Information Note on the Court’s case-law 64

May 2004

Morsink v. the Netherlands - 48865/99

Judgment 11.5.2004 [Section II]

Article 5

Article 5-1-e

Persons of unsound mind

Pre-placement detention in a remand centre for more than 15 months pending transfer to a custodial clinic: violation

Facts : The applicant, who had a record of theft, criminal damage and assault, was convicted by the Regional Court of assault c ausing serious bodily harm and sentenced to fifteen months' imprisonment. As the applicant's mental faculties were so poorly developed, in combination with the prison sentence he received an order for confinement in a custodial clinic (“TBS” order). The ju dgment was upheld by the Court of Appeal. On 5 February 1998 the applicant completed his prison sentence and the TBS order took effect. However, he was not transferred to a custodial clinic and was held in pre-placement detention in an ordinary remand cent re. Domestic legislation establishes that when there is a lack of capacity in custodial clinics a person who has received a TBS order can be kept in ordinary detention for six months, and thereafter, for successive periods of three months on decision of th e Minister of Justice. On the basis of this legislation, the applicant was kept in an ordinary remand centre until 17 May 1999, when he was admitted to a custodial clinic. Whilst in pre-placement detention the applicant filed consecutive appeals against th e apparently ex officio prolongations by the Minister of his pre-placement detention. In June 1999, the Appeals Board quashed, on formal grounds, the Minister's prolongation for the period 31 January to 30 April 1999. It found, however, that the total dura tion of the applicant's pre-placement detention pending transfer to a clinic had not been unreasonable nor had the impugned decision breached relevant legislation. In November 1999, the Appeals Board ruled on the last prolongation period challenged by the applicant, finding this time a material breach of the law for the period of pre-placement detention in excess of 15 months, which could be regarded as unreasonable and inequitable. The applicant was thus awarded compensation for the sixteen days of his pre -placement detention which had exceeded 15 months.

Law : The applicant could not claim to be a victim for the time he spent in pre-placement detention between 1 and 17 May 1999, as the Appeals Board had acknowledged in substance that his right to liberty an d security had been breached and he had been afforded redress in the form of financial compensation. However, the Board had not found the applicant's first fifteen months in pre-placement detention to be unlawful, so he could claim to be a victim in respec t of that period.

Article 5 § 1 – Although the applicant's pre-trial detention for the period under consideration had been lawful under domestic law, it also had to be established whether such a detention was in conformity with the purpose of Article 5 § 1 , that is, to prevent arbitrary deprivations of liberty. In principle the “detention” of a person as a mental health patient will only be “lawful” for the purposes of 5 § 1 (e) if effected in a hospital, clinic or other appropriate institution. However, th e Court did not accept the applicant's argument that the failure to admit him to a custodial clinic on 5 February 1998 rendered his detention after that date automatically unlawful. It was not contrary to Article 5 § 1 to commence the procedure for selecti ng the most appropriate custodial clinic after the TBS order had taken effect, and it would be unrealistic to expect immediate placement after the selection had taken place. A balance had to be struck between the competing interests, giving particular weig ht to the applicant's right to liberty. A significant delay in admission to a custodial clinic would obviously affect the prospects of a treatment's success. In the circumstances, a reasonable balance had not been struck. Whilst there was a problem of a st ructural lack of capacity in custodial clinics, as the authorities were not faced with an exceptional or unforeseen situation, a delay of fifteen months in admission to a custodial clinic was not acceptable. To hold otherwise would entail a serious weakeni ng of the fundamental right to liberty to the detriment of the person concerned and thus impair the very essence of the right. Accordingly, there had been a violation of Article 5 § 1.

Article 41 – The Court awarded the applicant 6,000 euros in respect of non-pecuniary damage.

[NB: A similar judgment of the Court was delivered in the case of Brand v. Netherlands , no. 49902/99.]

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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