CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 mai 1997

.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. 27560/95                       by R.S.C.                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 28 May 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 30 May 1995 by R.S.C. against the United Kingdom and registered on 9 June 1995 under file No. 27560/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the respondent Government's letter of 16 May 1997 informing the      Commission that agreement had been reached between the parties;        Having deliberated;        Decides as follows: THE FACTS        The applicant is a British citizen born in 1956.   He is detained in Broadmoor Hospital and is represented before the Commission by Mr. S. Reynolds, solicitor, of Messrs. Brutton & Co., Fareham, Hampshire.        The facts of the application, as they have been submitted by the applicant, may be summarised as follows.        The applicant was convicted of false imprisonment, indecent assault, assault occasioning actual bodily harm and arson in August 1988.   Hospital and restriction orders were made under Sections 37 and 41 of the Mental Health Act 1983.        The applicant's deferred conditional discharge was recommended by the Mental Health Review Tribunal on 25 February 1994, and he left hospital on 1 November 1994.   He was recalled by a Home Office warrant on 16 November 1994, after an alleged attack on a young woman.        On 22 November 1994 the Home Secretary referred the case to the Mental Health Review Tribunal under Section 75 (1) (a) of the Mental Health Act 1983.        An application for legal aid to apply for judicial review of the Home Secretary's decision to recall the applicant was refused on 1 May 1995 on the ground that the applicant had not shown sufficient grounds for taking the proceedings.   In any event, the time limit for an application for judicial review had passed, and there was no reasonable prospect of obtaining leave to apply out of time.        On 20 September 1995 the Mental Health Review Tribunal adjourned its consideration of the case for a supplementary report from one of the doctors, so that the applicant would have a greater chance of success when eventually discharged.   In addition, the applicant's counsel had asked for an adjournment as she only received certain papers from a doctor on 9 September.        The case was again adjourned on 21 February 1996 for two doctors to make further reports and to be able to attend the hearing, which was fixed for 25 March 1996.        At the hearing on 25 March 1996 the Mental Health Review Tribunal found that the applicant had suffered from and was continuing to suffer from a psychopathic disorder, and that he continued to need treatment for his condition in a secure unit, both for his own health and safety and for the protection of others.   COMPLAINTS        The applicant alleges a violation of Article 5 para. 4 of the Convention in two respects.   He claims, first, that the allegations brought against him were accusations of criminal conduct which should have been put before a court, and, secondly, that the review by the Mental Health Tribunal did not satisfy the requirements of Article 5 para. 4 because it failed to consider the reasons for his recall, and because it did not decide "speedily".        The applicant claims that he has no right to compensation in respect of the alleged breaches of Article 5 para. 4.        The applicant also alleges violation of Articles 8 and 13 of the Convention in that his recall was disproportionate to the established facts of the matter, and that he has no effective remedy in connection with it.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 30 May 1995 and registered on 9 June 1995.        On 4 September 1996 the Commission (First Chamber) decided to communicate the application to the respondent Government.        On 21 January 1997, at the Government's request, the Commission decided to adjourn further examination of the case pending the outcome of negotiations between the parties.        By letter of 16 May 1997 the Government informed the Commission that an agreement had been reached between the Government and the applicant.   In the Memorandum of Agreement signed by the parties, the Government agreed to pay to the applicant the sum of £2,000.00 by way of compensation together with the sum of £2800.86 by way of costs.   The applicant agreed to withdraw the application.   The Government also undertook - after consultation and subject to Parliamentary approval - (i) to amend the Mental Health Review Tribunal Rules 1983 so that when a conditionally discharged patient is recalled to hospital there must be a Tribunal hearing within two months from the date on which the case is referred to the Tribunal (which must be within a month of recall), and (ii) to include in a revised version of the Mental Health Code of Practice (issued under Section 118 of the Mental Health Act 1983) new guidance about the responsibility of Hospital Managers to ensure that reports to Tribunals are prepared and submitted in accordance with the time limits set down in the Tribunal Rules, compliance with the matters to be monitored through the normal mechanisms for performance monitoring in the National Health Service.   The agreement also contained ancillary declarations.   REASONS FOR THE DECISION        Article 30 para. 1 of the Convention provides as follows:        "The Commission may at any stage of the proceedings decide to      strike a petition out of its list of cases where the      circumstances lead to the conclusion that:        (a)    the applicant does not intend to pursue his petition, or        (b)    the matter has been resolved ...        However, the Commission shall continue the examination of a      petition if respect for human rights as defined in the Convention      so requires."        The Commission has had regard to the terms of the agreement reached between the applicant and the respondent Government, and finds that the applicant does not intend to pursue his petition, within the meaning of Article 30 para. 1 (a) of the Convention, and that the matter has been resolved, within the meaning of Article 30 para. 1 (b) of the Convention.        Having regard to the terms of the agreement between the applicant and the respondent Government, the Commission also finds no reasons within the meaning of the final sentence of Article 30 para. 1 which could require the Commission to continue the examination of the application.        For these reasons, the Commission, unanimously,          DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber