Resolution CM/ ResDH (2010) 139 [1]

Execution of the judgment of the European Court of Human Rights

Johnson and Kolanis against the United Kingdom

(Johnson, Application No. 22520/93, judgment of 24 October 1997, final on 24 October 1997; and

Kolanis , Application No. 517/02, judgment of 21 June 2005, final on 21 September 2005)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern (Johnson) the continued detention in a psychiatric hospital of an individual who was no longer suffering from mental illness ( Johnson) (violation of Article 5, paragraph 1); the absence of prompt review of the lawfulness of keeping the applicant in psychiatric detention (violation of Article 5, paragraph 4) and the lack of a right to redress for this violation ( Kolanis ) (violation of Article 5, paragraph 5) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)139

Information on the measures taken to comply with the judgments in the cases of

Johnson and Kolanis against the United Kingdom

Introductory case summary

The Johnson case concerns the applicant ’ s continued detention in hospital, from June 1989 to January 1993 even though he was no longer suffering from mental illness, pending his placement in a hostel (violation of Article 5, paragraph 1). The Mental Health Review Tribunal (MHRT) imposed a specific condition of discharge under section 73 of the Mental Health Act 1983 that the applicant should be placed in a hostel and deferred discharge until that specific condition was met. The European Court noted in particular the lack of adequate safeguards to ensure that release from detention in such situations would not be unreasonably delayed (§67).

The Kolanis case concerns the fact that from May 1999 until August 2000 the applicant could not obtain a court decision concerning the lawfulness of her continued detention in hospital (also under section 73 of the Mental Health Act 1983) despite the MHRT ’ s decision to discharge her to her parent ’ s home. After a year, the applicant ’ s situation was referred to the Secretary of State but the European Court did not consider that this was sufficiently prompt to remedy the lack of review (violation of Article 5, paragraph 4).

The Kolanis case also concerns the lack of an enforceable right to redress (violation of Article 5, paragraph 5).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Johnson, Application No. 22520/93

10 000 GBP

25 000 GBP

35 000 GBP

Paid within the time-limit

Kolanis ,

Application No. 517/02

6 000 EUR

10 656 EUR

Paid on 15/11/2005

b) Individual measures

Mr Johnson was released from hospital on 21 January 1993. In December 2000, Ms Kolanis was conditionally discharged from hospital to a resettlement project hostel in London .

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Violation of Article 5, paragraphs 1 and 4 : In 2002 there was a development in domestic case-law with respect to section 73 of the Mental Health Act 1983 when the courts considered a case similar to the Kolanis case which overruled previous authority that was perceived to conflict with the requirements of Article 5 (the IH case, judgments of Court of Appeal of 15 May 2002 and of House of Lords of 13 November 2003). When giving judgment the House of Lords took the European Court ’ s case-law into account and found that there had been a breach of Article 5(4). The House of Lords also gave guidance as to how the authorities should give effect to the legislation to avoid breaches in the future. According to the guidance, if the conditions fixed in a decision to direct a conditional discharge by a mental health review tribunal cannot be immediately implemented, then that decision should be considered to be a provisional decision and the tribunal should monitor progress in implementing the conditions and vary the conditions or modify its decision (see §§58-60 Kolanis ).

The applicant in IH subsequently made an application to the European Court, which was found inadmissible following the judgment of the House of Lords (admissibility decision 17111/04) on the basis that “the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress as appropriate” (paragraph 2).

Concerning the violation of Article 5, paragraph 5 : an enforceable right to compensation for the violation of Article 5, paragraph 4 was introduced by the Human Rights Act 1998 which entered into force in 2000 (see §85 of the Kolanis judgment).

The Johnson judgment was published in the European Human Rights Reports at (1999) 27 EHRR 296. The Kolanis judgment was published in Butterworth ’ s Medical Legal Reports (2005) at 84 B.M.L.R. 102, and also in The Times on 28 July 2005.

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the United Kingdom have thus complied with their obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 15 September 2010 at the 1092nd meeting of the Ministers’ Deputies