Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25527/94

by A.R.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

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 27 September 1994

by A.R. against the United Kingdom and registered on 3 November 1994

under file No. 25527/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1948 and resident in

Doetinchem, the Netherlands. The applicant is represented before the

Commission by Arnoud Willems, a lawyer practising in Amsterdam.

The facts as submitted by the applicant may be summarised as

follows.

In October 1964, the applicant, then aged 15, was convicted of

manslaughter. The Court ordered his detention in Broadmoor Hospital,

being satisfied that he was suffering from a psychopathic disorder

which warranted detention in a hospital for medical reasons. The

hospital order was combined with a restriction order without limit of

time.

In 1967, the applicant was again convicted of manslaughter and

the Court repeated the same orders.

In 1978, in light of the applicant's steady progress, Dr. U., the

medical officer responsible for the applicant submitted a

recommendation for his conditional discharge, which was supported by

a psychologist. The Home Office rejected the recommendation.

In 1979, Dr. U. repeated his recommendation, which was supported

by the psychology department at Broadmoor and the nursing staff. The

Home Office delayed its decision until a Mental Health Tribunal had

considered the case.

In 1980, the Medical Health Review Tribunal found that the

applicant was still potentially a danger to the public and recommended

no discharge. The Home Office rejected the conditional discharge

recommendation of Dr. U. which was communicated to the applicant in

July 1981.

On 9 August 1981, the applicant escaped from Broadmoor and went

to Amsterdam where he lived for a year.

On 6 August 1982, he was arrested and subsequently convicted of

manslaughter. Without ordering his admission to hospital, the regional

Court of Amsterdam sentenced him to fifteen years' imprisonment.

Pursuant to the relevant rules, the applicant was due for release on

5 August 1992.

In June 1992, the Home Office requested the Dutch Government to

extradite the applicant for the purpose of the execution of the

hospital and restriction orders which were still in force.

The request was withdrawn however before the regional Court of

Assen could decide upon it, in order to avoid a protracted extradition

procedure and to make possible a speedy deportation of the applicant

to the United Kingdom by the Dutch authorities.

On 14 August 1992, the President of the Regional Court of The

Hague laid an injunction on the Dutch Government not to deport the

applicant, on the view that such deportation would be a disguised

extradition. The injunction was discharged by the Hague Court of Appeal

on 16 September 1993.

The applicant appealed to the Supreme Court which on

18 November 1994 upheld the decision of the Court of Appeal that the

expulsion of the applicant would not be unjust.

The applicant's solicitors wrote to the Home Office on

23 April 1992 referring to a significant body of evidence that the

applicant was no longer suffering from mental disorder or illness and

requesting that the Home Office refer the applicant's case of a Mental

Health Review Tribunal under section 71(1) of the Mental Health Act

1983. Their view was that such a review was necessary in order to

establish valid grounds for continuing to seek the applicant's

extradition. Alternatively, they suggested that the hospital order be

discharged by the Home Office.

In its reply of 14 July 1992, the Home Office took the view that

the applicant was an absconder from hospital, continued to be subject

to valid hospital orders and if he considered that he was no longer

suffering from a mental illness he could apply to a Mental Health

Review Tribunal on his return to the United Kingdom.

There was further correspondence between the applicant's

solicitors and the Home Office, but the latter refused to refer the

case to a Mental Health Review Tribunal prior to the applicant's return

to the United Kingdom. The Home Office had been sent evidence relating

to the applicant's mental health from psychiatrists who concluded that

the applicant was not suffering from mental disorder and was able to

live in the community without being a danger.

A report dated 30 June 1992 compiled by Dr. G., the director of

medical services at Broadmoor Hospital, who had examined the applicant

previous to his absconding, stated:

"A.R. still suffers from a vulnerability to stress which would

lead to a relapse of psychopathic disorder, that as such he

remains a potential danger to the public, that he is likely if

returned to a psychiatric hospital in England to prove

untreatable, that if returned to a psychiatric hospital in

England that this would need to be a Special Hospital and that

the reasons for this would be on grounds of public safety, but

that his own best chance of maximal recovery of his health is

likely to be that he be allowed to remain in Holland."

From 5 August 1992 until September 1993, the applicant lived

normally in the community, finding accommodation, living with a partner

and finding employment. He did not require to apply for social security

benefits and a Dutch probation officer decided that the applicant

required no assistance.

After September 1993, the applicant went into hiding to avoid

deportation to the United Kingdom.

The applicant's legal representatives made representations to the

Home Office in the United Kingdom submitting that there was evidence

that the applicant was no longer suffering from a mental disorder and

that the Home Secretary should exercise his power under section 71(1)

of the Mental Health Act 1983 to refer the applicant's case to a Mental

Health Review Tribunal. By letter dated 22 July 1994, the Home Office

replied:

"We have considered case in the light of your

representations. We remain of the view that must

return to lawful custody in Broadmoor Hospital and that following

his return a full assessment of his mental state must be made,

before any consideration of his liability to be detained in

hospital can take place. For this reason we are not prepared to

refer his case to a Mental Health Review Tribunal. Moreover it

is our view that there is no provision in the Mental Health Act

1983 for patients who are neither currently detained in hospital,

or conditionally discharged in the community, to have their case

so reviewed. would, however, on his return to

hospital, have an immediate right to apply to the Tribunal for

his detention to be reviewed..."

