Final resolution DH ( ) 371

HUMAN RIGHTS

APPLICATION No. 17821/91

Kay AGAINST the United Kingdom

(Adopted by the Committee of Ministers on 12 November 1998 at the 647th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the decision of 21 September 1994, in the case of Kay against the United Kingdom, in which the Committee of Ministers held under Article 32, paragraph 1, of the Convention that there had been in this case a violation of Article 5, paragraph 1 and a violation of Article 5, paragraph 4, of the Convention; and having regard to Interim Resolution DH (96) 674, adopted on 15 November 1996, in which the Committee of Ministers decided to make public the report of the European Commission of Human Rights as well as its decision of 21 September 1994;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 26 May 1995;

Whereas, at the 546th meeting of the Ministers’ Deputies, the Committee of Ministers, agre e ing with the Commission's proposals, held by a decision adopted on 19 October 1995, in  accordance with Article 32, paragraph 2, of the Convention, that the government of the respondent State was to pay the applicant as just satisfaction, within three months, 300 pounds sterling in respect of non-pecuniary damage and 7 267.89 pounds sterling in respect of costs and expenses, namely a total sum of 7 567.89 pounds sterling;

Whereas the Committee of Ministers invited the government of the respondent State to inform it of the measures taken following its decisions of  21 September 1994 and 19 October 1995, having regard to the United Kingdom’s obligation under Article 32, paragraph 4 of the Convention to abide by them;

Whereas, during the examination of the case by the Committee of Ministers, the government of the respondent State accordingly gave the Committee information about the measures taken in consequence of the Committee's decisions, this information a p pears in the appendix to this resol u tion;

Whereas the Committee of Ministers satisfied itself that on 4 March 1996, after the time-limit set, the government of the respondent State paid the applicant the total sum of 7 567.89 pounds sterling as just satisfaction,

Declares, after having taken note of the measures taken by the Government of the United Kingdom, that it has exercised its fun c tions under Article 32 of the Convention in this case.

Appendix to Final Resolution DH (98) 371

Information provided by the Government of the United Kingdom during the examination of the Kay case by the Committee of Ministers

The Home Office has changed its practice in order to avoid any repetition of the violation found  in the present case under Article 5, paragraph 1, of the European Convention on Human Rights.  Persons considered of unsound mind are no longer recalled to hospital in the absence of up-to-date, objective medical expertise confirming that they suffer from a true mental disorder.  This practice has been integrated into the relevant staff instruction manuals.

With regard to the violation of Article 5, paragraph 4, the rules of the Mental Health Review Tribunals have been amended. The Tribunals are now required to arrange for a hearing not later than eight weeks from the date when they receive, from the Secretary of State, reference of a case concerning the recall of conditionally discharged patients.  The amended Rules came into effect on 1 June 1998.

The Government of the United Kingdom considers that the measures adopted will prevent further violations of the same kind and that United Kingdom has, accordingly, complied with its obligations under Article 32 of the Convention in this respect.