CEDH · CASELAW;REPORTS;ENG — 25 juin 1996

.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 }                  EUROPEAN COMMISSION OF HUMAN RIGHTS                        Application No. 22520/93                            Stanley Johnson                                   against                           the United Kingdom                          REPORT OF THE COMMISSION                      (adopted on 25 June 1996)                            TABLE OF CONTENTS                                                           Page   I.    INTRODUCTION      (paras. 1-16). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-11) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 12-16). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 17-47) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 17-36). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (paras. 37-47). . . . . . . . . . . . . . . . . . .7     III. OPINION OF THE COMMISSION      (paras. 48-79) . . . . . . . . . . . . . . . . . . . . 10        A.    Complaints declared admissible           (para. 48). . . . . . . . . . . . . . . . . . . . 10        B.    Points at issue           (para. 49). . . . . . . . . . . . . . . . . . . . 10        C.    As regards Article 5 para. 1(e) of the Convention           (paras. 50-73). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 74). . . . . . . . . . . . . . . . . . . . 14        D.    As regards Article 5 para. 4 of the Convention           (paras. 75-76). . . . . . . . . . . . . . . . . . 14             CONCLUSION           (para. 77). . . . . . . . . . . . . . . . . . . . 15        E.    Recapitulation           (paras. 78-79). . . . . . . . . . . . . . . . . . 15     SEPARATE, PARTLY DISSENTING OPINION OF MR. S. TRECHSEL   . . 16     DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . 18     APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 19   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.    The application   2.    The applicant is a British citizen, born in 1947 and resident in Leicester. He was represented before the Commission by Mr. A.K. Bergman, a solicitor practising in Leicester.   3.    The application is directed against the United Kingdom. The respondent Government were represented by Mr. Martin Eaton, Agent, Foreign and Commonwealth Office.   4.    The case concerns the applicant's detention in a mental institution after successive Mental Health Review Tribunals found him mentally sound. The applicant mainly invokes Article 5 para. 1(e) of the Convention.     B.    The proceedings   5.    The application was introduced on 8 July 1993 and was registered on 24 August 1993.   6.    On 1 December 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 5 para. 1 of the Convention.   7.    The Government's observations were submitted on 25 April 1994 after one extension of the time-limit fixed for this purpose. The applicant replied on 18 July 1994 after one extension of the time- limit. On 17 May 1994 the Commission granted the applicant legal aid for the representation of his case.   8.    On 16 January 1995 the Commission (Plenary) decided to hold a hearing of the parties. The applicant submitted further written observations on 5 May 1995. The hearing was held on 18 May 1995. The Government were represented by Mr. Martin Eaton, Agent, Foreign and Commonwealth Office, and Mr. James Eadie, Counsel, together with Ms. 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.   9.    On 18 May 1995 the Commission declared admissible the applicant's complaints about the lawfulness of his detention after June 1989 and its judicial control. It declared inadmissible the remainder of the application.   10.   The text of the Commission's decision on admissibility was sent to the parties on 2 June 1995 and they were invited to submit such further information or observations on the merits as they wished. No such further information or observations were received.   11.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.     C.    The present Report   12.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.   S. TRECHSEL, President                H. DANELIUS                E. BUSUTTIL                G. JÖRUNDSSON                A. WEITZEL                H.G. SCHERMERS                F. MARTINEZ           Mrs. J. LIDDY           MM.   L. LOUCAIDES                B. MARXER                M.A. NOWICKI                B. CONFORTI                N. BRATZA                J. MUCHA                A. PERENIC                C. BÎRSAN   13.   The text of this Report was adopted on 25 June 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   14.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   15.   The Commission's decision on the admissibility of the application is annexed hereto.   16.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   17.   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, of an assault on a girl in 1977 and of two further assaults in 1981.   18.   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.   19.   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 successive Mental Health Review Tribunals ("the Tribunal") and the background to these reviews, together with the psychiatric and social work evidence before those Tribunals, is outlined below.        1986 Review   20.   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   21.   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   22.   Three reports were before the Tribunal. In the first place, the RMO reported 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, Dr. C, was of the view that the applicant was "a schizoid personality with a history of explosive anti-social behaviour induced by intoxication" and that, while the applicant had some insight into his problems, he would benefit from a stay in a hostel for people with drink problems as a half-way house prior to full discharge. Dr. C indicated that he had asked the staff of a hostel if they would arrange to visit the applicant.   23.   