COMPLAINTS

The applicant submits that he should not be required to return

to detention before an independent judge has examined the legality of

the hospital and restriction orders of 1964 and 1967, having regard in

particular to all the psychiatric reports, which, with the exception

of that of Dr. G., are of the opinion that the applicant is no longer

a danger to the public. Since the hospital and restriction orders are

still in force, the applicant submits that his liberty is limited. The

continuation of the orders requires, pursuant to Article 5 para. 1 (e),

that there is objectively valid evidence of actually continuing mental

disorder, which is not available.

The applicant also invokes Article 6 and 13 of the Convention,

in that he is denied access to a tribunal when the continued existence

of the hospital and restriction orders affect his "civil rights" and

status.

THE LAW

1. The applicant complains under Article 5 para. 1 (e)

(Art. 5-1-e) that he should not be required to return to detention in

the United Kingdom before an independent judge has examined the

legality of the hospital and restriction orders pursuant to which his

liberty is limited.

Article 5 para. 1 (e) (Art. 5-1-e) provides:

"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 for the prevention of

the spreading of infectious diseases, of persons of unsound

mind, alcoholics or drug addicts or vagrants..."

The Commission recalls that the case-law of the Convention organs

establishes that for detention on grounds of mental illness to be

compatible with the above provision the existence of a medical disorder

must be established by objective medical expertise, the disorder must

be of such a kind or degree as to necessitate compulsory confinement

and the validity of continued confinement depends on the persistence

of such a disorder (see Winterwerp judgment of 24.10.79, Series A

no. 33 p. 18 para. 39).

In the present case the Commission notes that the applicant is

not in fact in detention pursuant to the hospital restriction orders,

following his escape from the United Kingdom to the Netherlands where

he is now in hiding to evade deportation. As regards the hospital and

restriction orders in question, the Commission finds no indication that

they were not issued in accordance with a procedure prescribed by law

or based on the proved existence of a mental disorder requiring such

confinement. The Commission recalls however that the applicant claims

that he no longer suffers from such a mental disorder and that he has

medical evidence to support this.

The Commission considers that the applicant may claim under

Article 5 para. 1 (e) (Art. 5-1-e) that the compatibility of any

further detention under the hospital orders which date from 1964 and

1967 must be justified by the continuance of a mental disorder

requiring such detention. However it is apparent that he would have the

right to receive such a review of detention by a Mental Health Tribunal

if he returned to the United Kingdom. It is not argued by the applicant

that the tribunal would not furnish the proper review of his current

medical status.

In these circumstances, to the extent that the applicant who is

living in the Netherlands, can claim to be a victim of deprivation of

liberty by virtue of hospital and restriction orders in existence in

the United Kingdom, the Commission finds that the refusal of the United

Kingdom authorities to grant a review of his case prior to his return

does not disclose a violation of Article 5 para. 1 (e) (Art. 5-1-e) of

the Convention.

2. The applicant complains also that his status as a patient subject

to the hospital and restriction orders is a matter concerning his civil

rights and that he is being denied access to the Mental Health Tribunal

for the purposes of determining his rights. He invokes Article 6

para. 1 (Art. 6-1) of the Convention which provides in its first

sentence:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and

impartial tribunal established by law...."

According to the Commission's case-law however, proceedings

regarding a person's detention in a psychiatric hospital do not as such

concern the determination of that person's "civil rights and

obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention unless it is found that the detention had indirect effects

on the detained persons right to administer his property or to carry

out legal transactions (see eg. Eur. Court H.R., Neumeister judgment

of 27 June 1968, Series A no. 8, p. 43, para. 23 and the Winterwerp

judgment of 24 October 1979, Series A no. 33, p. 28, para. 73 and the

Wassink case, Comm. Report 12.7.89, para. 64, Eur. Court H.R., Series

A no. 185, p. 27-28 para. 64).

The Commission finds no indication in the present case that the

applicant has suffered effects in his ability to administer his

property and considers that the proceedings in question would not

involve the determination of any of the applicant's civil rights and

obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the

Convention. It follows that this part of the application must be

rejected as incompatible ratione materiae with the provisions of the

Convention.

3. The applicant finally invokes Article 13 (Art. 13) of the

Convention as regards the refusal to allow his case to go before the

Mental Health Tribunal prior to his return to the United Kingdom.

Article 13 (Art. 13) of the Convention provides that :

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

The Commission notes that generally as regards complaints under

Article 5 (Art. 5), Article 5 para. 4 (Art. 5-4) is the lex specialis

in respect of access to a procedure seeking release. Since however the

applicant has absconded and is at liberty, Article 5 para. 4 (Art. 5-4)

is not applicable and the Commission has had regard to Article 13

(Art. 13) of the Convention. In this context, the Commission recalls

that Article 13 (Art. 13) does not require a remedy under domestic law

in respect of any alleged violation of the Convention. It only applies

if the individual can be said to have an "arguable claim" of a

violation of the Convention (Eur. Court H.R., Boyle and Rice judgment

of 27 April 1988, Series A no. 131, p.23, para. 52).

The Commission finds that the applicant cannot be said, in light

of its findings above under Article 5 para. 1 (e) (Art. 5-1-e) to have

an "arguable claim" of a violation of his Convention rights.

It follows that this complaint must be dismissed as manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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A.R. v. THE UNITED KINGDOM

A.R. v. THE UNITED KINGDOM