Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25649/94

by E.A.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 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

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 2 September 1994

by E.A. against the United Kingdom and registered on 14 November 1994

under file No. 25649/94;

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 facts as submitted by the applicant may be summarised as

follows.

The applicant is a British national, born in 1964 and she is

currently resident in London. She is represented before the Commission

by Ms. N. Mackintosh, a solicitor practising in London.

On 9 January 1992 the applicant was admitted as a voluntary

patient to a psychiatric institution where she was diagnosed as being,

inter alia, depressed and suicidal.

On 2 October 1992 the applicant was committed as an involuntary

patient (for a maximum period of six months) to a secure unit in

another psychiatric institution under section 3 of the Mental Health

Act 1983 ("the 1983 Act") on grounds of mental illness. On or about

1 April 1993 the applicant's detention was renewed, pursuant to section

20 of the 1983 Act, for another six months.

On 20 April 1993 the applicant obtained her discharge from the

secure unit in the hospital pursuant to section 23 of the 1983 Act and

she then applied for her full discharge from hospital. Further to a

report furnished by the applicant's consultant to the hospital on

12 May 1993, the applicant was reclassified as suffering from a

"psychopathic disorder" rather than mental illness.

On 24 May 1993 the Mental Health Review Tribunal ("MHRT")

reviewed the applicant's detention but decided against her discharge.

The MHRT accepted the applicant's recent diagnosis of psychopathic

disorder, found that group therapy was the only appropriate therapy for

her but concluded that the applicant was currently unwilling to

cooperate with that therapy. The MHRT found it unlikely that medical

treatment would alleviate or prevent a deterioration of her condition

but concluded that the deterioration, which had taken place in

hospital, might in due course give way to a subsequent alleviation of

her condition and a willingness to cooperate with appropriate therapy.

Until then it was necessary, in the MHRT's opinion, that the patient

should be detained.

The applicant applied to the High Court for judicial review of

the MHRT's decision. On 28 July 1993 that court found that the

evidential findings of the MHRT obliged the MHRT to order the discharge

of the applicant because, inter alia, the 1983 Act did not allow a

person suffering from a psychopathic disorder, who cannot be medically

treated for that condition, to be detained under the 1983 Act. The

MHRT's aspiration, that the further detention of the applicant would

lead to her agreement to group therapy, was not a lawful ground of

detention. The High Court directed the discharge of the patient by a

MHRT and she was accordingly discharged.

The MHRT appealed to the Court of Appeal but in the meantime the

applicant was again admitted to hospital under section 3 of the 1983

Act on the grounds of mental illness.

The Court of Appeal determined that it had jurisdiction to hear

the appeal despite the fact that the applicant had been re-admitted and

that the outcome of the appeal would therefore have no effect on her

liability to detention. On 16 February 1994 the Court of Appeal allowed

the appeal, thus endorsing the MHRT's decision. The Court of Appeal

refused leave to appeal to the House of Lords and on 27 April 1994 the

House of Lords also refused leave to appeal.

The applicant was discharged from detention in February 1994 and

remains at liberty to date.

COMPLAINTS

The applicant complains that the decisions of the Mental Health

Review Tribunal and the Court of Appeal constitute a violation of

Article 5 para. 4 of the Convention and that the provisions relating

to reviews before the Mental Health Review Tribunal contained in the

Mental Health Act 1983 are themselves in violation of Article 5

para. 4. The applicant claims a consequent entitlement to compensation

under Article 5 para. 5 of the Convention and further complains under

Article 13 of the Convention that she had no effective domestic remedy.

THE LAW

The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention in relation to the decision of the Mental Health Review

Tribunal ("MHRT") and the Court of Appeal and about the provisions

governing MHRT reviews contained in the Mental Health Act 1983 ("the

1983 Act"). She refers, inter alia, to the different proofs required

of the authorities at the committal and review stages. She claims that

she is therefore entitled to compensation under Article 5 para. 5

(Art. 5-5) of the Convention. She also complains that she does not have

an effective domestic remedy in relation to her complaints as

guaranteed by Article 13 (Art. 13) of the Convention.

However, the Commission is not required to determine the question

as to whether the applicant's complaints disclose a violation of the

Convention because the application is, in any event, inadmissible for

the following reasons.

Under Article 25 (Art. 25) of the Convention the Commission may

receive petitions only from those who can claim to be a "victim" of a

violation of the rights set forth in the Convention. In this respect,

the applicant submits that, though she is not currently in detention,

she has already been directly affected by the MHRT and the Court of

Appeal decisions and that her current mental condition means that she

is at risk of being detained under the 1983 Act in the future. She

argues that there exists, therefore, a continuing situation. She

further submits that her mental condition has also been exacerbated by

the aforementioned decisions and by her fear of a possible future

committal under the current legislative regime.

As regards the applicant's complaints in relation to the

decisions of the MHRT and the Court of Appeal, the Commission notes

that the decision of the MHRT was overturned by the High Court on

28 July 1993 and that, pursuant to the order of that court, the

applicant was discharged. While the decision of the High Court was

subsequently overturned by the Court of Appeal, the applicant was never

re-admitted to hospital on foot of her original committal in October

1992 because of the decision of the Court of Appeal. The applicant was

re-admitted, while the appeal before the Court of Appeal was in

progress, but this was pursuant to a fresh application under section 3

of the 1983 Act which was independent of the impugned MHRT and Court

of Appeal decisions of which the applicant complains. The Court of

Appeal itself held that it had jurisdiction to deal with the appeal

even though the result would not have any effect on the applicant's

current status.

The Commission therefore finds that the decision of the High

Court was successful in reversing the effect of the MHRT's decision and

that the decision of the Court of Appeal was, when delivered, largely

academic to the applicant's position at that time.

As regards the applicant's complaint in relation to the

provisions of the 1983 Act, the Commission further recalls that in

order to be considered a "victim" within the meaning of Article 25

(Art. 25) of the Convention an applicant must be able to demonstrate

that the legislative regime, about which the applicant complains, has

been applied to the applicant's detriment or that the applicant is

personally and directly affected by that legislation (cf, for example,

Eur. Court H.R., Klass and Others judgment of 6 September 1978, Series

A no. 28, paras. 33-34 and Marckx judgment of 13 June 1979, Series A

no. 31, para. 27)

The Commission notes that the applicant is not currently in

detention and that she has not claimed that there exists any specific

and immediate threat of, or current application for, her further

committal. Accordingly the Commission finds that the applicant, in her

current circumstances, cannot claim to be personally and directly

affected by the legislative provisions of which she complains within

the meaning of the above-mentioned Klass and Marckx judgments.

The Commission therefore concludes that the applicant cannot

claim to be a victim a violation of Article 5 para. 4 (Art. 5-4) of the

Convention within the meaning of Article 25 (Art. 25) of the

Convention.

It follows that, since the applicant cannot claim to be a victim

of a violation of Article 5 para. 4 (Art. 5-4) of the Convention, she

has established no right to compensation under Article 5 para. 5

(Art. 5-5) of the Convention (cf., for example, No. 10371/83, Dec.

6.3.85, D.R. 42, p. 127). Furthermore, the Commission considers that,

since Article 5 para. 4 (Art. 5-4) constitutes the lex specialis in

the area covered by it and Article 13 (Art. 13) the lex generalis, it

is not necessary to examine the complaint under Article 13 (Art. 13)

of the Convention (No. 11256/84, Dec. 5.9.88, D.R. 57, p. 47).

Accordingly, the Commission concludes that the application is

inadmissible 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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E. A. v. the UNITED KINGDOM

E. A. v. the UNITED KINGDOM

LEXI