Information Note on the Court’s case-law 39

February 2002

Magalhães Pereira v. Portugal - 44872/98

Judgment 26.2.2002 [Section IV]

Article 5

Article 5-4

Review of lawfulness of detention

Review of lawfulness of continuation of psychiatric detention: violation

Procedural guarantees of review

Lack of effective legal assistance for psychiatric detainee in proceedings concerning review of continuation of confinement: violation

Facts : The applicant was placed in a secure psychiatric unit in December 1996 after it was found that he could not be held criminally responsible for an offence of fraud because of mental illness. In January 1997 a judge of the criminal court de aling with the case ordered that, pursuant to the relevant legislation, the mandatory periodic review of the applicant’s detention should take place on 1 March 1998. In February 1997 the judge responsible for the execution of sentences assigned a lawyer to represent the applicant. On 2 July 1997 the applicant himself applied for release on the basis of a favourable medical report. On 4 July 1997 the judge marked the file “seen”. In January 1998, in accordance with the relevant legislation, the judge request ed the opinion of two medical institutions on the applicant’s personal circumstances. The two institutions submitted their reports after examining the applicant in May 1998. One found that his circumstances indicated that he should be released, but the oth er was opposed to releasing him. In July 1998 the applicant, who had personally lodged a second application for release, was interviewed by the judge. As the applicant’s officially assigned counsel was not available on that occasion, the judge appointed as his representative an official from the penal institution in which he was detained. The applicant subsequently lodged a third application for release, again on his own initiative. In April 1999 he absconded while on temporary release, only being recapture d in November 1999, at his home. In January 2000 the Execution of Sentences Court decided that the applicant’s confinement should continue. The judge responsible for the execution of sentences based his decision on the medical report of May 1998 which had been opposed to the applicant’s release, and on the fact that, in absconding, the applicant had shown that he could not be trusted. Lastly, the judge held that there was no need to consider the applications for release lodged by the applicant himself, in v iew of his mental illness. An appeal by the applicant against that decision was dismissed. In January 2001 the judge refused an application by State Counsel’s Office for the applicant’s release and decided to reassess the situation when the next periodic r eview (scheduled for the end of January 2002) was carried out. An appeal by State Counsel’s Office against that decision was dismissed in June 2001.

Law : Article 5 § 4 – (1) In cases concerning the confinement of persons suffering from psychiatric disorde rs, the procedure prescribed by the relevant Portuguese legislation entailed the periodic and automatic review by a court of the grounds for confinement. Furthermore, patients were entitled to request the lifting of the confinement order, and their release , at any time. In the instant case, the fact that the judge responsible for the execution of sentences had marked the file concerning the first application for release as “seen” could not be regarded as a decision regarding the validity of the grounds for confinement. Contrary to the order issued by the judge of the criminal court in January 1997, the first mandatory periodic review of the applicant’s confinement had not taken place until 20 January 2000, more than two and a half years after his initial app lication for release. Whether or not the seven months during which the applicant was at large were taken into account, that period had to be regarded as excessive, and there were no special grounds on which it could be justified for the purposes of Article 5 § 4. That reason alone was sufficient to warrant the conclusion that there had been a violation of that provision. Furthermore, in deciding in January 2000 that the applicant’s confinement should continue the Execution of Sentences Court had relied, int er alia , on a medical report drawn up in 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 applicant’s condition at the time of the decision. A delay of that length between the issue of the medical report and the subsequent decision was likely to conflict with the underlying principle of Article 5: the protection of individuals against arbitrariness when their liberty was at stake. La stly, the Execution of Sentences Court had failed to comply with the procedural rules on the mandatory periodic review by a court of the grounds for confinement, as laid down in domestic legislation.

Conclusion : violation (unanimously).

(2) As regards the applicant’s complaint that he did not receive adequate legal assistance, the Court ruled that where a person was confined in a psychiatric institution for having carried out acts which constituted criminal offences but for which he coul d not be held responsible on account of mental illness, he had, unless there were special circumstances, to receive legal assistance in subsequent proceedings relating to the continuation, suspension or termination of his confinement. The importance of wha t was at stake for him – personal liberty – taken together with the very nature of his affliction – diminished mental capacity – compelled that conclusion. In the instant case the applicant was suffering from a mental disorder that prevented him from takin g part unassisted in court proceedings, such as those concerning the periodic review of the lawfulness of his confinement. At the outset of the proceedings, in accordance with the law, the judge responsible for the execution of sentences had assigned a law yer to represent the applicant. However, the lawyer had not taken part in the proceedings at any stage. As the Court had previously held in respect of Article 6 § 3 (c), assigning counsel did not in itself ensure the effectiveness of the assistance afforde d the accused. In the instant case the lack of effective assistance had been glaringly apparent at the hearing in July 1998, when, in the absence of the officially assigned lawyer, the judge had appointed as the applicant’s counsel an official from the pen al institution in which he was confined. The Government had maintained that the judge had dispensed with the presence of the officially assigned lawyer in view of the fact that there were no legal issues to determine. That argument could not be accepted. F irstly, the purpose of the hearing in question had been to enable the judge to decide whether the applicant should be kept in confinement; it was self-evident that legal issues could be raised at such a hearing. Secondly, the judge had not decided that it was unnecessary for the applicant to be represented, since he had appointed the official from the penal institution to represent him. Even though that appointment appeared to be valid under domestic legislation and consistent with the Constitutional Court’ s case-law, it could not be regarded as adequate representation for the applicant. He had therefore not been granted adequate legal assistance.

Conclusion : violation (unanimously).

Article 41: The Court awarded the applicant 6,000 euros (EUR) for non-pecun iary damage and EUR 5,000, less EUR 1,779 already paid by the Council of Europe in legal aid, for costs and expenses.

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

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