMERS                  F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  B. CONFORTI                  N. BRATZA                  J. MUCHA                  E. KONSTANTINOV                  A. PERENIC                  C. BlRSAN              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 8 July 1993 by Stanley JOHNSON against the United Kingdom and registered on 24 August 1993 under file No. 22520/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      25 April 1994 and the observations in reply submitted on behalf      of the applicant on 18 July 1994;   -     the further observations submitted on behalf of the applicant on      4 May 1995;   -     the parties' oral submissions at the hearing on 18 May 1995;        Having deliberated;        Decides as follows:   THE FACTS        The facts as submitted by the parties may be summarised as follows.        The applicant is a British citizen born in 1947 and resident in Leicester. He is represented before the Commission by Mr. A.K. Bergman, a solicitor practising in Leicester.   A. Particular circumstances of the case        On 8 August 1984 the applicant was convicted of causing actual bodily harm, for which the maximum sentence is five years' imprisonment. The circumstances of the offence were that the applicant had, for no apparent reason, punched a pregnant woman in the stomach and head as she walked down the street. The applicant had been previously convicted of an assault on his mother in 1974, on a girl in 1977 and of two further assaults in 1981.        The applicant was, at the time of his conviction in 1984, found to be suffering from mental illness involving delusions of conspiracy and "astral beings". Therefore the trial court made him subject to a hospital order under section 37 of the Mental Health Act 1983, together with a restriction order under section 41 of the same Act. The hospital order specified that the applicant was suffering from "mental illness". The section 41 order imposed restrictions on his discharge without limit of time.        On 15 August 1984 the applicant was admitted to Rampton Hospital, a maximum security psychiatric institution, where he was diagnosed by the Responsible Medical Officer ("RMO") as suffering from schizophrenia superimposed on a psychopathic personality. Subsequently, the applicant's case was considered by various Mental Health Review Tribunals and the background to these reviews, together with the psychiatric and social work evidence before those Tribunals, is outlined below.        1986 Review        Before the Tribunal, the psychiatric reports of both the RMO and the applicant's psychiatrist confirmed the continued existence of mental illness in addition to a drug problem. The applicant was also reported as having been devious with staff and dishonest about his problems. Neither psychiatrist recommended any change in the applicant's status. On 17 December 1986 the Tribunal therefore ordered that the applicant continue to be detained.        1987 and 1988 Reviews        The applicant's case was again considered by the Tribunal on 14 August 1987 and 10 February 1988. No direction for discharge or reclassification was made, as it was found that the applicant required treatment in hospital for his own health and safety and for the protection of others.        1989 Review        Three reports were before the Tribunal. In the first place, the RMO reported that the applicant's psychotic symptoms had resolved themselves within six months of admission and that the applicant was free of any symptoms of mental illness. However the RMO noted that the applicant was in need of rehabilitation and was not therefore fit for full discharge. Secondly, an independent psychiatrist was of the view that the applicant was "a schizoid personality with a history of explosive anti-social behaviour induced by intoxication", that the applicant's own view of uncontrolled drinking was unattainable and that he would benefit from a stay in a hostel for people with drink problems as a half-way house prior to full discharge. Thirdly, a further psychiatric report before the Tribunal recognised the likelihood that the applicant had suffered from a brief drug-induced psychosis at the time of his offence and original admission to Rampton Hospital, found that by May 1989 the applicant was showing no evidence of mental illness and that under the circumstances the applicant was not detainable under the mental health legislation and should be discharged.         The Tribunal hearing took place on 15 June 1989 and held as follows:        "The Tribunal accepts the medical evidence that the patient is      not now suffering from mental illness. The episode of mental      illness from which he formally suffered has come to an end."        However, the Tribunal went on to note that the applicant had an unrealistic opinion of his ability to live on his own in the community after nearly five years in a hospital and required rehabilitation under medical supervision. The Tribunal was of the opinion that the recurrence of mental illness requiring recall to hospital could not be excluded without successful rehabilitation. The Tribunal therefore ordered the applicant's discharge to a supervised hostel and supervision by a psychiatrist and a social worker. The applicant's discharge was to be deferred until arrangements could be made for suitable accommodation.        1990 Review        The subsequent search for hostels proved difficult in light of those hostels' concern over the applicant's drinking problem and history of assaults on women. The Government also point out that the difficulty was partly due to the applicant portraying himself unfavourably during visits to hostels, thus making the hostels hesitant to accept him. One hostel was prepared to take the applicant but only after he spent a trial period in a less secure hospital environment. That hostel would have required the applicant to return every night, but otherwise the applicant would have been free to socialise and spend his days as he wished, including working if possible. A social work report dated 4 April 1990 noted that if the applicant was left to his own devices and discharged without support, he would get back into trouble quickly.        On 9 May 1990 the Tribunal, having heard the applicant who presented his own application, accepted the reasoning of the 1989 Tribunal, noted that the applicant would infinitely prefer absolute discharge, but felt that it was in the interests of the applicant and the public that "he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional". Thus it was recommended that he be conditionally discharged under supervision as soon as suitable accommodation could be found.        On 10 September 1990 the applicant commenced trial leave at another hospital which was less secure than Rampton Hospital. On 9 October 1990 the applicant, having been to a local pub, assaulted another patient (due, according to the applicant, to some provocation) and he was returned to Rampton hospital on 22 October 1990. The Government also submit that the applicant had terrorised staff at that hospital and rejected any attempt at rehabilitation. The applicant was given the choice to return to the pre-discharge unit at Rampton hospital, where he could pursue other pre-discharge possibilities, or to go to another ward containing more long-term patients. The applicant chose the latter option.        1991 Review        In December 1990 the applicant was reported, by his then supervising psychiatrist, as:        "suffering from an explosive disorder of personality which means      that when he is not in the middle of an explosion he is not in      the formal sense mentally ill."        That psychiatrist stated that intoxication played some part in the breakdown of the rehabilitation process, that such explosions were likely to reoccur whenever the applicant was granted freedom into the community with access to intoxicants, that he was pessimistic about the applicant's future and that he would be unwilling to take on the role of supervising psychiatrist in the future.        The RMO's report to the Tribunal concluded as follows:        "<the applicant> is not mentally ill and does not require to      remain in Rampton Hospital. Since June 1989 attempts to obtain      his conditional discharge have been foiled by his inability to      cooperate with the arrangements made and it is now difficult to      envisage any conditions of his discharge that would be acceptable      to <the applicant>."        A further social work report dated 22 January 1991 reiterated concerns in relation to the applicant's attitude to alcohol and drugs, and to his resistance to treatment for this.        On 9 April 1991 the Tribunal found that the applicant was not suffering from:        "mental illness, psychopathic disorder, severe mental impairment      or mental impairment or from any of these forms of disorder of      a nature or degree which makes it appropriate for him to be      detained in hospital for medical treatment."        However, the Tribunal was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment. The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support. Hence the applicant was again ordered to be conditionally discharged, such discharge to be deferred until alternative supervised accommodation could be found.        1993 Review        Prior to the applicant's final review he was assessed by the RMO, who indicated that the applicant had no mental illness symptoms and, provided the topic of rehabilitation was avoided, he was constantly pleasant, friendly and cooperative. This psychiatrist concluded as follows:        "There is no basis for <the applicant> continuing to be      classified as suffering from mental illness and with the benefit      of hindsight it appears unlikely that he ever experienced more      than a drug induced psychosis. ... He does not require to remain      in Rampton Hospital but it is difficult to envisage any      conditions of his discharge that would be acceptable to him and      his current application for an absolute discharge must now be      considered on its merits."        On 12 January 1993 the Mental Health Review Tribunal ordered the applicant's absolute discharge on the basis that the applicant:        "is not now suffering from any form of mental disorder and that      it is not appropriate for the patient to remain liable to be      recalled to hospital for further treatment."        It noted that the RMO had stated that the applicant had not suffered from mental illness since 1987, that the applicant was not receiving any treatment from the hospital in any sense of the word and that he was "often acting more like a member of staff than a patient" in his role on the ward.        The applicant was released from the hospital on 21 January 1993.   B. Relevant domestic law and practice        Mental disorder        Section 1(2) of the Mental Health Act 1983 ("the 1983 Act") defines "mental disorder" as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. A personality disorder would not, of itself, justify detention unless it came within the definition of psychopathic disorder.        Hospital order        Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence, to be admitted to and detained in a specified hospital ("a hospital order") .        The court can only make a hospital order if it is satisfied on the evidence of two registered medical practitioners that the offender is mentally disordered (see above) and that -        "1.    the disorder is of a nature or degree which makes it            appropriate for him to be detained in a hospital for            medical treatment, and in the case of psychopathic disorder            or mental impairment, that such treatment is likely to            alleviate or prevent a deterioration of his condition; and        2.     