Thirdly, a further psychiatric report of Dr. E dated 5 May 1989 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. It stated 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 report concluded by noting that Dr. C had indicated that he was willing to provide a hostel place for the applicant.   24.    The Tribunal hearing took place on 15 June 1989 and the Tribunal 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 conditional discharge, the conditions being that the applicant attend a supervised hostel and be supervised 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   25.   A social work report dated 6 October 1989 indicated that a hostel place had not yet been found for the applicant and that when the applicant visited hostels he had appeared intent on portraying himself unfavourably, thus failing to make a good impression on the hostels.   26.   A further social work report dated 4 April 1990 described the search for hostels. It was noted that progress on finding a hostel had been disappointing despite considerable efforts having been made. The applicant had visited two hostels, one of which rejected him almost immediately. The second hostel, Ashcroft Hostel, remained interested but with some reservations. A third hostel rejected the applicant without seeing him. The Housing Associations running hostels in conjunction with the Leicestershire Probation Service also felt unable to offer the applicant any hope for some time, given staff composition. Common concerns were expressed by all the hostels in question. Those concerns related to the applicant's attitude to his drinking problem, his history of assaults on women which had to be taken into consideration since all of the hostels had female members of staff and the applicant's lack of appreciation of the life style needed to achieve a successful rehabilitation.   27.   That report also went on to point out that almost all possibilities as regards hostels had been exhausted and that Ashcroft Hostel was "ultimately the only viable option", which was subject to the applicant accepting an eight week trial period in an open ward in another hospital. The applicant had stated that he would consider the proposition of the trial period but that he still wished to go ahead with his forthcoming review by the Tribunal because he hoped for an absolute discharge. In concluding, the social work report indicated that, if the applicant was left to his own devices and discharged without support, he would get back into trouble quickly.   28.   On 9 May 1990 the Tribunal, having heard the applicant who presented his own application, noted that the necessary arrangements for supervised accommodation had not been easy to make "probably because the patient is himself not easy to please". The Tribunal accepted the reasoning of the 1989 Tribunal and noted that the applicant would infinitely prefer an 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". Accordingly, the Tribunal directed the applicant's conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation.        1991 Review   29.   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 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.   30.   In December 1990 the applicant was reported, by his then supervising psychiatrist, Dr. C., as having terrorised staff at the hospital which he attended during his trial leave, as having assaulted a fellow patient and as having rejected any attempt at rehabilitation. It was also indicated that the applicant was suffering from "an explosive disorder of personality" which meant that when he was not in the middle of an explosion he was "not in the formal sense mentally ill". In addition, it was noted that intoxication played some part in the breakdown of the rehabilitation process and that such explosions were likely to reoccur whenever the applicant was discharged into the community with access to intoxicants. Dr. C. concluded by stating 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.   31.   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>."   32.   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.   33.   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 those forms of disorder of a nature or degree which made 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   34.   Prior to the applicant's final review he was assessed by the RMO, who indicated that the applicant had no mental illness symptoms and that, provided the topic of rehabilitation was avoided, the applicant was constantly pleasant, friendly and cooperative. This psychiatrist, Dr. W, 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."   35.   On 12 January 1993 the 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, Dr. W, 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.   36.   The applicant was released from Rampton Hospital on 21 January 1993 and, since then, he has not been convicted of any other crimes or relapsed into mental illness.   B.    Relevant domestic law and practice        Mental disorder   37.   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   38.   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").   39.   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   40.   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.        The Mental Health Review Tribunal ("the Tribunal")   41.   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 the Tribunal after six months' detention for a review of his detention. After twelve months' detention such applications can be made annually. The Secretary of State may at any time refer the case of a restricted patient to the Tribunal (section 71 of the 1983 Act). 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   42.   Under section 73(1) and (2) of the 1983 Act, read with section 72(1), where an application is made to the 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 -        (a)   (i) 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             (ii) 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; (section 73(1) of the 1983           Act) and        (b)   that it is not appropriate for the patient to remain liable           to be recalled to hospital for further treatment (section           73(2) of the 1983 Act).   