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:

     " 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 ."

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 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 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 1989 considerable efforts were made by the

authorities to locate an appropriate hostel which would accept the

applicant and numerous difficulties had been encountered by them in

this respect as evidenced by the social work reports dated 6 October

1989 and 4 April 1990. I also note that prior to the Tribunal review

in May 1990 it had been established that Ashcroft Hostel would be

prepared in principle to accept the applicant and it is understandable

that the Tribunal in May 1990 would have wished to pursue this option.

     Nevertheless, Ashcroft Hostel had already expressed some

reservations and, in addition, had imposed what amounted to a further

condition on the applicant's already conditional discharge namely, the

successful completion of an eight week trial period in another but less

secure hospital. Therefore a decision by the Tribunal to pursue that

option, and again to defer the applicant's discharge, could have

necessarily involved a further delay before the applicant would be

conditionally discharged to Ashcroft Hostel if at all. Moreover, at

that stage almost a year had already passed since the applicant had

been diagnosed as having recovered from mental illness and the Tribunal

in May 1990 accepted that this diagnosis had not changed.

     It is true that the applicant's attitude, which was squarely

opposed to anything other than his absolute discharge appears to have

affected, at least to some extent, his acceptance by hostels. However,

it is equally true that some of the fears expressed by hostels (the

nature of the applicant's past convictions) related to matters which

were then beyond the applicant's control. In addition, the Commission

considers that such comportment on the part of the applicant cannot

constitute a ground for his continued detention.

     Accordingly, I conclude that the Tribunal's decision in May 1990

to defer again the applicant's discharge pending the realisation of the

relevant condition of hostel residence failed to comply with the

requirements of Article 5 para. 1(e) of the Convention. Therefore, in

my view it was only the applicant's detention after May 1990 which

constituted a violation of Article 5 para. 1 of the Convention.

     On the other hand, I cannot agree with the majority on the issue

raised under Article 5 para. 4 of the Convention. The conclusion, that

no separate issue arises as regards the procedural guarantees in

paragraph 4 and the substantive rights under paragraph 1 of Article 5,

renders the link between these two paragraphs too close.

     In fact, the right to take proceedings before a court with a view

to having the lawfulness of one's detention ascertained arises

independently from the question of whether that detention is lawful or

not. In my view, the scope of Article 5 para. 4 is perceived too

narrowly if it is reduced to a protection against an individual's

unlawful detention. The possibility of having the legality of one's

deprivation of liberty supervised by a court also serves to give the

detainee a feeling of security in that he or she has the protection of

an independent and impartial body before which he or she is entitled

to fair proceedings as regards detention.

     In the present case, not only was the applicant unlawfully

detained but he was also denied the protection of these procedural

guarantees in Article 5 para. 4 of the Convention. Accordingly, it is

my opinion that this does indeed raise a separate issue. This approach

is also in line with the case-law of the Court (Eur. Court H.R.,

Bouamar judgment of 29 February 1988, Series A no. 129, p.22,

para. 55).

                                                (Or. français)

             OPINION DISSIDENTE DE M. F. MARTINEZ

     Malheureusement, je suis en désaccord avec mes collègues de la

Commission. A leur avis, le requérant a été victime d'une violation de

l'article 5 par. 1 de la Convention, avis que je ne partage pas.

     Je peux accepter le rapport de la Commission jusqu'au par. 67

inclus. Ce sont les paragraphes 68 et suivants qui me font diverger.

     La Commission a conclu, aux paragraphes 71 et 72 que le fait que

le requérant a continué à être maintenu à l'Hôpital après le

15 juin 1989 constituait une violation de l'article 5 par. 1 de la

Convention. C'est-à-dire, pour ne pas violer la Convention, il aurait

dû être mis en liberté ce jour-là.

     Mais à ladite date, le tribunal décida que, bien que le requérant

ne souffrît pas d'une maladie mentale, il n'était cependant pas en état

de vivre en pleine liberté, car il aurait représenté un danger pour la

société et lui-même.

     Dans ces conditions, je vois une certaine contradiction entre les

conclusions de la majorité de la Commission et le raisonnement qu'elle

développe aux paragraphes 56 à 65 de son rapport.

     Pour moi, il est clair que si le requérant n'est pas atteint

d'une maladie mentale au sens pathologique du terme, mais n'est pas

encore adapté à la vie sociale et qu'il représente un risque pour la

société et lui-même, il ne doit pas être laissé en liberté.

     Quels sont donc les motifs sur lesquels s'appuie la Commission

pour conclure que le requérant aurait dû être mis en liberté dès le

15 juin 1989?

     D'après la Commission, le tribunal aurait dû fixer un délai pour

trouver une solution d'hébergement pour le requérant. Mais, s'il

n'était pas possible d'en trouver une?  Aurait-il dû être laissé tout

à fait libre avec le risque que cela comportait à l'époque?

     On ne saurait exiger de l'Etat une chose pareille. Dans les

circonstances de l'espèce, l'Etat était obligé de sauvegarder l'intérêt

public et celui-ci s'avérait en l'espèce contraire à ce que le

requérant soit mis en liberté au détriment de la sécurité pour lui-même

et pour les autres.

     D'autre part, il faut souligner que si un hébergement adéquat n'a

pu être trouvé, c'est à cause de l'attitude et de la conduite du

requérant, ce qui tend à démontrer que celui-ci n'était pas encore apte

à retrouver sa pleine liberté.