the court is of the opinion ... that the most suitable            method of disposing of the case is by [a hospital order]."        Restriction order        Section 41 of the 1983 Act empowers a court to make a restriction order (without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court (having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if set at large) that it is necessary for the protection of the public from serious harm to make the order.        Mental Health Review Tribunals        Under section 70 of the 1983 Act a person who is subject to a hospital order and restriction order ("a restricted patient"), and who is detained in hospital, can apply to a Mental Health Review Tribunal after six months' detention. After twelve months' detention such applications can be made annually.        Tribunals are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member.        Absolute discharge        Under section 73(1) and (2) of the 1983 Act, read with section 72(1), where an application is made to a Tribunal by a restricted patient or where his case is referred to the Tribunal by the Secretary of State, the Tribunal is required to direct the absolute discharge of the patient if satisfied -        1.     (a)    that the patient is not then suffering from mental            illness, psychopathic disorder, severe mental impairment or            mental impairment or from any of those forms of disorder of            a nature or degree which makes it appropriate for the            patient to be liable to be detained in a hospital for            medical treatment; or              (b)    that it is not necessary for the health or safety of            the patient or for the protection of other persons that he            should receive such treatment; and        2.     that it is not appropriate for the patient to remain liable            to be recalled to hospital for further treatment.        Pursuant to section 73(3), where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect.        Conditional discharge        Under section 73(2) where the Tribunal is satisfied as to either of the matters referred to in paragraph 1. above, but not as to the matter referred to in paragraph 2. above, it is required to direct the conditional discharge of the patient. By virtue of section 73(4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State and must comply with the conditions attached to his discharge. In contrast to the case of absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.        Under section 73(7) of the 1983 Act, a Tribunal can defer a direction for the conditional discharge of a patient until such arrangements, as appear to be necessary for the purpose, have been made to their satisfaction.   COMPLAINTS        The applicant complains that his continued detention from June 1989 to January 1993 constituted a violation of Article 5 paras. 1 and 4 of the Convention. He submits that the factor that determined the imposition of that form of indefinite detention, namely his mental illness, was no longer present during this period. Since the validity of his continued confinement depended on the persistence of the mental illness, he should have been released in 1989 when the Tribunal concluded that he no longer suffered from mental illness, particularly since he had been detained for a period exceeding the sentence of five years that could have been imposed on punitive grounds.        The applicant also claims that his detention constituted treatment contrary to Article 3 of the Convention in view of the overall length of his detention and his detention during a period when he was no longer suffering from mental illness.        In addition, the applicant submits, in the observations submitted on his behalf dated 4 May 1994, that the onerous pre-conditions fixed for his release constituted an unreasonable interference with his personal and family life contrary to Article 8 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 8 July 1993 and was registered on 24 August 1993.        On 1 December 1993 the Commission decided to communicate the application to the respondent Government and to request them to submit written observations on the admissibility and merits of the applicant's complaints under Article 5 para. 1 of the Convention.        The Government's observations were received on 25 April 1994 after one extension of the time limit fixed for this purpose. The observations submitted on behalf of the applicant were received on 18 July 1994 also after an extension in the time limit.        On 16 January 1995 the Commission decided to invite the parties to an oral hearing.        Further observations were submitted on behalf of the applicant on 4 May 1995.        At the hearing, which took place on 18 May 1995, the parties were represented by Mr. Martin Eaton, Agent, Foreign and Commonwealth Office, and Mr. James Eadie, Counsel, together with Mrs. Rosemary Davies and Mr. Nigel Shackleford as advisers. The applicant was represented by Mr. Edward Fitzgerald, Q.C., Mr. Oliver Thorrold, Counsel, and Mr. Andrew Bergman, Solicitor.   THE LAW   1.    The applicant claims, in the first place, that his detention constituted treatment contrary to Article 3 (Art. 3) of the Convention in view of the overall length of his detention and the fact that he was detained during a period when he was not suffering from mental illness.        Article 3 (Art. 3) of the Convention reads as follows:        "No one shall be subjected to torture or to inhuman or degrading      treatment or punishment."        The Commission recalls that ill-treatment must attain a certain level of severity if it is to fall within the scope of Article 3 (Art. 3). The assessment of this minimum is, in the nature of things, relative and it depends on all the circumstances of the case. Such circumstances include not only the duration of the treatment but also its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Such treatment causing, if not actual bodily injury, at least intense physical and mental suffering, falls into the category of inhuman treatment within the meaning of Article 3 (Art. 3) of the Convention (Eur. Court H.R., Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 65-67, paras. 