43.   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   44.   Under section 73(2) of the 1983 Act, where the Tribunal is satisfied as to either of the matters referred to at (a) in paragraph 42 above but not as to the matter referred at (b) in paragraph 42 above, it is required to direct the conditional discharge of the patient - this power of conditional discharge being designed for the support of the patient in the community and for the protection of the public (R v. Merseyside Mental Health Tribunal ex parte K (1990).   45.   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 with absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order.   46.   Under section 73(7) of the 1983 Act, a Tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements, as appear to be necessary for the purpose of discharge, have been made to their satisfaction. However, in the case of restricted patients, whose discharge has been accordingly deferred, the Tribunal does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to re-convene the proceedings failing such compliance with the time fixed. However, once the case comes back before the Tribunal on an application by the patient (which at the earliest will be the following year) or on a reference from the Secretary of State (which may be at any time) the Tribunal must consider the case afresh.   47.   The Secretary of State may also order a patient's conditional or absolute discharge (section 42 of the 1983 Act).   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   48.   The Commission has declared admissible the applicant's complaints about the lawfulness and judicial control of his detention after June 1989.     B.    Points at issue   49.   Accordingly, the issues to be determined by the Commission are:   -     whether there has been a violation of Article 5 para. 1      (Art. 5-1) of the Convention in relation to the applicant's      detention after June 1989, and   -     whether there has been a violation of Article 5 para. 4      (Art. 5-4) of the Convention in relation to the applicant's      detention after June 1989.     C.    As regards Article 5 para. 1 (Art. 5-1) of the Convention   50.   Article 5 para. 1 (Art. 5-1) of the Convention, insofar 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,           ..."   1.    As to applicability   51.   The Commission notes that there was a "conviction" within the meaning of Article 5 para. 1(a) (Art. 5-1-a) of the Convention but considers that, in view of the fact that the applicant was not dealt with by way of punishment but rather by way of committal to a psychiatric institution for treatment for a mental illness pursuant to the Mental Health Act 1983 ("the 1983 Act"), Article 5 para. 1(e) (Art. 5-1-e) is applicable (Eur. Court H.R., X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 17-18, paras. 38-39).     2.    As to the merits   52.   The applicant's main argument is that the basis for his original detention was his mental disorder and that the Mental Health Review Tribunal ("the Tribunal") accepted in June 1989 that he was no longer suffering from any such disorder. Accordingly, he should have been discharged immediately and unconditionally. Instead his discharge was made conditional on psychiatric and social worker supervision and on the applicant spending a period of rehabilitation in a hostel. His discharge was indefinitely deferred pending the location of an appropriate hostel. His detention after June 1989 was, therefore, in violation of Article 5 para. 1(e) (Art. 5-1-e) of the Convention. The fact that the Tribunals of June 1989 and thereafter were of the opinion that a recurrence of the episode of mental illness "could not be excluded" did not provide any lawful basis in Convention terms for the applicant's further detention - the diagnosis that the applicant no longer suffered from mental illness remained constant after June 1989.     53.   The applicant also submits that his detention after June 1989 was arbitrary as evidenced by the fact, inter alia, that there was no real change in the position between June 1989 and January 1993 - it was simply the passage of time which prompted his discharge. The imposition of pre-conditions on his discharge constituted, of itself, a further deprivation of liberty in that the conditions required compulsory residence at a hostel subject to severe restrictions. For those additional reasons his detention after June 1989 was in violation of Article 5 para. 1 (Art. 5-1).   54.   As to the conditional release procedure, the Government submit that the conditional release of the applicant was recommended by the relevant psychiatric experts as being necessary 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 in the present case pending suitable accommodation being found, was a sensible and necessary measure falling 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. The Government add, 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.   55.   Finally, the Government do not accept that the applicant's detention after June 1989 was arbitrary and 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 (Art. 5-1) of the Convention.   56.   The Commission recalls that detention under Article 5 para. 1(e) (Art. 5-1-e) of the Convention must, in the first place, be "lawful". This term presupposes conformity with the procedural and substantive rules of domestic law. However, the detention must also be in conformity with the object and purpose of Article 5 para. 1 (Art. 5-1) of the Convention which is to ensure that no one is deprived of his or her liberty in an arbitrary fashion. In this latter respect, the Commission recalls that, except in emergency cases, an individual should not be deprived of his or her liberty under Article 5 para. 1(e) (Art. 5-1-e) of the Convention unless three criteria have been fulfilled. In the first place, the individual must have been shown to be of unsound mind on the basis of objective medical expertise. Secondly, the mental disorder must be of a kind warranting compulsory confinement. Thirdly, the validity of the continued confinement depends upon the persistence of such a disorder (Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, pp. 17-18, para. 39).   