CEDH · PRESS;GENERAL;ENG — 26 février 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   EUROPEAN COURT OF HUMAN RIGHTS     100   26.2.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF MAGALHÃES PEREIRA v. PORTUGAL   In a judgment [1] delivered at Strasbourg on 26 February 2002 in the case of Magalhães Pereira v. Portugal (no. 44872/98), the European Court of Human Rights held unanimously that there had been a violation of Article 5 § 4 (right to liberty and security) of the European Convention on Human Rights and that it was unnecessary to examine whether there had been a violation of Article 5 § 1. (The judgment is in French only).   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 6,000   euros (EUR) for non-pecuniary damage and EUR 3,221 for legal costs and expenses.   1.     Principal facts   The applicant, Joaquim Magalhães Pereira, a Portuguese national, was born in 1940 and lives in Maia (Portugal). He was formerly a lawyer and is currently held at the Secure Psychiatric Clinic of Santa Cruz do Bispo at Matosinhos (Portugal).   He was arrested on 1 March 1996 on suspicion of fraud and held in custody pending trial. During the course of the proceedings, he was given a psychiatric examination. In a report of 22 July 1996 the expert concluded that he was suffering from residual schizophrenia and required long-term psychiatric treatment. On 11 November 1996 Oporto Criminal Court found the applicant not criminally responsible ( inimputável ) by reason of insanity and ruled that he was dangerous. Consequently, it made a hospital order for a maximum of eight years. On 4 December 1996 the applicant was transferred to the Secure Psychiatric Clinic of Santa Cruz do Bispo. The judge of the Oporto Criminal Court ordered that the mandatory periodic review of the hospital order should take place on 1 March 1998.   In February 1997 the judge responsible for the execution of sentences ( Tribunal de Execução das Penas ) at Oporto requested an initial evaluation of the applicant’s condition. In a letter of 19 March 1997, Dr M.S.C. informed the judge that the applicant was “clinically compensated”. On 2 July 1997 the applicant himself lodged an application for release on the basis of the doctor’s favourable opinion. The Institute for Social Rehabilitation lodged a report on the applicant’s social circumstances on 18 May 1998, in which it concluded that conditions were favourable for his release on licence. A medical examination took place on 28 April 1998. On 18 May 1998 the Institute of Forensic Medicine lodged a report concluding that the applicant remained a danger to the public.   On 2 June 1998 the applicant himself lodged a further application for release. On 1 July 1998 he was heard by the judge. As the lawyer assigned to represent the applicant by the court was not present, the judge appointed an official from the Santa Cruz do Bispo penal institution to represent him. By a decision of 20 January 2000 the judge responsible for the execution of sentences decided that the hospital order should continue. He relied on the Institute of Forensic Medicine’s report of 18 May 1998. The applicant appealed, but the judge responsible for the execution of sentences declined to examine his requests.   On 29 January 2001 the public prosecutor’s office lodged an application for the applicant’s release on the ground that he was no longer a danger. The judge dismissed the application and said he would review the situation on 20 January 2002, when the next periodic review was due. The public prosecutor’s office appealed against that decision to the Oporto Court of Appeal, but the appeal was dismissed on 20 June 2001.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 3 April 1997. The case was transferred to the Court on 1 November 1998. A hearing was held on 14   June 2001 and, on the same day, the Chamber declared the application partly admissible.   Judgment was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Antonio Pastor Ridruejo (Spanish), Lucius Caflisch [2] (Swiss), Jerzy Makarczyk (Polish), Ireneu Cabral Barreto (Portuguese), Nina Vajić (Croatian), Matti Pellonpää (Finnish), judges ,   and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [3]   Complaints   The applicant complained that his confinement was unlawful. He also complained that he had been given no legal assistance to allow him to appeal against the decision depriving him of his liberty. He complained, lastly, that the national authorities had taken too long to examine the lawfulness of his continued confinement. He relied on Article 5 §§ 1 and 4 of the Convention.   Decision of the Court   Article 5 § 4 (review of the lawfulness of the applicant’s confinement) – the Court noted that the applicant had applied for release on 2 July 1997 on the strength of a medical report. On 4 July 1997 the judge responsible for the execution of sentences marked the file “seen”. The Court observed, firstly, that that annotation could not be regarded as an examination of the application for release, still less as a decision concerning the grounds for confinement.   The first periodic mandatory review of the applicant’s confinement should have taken place on 1 March 1998, that is to say two years after the order was made for his detention pending trial. However, the first review of the grounds for confinement had ultimately only taken place on 20 January 2000: two years, six months and 18 days after his first application for release. The Court said that that period was excessive and found no special reason capable of justifying the delay for the purposes of Article 5 § 4.   The Court further noted that in deciding on 20 January 2000 to continue the hospital order the judge responsible for the execution of sentences had relied, inter alia , on a medical report prepared on 18 May 1998. It had therefore reached its decision on the basis of medical evidence that had been obtained a year and eight months previously and did not necessarily reflect the applicants’ condition at the time of the decision. The Court considered that an interval of that length between the drafting of the medical report and the subsequent decision could in itself conflict with the underlying principle of Article 5 of the Convention: the protection of the individual against arbitrariness when liberty was at stake. The Court said, lastly, that the judge responsible for the execution of sentences in Oporto had failed to comply with the statutory procedural rules. It therefore held that there had been a violation of Article 5 § 4.   Article 5 § 4 (legal assistance) – the Court noted that the applicant was suffering from a mental disorder that prevented him from conducting court proceedings satisfactorily, despite his legal training. The circumstances of the case therefore dictated the appointment of a lawyer to assist him in the proceedings concerning the periodic review of the lawfulness of his confinement. The judge responsible for the execution of sentences had assigned a lawyer at the outset of the proceedings but he had played no role in the proceedings. However, merely appointing counsel did not ensure that the accused would receive effective assistance. The fact that he did not was graphically illustrated at the hearing on 1 July 1998, when the judge appointed an official from the penal institution to act as the applicant’s assigned lawyer. Even though that appointment appeared valid under domestic legislation and the Constitutional Court’s case-law, it could not be regarded as adequate representation for the applicant. There had therefore been a violation of Article 5 § 4 on that ground also.   Article 5 § 1 – The Court held that it was unnecessary also to examine the applicant’s complaints under Article 5 § 1.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).         Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex   Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91 The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. 1.     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17—member Grand Chamber of the Court.   In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     Judge elected in respect of Liechtenstein. [3] .     This summary by the Registry does not bind the Court.