162, 167; Tyrer judgment of 25 April 1978, Series A no. 26, pp. 14-15, paras. 29-30; Soering judgment of 7 July 1989, Series A no. 161, p. 39, para. 100). The Commission also recalls that Article 3 (Art. 3) of the Convention cannot be read as requiring even a life sentence to be reviewed with a view to its remission or termination (No. 11635/85, Dec. 3.3.86, D.R. 46 p. 231).        The Commission does not find that, in the circumstances of the present case, the applicant's detention amounted to treatment of such a level of severity as to constitute a breach of Article 3 (Art. 3) of the Convention. Accordingly, the Commission finds this complaint of the applicant manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant next complains under Article 5 paras. 1 (e) and 4 (Art. 5-1-e, 5-4) of the Convention in relation to his detention after June 1989.        Article 5 (Art. 5) of the Convention, as far as relevant, provides 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 of unsound mind,            ...        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."        The applicant submits, inter alia, that since the original basis for his detention (namely, mental illness) was recognised as being no longer present after June 1989, the imposition of onerous pre- conditions on his release and the indefinite deferral of such release meant that his detention after June 1989 was in violation of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention. Even if it could not be excluded that his mental illness might reoccur, this would not be sufficient to justify his continued detention. In addition, the applicant submits that since his detention after June 1989 was arbitrary, it was in violation of Article 5 para. 1 (e) (Art. 5-1-e). Furthermore, the applicant contends that the imposition of the pre- conditions for his release themselves constituted a further deprivation of liberty in that they required compulsory residence at a hostel subject to severe restrictions.        As regards Article 5 para. 4 (Art. 5-4) of the Convention, the applicant submits that the Tribunal did not have the power either to direct his immediate release to a specific hostel in such a way as to oblige that hostel to accept him or to compel the authorities to provide supervised accommodation within a specific period of time. This lack of power on the part of the Tribunal effectively meant that he was detained until January 1993.        The Government contend that the application is manifestly ill- founded. They submit, inter alia, that the successive Tribunals were attempting to release the applicant in an appropriate manner and not to detain him. It was the applicant's failure to co-operate with the conditional release procedure that led, at least in part, to his not being released until 1993.        As to the conditional release procedure itself, the Government further submit that the conditional release of the applicant was advised as necessary by the relevant psychiatric experts in order to provide for the applicant's rehabilitation into the community after a considerable period of time in a psychiatric institution. The Government argue that such a conditional release procedure and the deferral of that release pending (as in this case) suitable accommodation being found, fall within the margin of appreciation afforded to the State by the Convention. To interpret the Convention in any other way would lessen the availability and effectiveness of care in the community for those who have suffered from mental illness and result in an unacceptable risk to the public. In the circumstances of the present case, an appropriate balance had to be and was found between the interests of the applicant and those of the public. Furthermore, the Government do not agree that the conditions imposed on the applicant were such as to amount to a deprivation of liberty within the meaning of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.        The Commission finds, in the light of the parties' submissions, that this part of the application raises complex and serious issues under Article 5 paras. 1 (e) and 4 (Art. 5-1-e, 5-4) of the Convention which require determination on their merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring them inadmissible has been established.   3.    The applicant further complains of an unjustified interference with his personal and family life, ensured by Article 8 (Art. 8) of the Convention. He submits that the imposition of onerous pre-conditions on his release, which would have dictated how he lived his life after his release at a time when he was recognised as no longer suffering from mental illness, was in breach of Article 8 (Art. 8).        The Commission recalls that the running of the period of six months, set out in Article 26 (Art. 26) of the Convention, is not interrupted until the date when the complaint is first submitted to the Commission (cf. No. 10293/83, Dec. 12.12.85, D.R. 45 p. 41). The Commission notes that the applicant did not raise this complaint until the observations dated 4 May 1995 were submitted on his behalf, which is more than six months after the date of his release from Rampton Hospital in January 1993. It follows that this complaint has been submitted out of time and must be rejected in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission,        by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints about the lawfulness of his detention      after June 1989 and its judicial control;        unanimously,        DECLARES INADMISSIBLE the remainder of the application.        Secretary to the Commission        President of the Commission              (H.C. KRÜGER)                      (C.A. NØRGAARD)