57.   As to the basis in domestic law for the applicant's detention after June 1989, the Commission notes the powers of the Tribunal to order conditional discharge and to defer that discharge (section 73(2) and (7) of the 1983 Act). It considers that the applicant's detention after June 1989 was in accordance with domestic law.   58.   As to the three criteria laid down in the Court's Winterwerp judgment which are designed to avoid arbitrariness and to ensure the "lawfulness" of the detention of persons of unsound mind, the Commission notes that, since the applicant's original committal to the psychiatric institution is not in issue, the first two criteria do not arise for consideration in this case. The Commission would add that it is not of the view that Dr. W's comments in 1993, to the effect that it was unlikely that the applicant had ever suffered from anything other than a drug-induced psychosis, raise issues as to the compliance of the applicant's original detention with Article 5 para. 1(e) (Art. 5-1-e) of the Convention.   59.   As to the third of these criteria, relating to the "persistence" of the mental disorder, the Commission notes the following. On the one hand, it is clear that the Tribunal accepted in June 1989 that, not only did the applicant not suffer from mental illness warranting confinement, but that he did not suffer from mental illness at all. However, the Tribunal ordered the conditional discharge of the applicant and, most importantly, deferred that discharge pending the availability of suitable supervised accommodation.   60.   On the other hand, the Commission notes the constructive and practical nature of the Tribunal's reasons for deferring the applicant's detention namely, its concern to ensure, in the interests of the applicant himself and of the public, that the applicant successfully re-entered the community and that the risk of his re- offending was minimised.   61.   The Commission has therefore considered whether this criterion, relating to the persistence of the mental disorder, means that once it is established that the individual no longer suffers from a mental disorder the individual must be released immediately and unconditionally, as the applicant submits, or whether it contains an element of flexibility allowing the relevant authority a measure of discretion as to the time at which, and the conditions under which, a psychiatric detainee is discharged.   62.   In this respect, the Commission notes that the Court in the Winterwerp judgment itself referred to "emergency" situations as constituting an exception to the criteria noted above when a person is initially detained (Eur. Court H.R., Winterwerp judgment, loc. cit., p. 18, para. 39). In such situations, the interests of the community and of the person so detained allow a certain measure of flexibility.   63.   In addition, the Commission recalls that the Court has held, in a case where psychiatric and other evidence was presented to the relevant authorities to the effect that an individual no longer suffered from a mental disorder, that a certain margin of appreciation is accorded to the authorities in deciding whether the individual should continue to be detained as a person of unsound mind (Eur. Court H.R., Luberti judgment of 23 February 1984, Series A no. 75, p. 12, para. 27). The Court observed that:        "The termination of the confinement of an individual who has      previously been found by a court to be of unsound mind and to      present a danger to society is a matter that concerns, as well      as that individual, the community in which he will live if      released. ... Accordingly, the <relevant authority> had to      proceed with caution and needed some time to consider the case."      (p. 14, para. 29)   64.   Subsequently, and again in the context of a complaint about the delay of the relevant authorities in reaching a decision to discharge a psychiatric detainee, the Commission found that, given the State's margin of appreciation in such matters, the national authorities had to proceed with caution and needed time to consider cases of individuals who had been found by the domestic courts to be of unsound mind and to present a danger to the public (No. 10213/82, Dec. 9.10.85, D.R. 47 p. 36).   65.   The Commission considers that a similar margin of appreciation applies as regards the lawfulness of detention of a patient under Article 5 para. 1 (Art. 5-1) of the Convention, even when it has been accepted by the relevant authorities that the mental disorder no longer exists and when the authorities are considering the appropriate method of discharging an individual, this determination likewise involving the balancing of the interests of that individual and of the public.   66.   In the present case, in light of the nature of the applicant's earlier convictions and the considerable evidence before the Tribunal in May 1989 as to the necessity for his rehabilitation before his discharge into society, the Commission considers that the Tribunal in June 1989 was entitled to proceed with caution and with due regard to the interests of the community. It could, in principle, have been justified in deciding that a phased discharge was called for even if this entailed some period of deferment of the applicant's release.   67.   However, such a release cannot be indefinitely deferred. The Commission recalls the general principle that the exceptions to the applicant's right to liberty set out in Article 5 para. 1 (Art. 5-1) of the Convention call for a narrow interpretation (cf. Eur. Court H.R. Winterwerp judgment, loc. cit., p. 16, para. 37). The margin of appreciation afforded to the national authorities, allowing a deferral of the discharge of a person who has been found to have recovered from mental illness, must be correspondingly limited and must be subject to strict procedural safeguards to ensure the discharge of such a person at the earliest opportunity.   68.   The Commission finds that the necessary safeguards were lacking in the present case. The Commission notes that in its decision of June 1989 the Tribunal deferred the conditional discharge of the applicant pending the finding of suitable supervised accommodation. At the time of the Tribunal's decision no detailed examination of the availability of such accommodation appears to have been carried out. Nor was there any certainty as to whether, and if so when, a suitable hostel might be found. The best evidence as to the availability of hostel accommodation at that stage was that of Dr. C. who, in his report to the Tribunal, indicated that he had asked the staff at a particular hostel to visit the applicant.   69.   Moreover, the Commission notes that, in deferring the discharge of the applicant on these terms, the Tribunal had no powers to ensure that the conditional discharge of the applicant was not unduly delayed. In particular, the Tribunal was not empowered to direct that, in the event that no suitable accommodation should become available within a fixed period, the applicant should be discharged or that the matter should be referred back to the Tribunal for further consideration or directions. In the absence of such powers, the practical effect of the Tribunal's decision was that, if suitable accommodation could not for whatever reason be found in the meantime, the applicant would remain in detention in Rampton Hospital for at least a further twelve months, being the earliest date on which the applicant could require a further review by the Tribunal. It is true that, at all times, the Secretary of State had powers to order the discharge (conditionally or absolutely) of the applicant and to refer the matter back to the Tribunal. However, such powers are discretionary and were not at any stage exercised in the applicant's case.   70.   In the event, since no suitable accommodation could be found despite the efforts of the authorities, the applicant continued to be detained until the next review in 1990 when his conditional discharge was again deferred on the same terms, as it was again in the 1991 review. In consequence, apart from the short period of trial leave, the applicant remained in detention at Rampton Hospital for a period of over three and a half years after he had been found to be no longer suffering from any mental illness.   71.   Accordingly, the Commission finds that the deferment of the applicant's discharge on 15 June 1989 and thereafter failed to comply with the requirements of Article 5 para. 1(e) (Art. 5-1-e) of the Convention.   72.   The Commission therefore concludes that, in the circumstances described above, the applicant's continued detention after June 1989 constituted a violation of Article 5 para. 1 (Art. 5-1) of the Convention.   73.   In light of the above conclusion, the Commission does not consider it necessary to examine the further issues raised by the parties under Article 5 para. 1 (Art. 5-1) of the Convention, including the question whether the applicant's residence in a supervised hostel would also have amounted to a deprivation of liberty within the meaning of that Article.        CONCLUSION   74.   The Commission concludes, by 15 votes to 1, that in the present case there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention.     D.    As regards Article 5 para. 4 (Art. 5-4) of the Convention   75.   As regards Article 5 para. 4 (Art. 5-4) of the Convention, the applicant submits, inter alia, 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 meant that the Tribunal's supervision of the lawfulness of his continuing detention was inadequate.   76.   In light of the conclusion in relation to Article 5 para. 1 (Art. 5-1) of the Convention noted above, the Commission does not consider that this complaint of the applicant gives rise to any separate issue.        CONCLUSION   77.   The Commission concludes, by 15 votes to 1, that the applicant's complaint under Article 5 para. 4 (Art. 5-4) of the Convention does not give rise to any separate issue.     E.    Recapitulation   78.   The Commission concludes, by 15 votes to 1, that in the present case there has been a violation of Article 5 para. 1 (Art. 5-1) of the Convention (para. 74).   79.   The Commission concludes, by 15 votes to 1, that the applicant's complaint under Article 5 para. 4 (Art. 5-4) of the Convention does not give rise to any separate issue (para. 77).   Secretary to the Commission                 President of the Commission            (H.C. KRÜGER)                             (S. TRECHSEL)                                                      (Or. English)         SEPARATE, PARTLY DISSENTING OPINION OF MR. S. TRECHSEL          I am in agreement with my colleagues that there has been, in the present case, a violation of Article 5 para. 1. However, in my view the applicant's detention was not yet unlawful after 15 June 1989. Considering the nature of the applicant's earlier convictions and the considerable evidence before the Tribunal in May 1989 as to the necessity for his rehabilitation before his discharge into society, I find that the Tribunal in June 1989 was entitled to proceed with caution and with due regard to the interests of the community. It was justified in deciding that a phased discharge was called for even though this entailed some period of deferment of the applicant's release.        However, such a release cannot be indefinitely deferred. The exceptions to the applicant's right to liberty set out in Article 5 para. 1 of the Convention call for a narrow interpretation (cf. Eur. Court H.R. Winterwerp judgment of 24 October 1979, Series A no. 33, p. 16, para. 37). The margin of appreciation afforded to the national authorities, allowing a deferral of the discharge of a person who has been found to have recovered from mental illness, must be correspondingly limited in order to ensure the discharge of such a person at the earliest opportunity.        Subsequent to June 1