Information Note on the Court’s case-law 31

June 2001

Magalhães Pereira v. Portugal (dec.) - 44872/98

Decision 14.6.2001 [Section IV]

Article 5

Article 5-4

Review of lawfulness of detention

Review of lawfulness of continuation of psychiatric detention of a person considered not to be criminally liable because of his mental illness: admissible

The applicant was placed in a secure psychiatric unit in December 1 996 after it was found that he could not be held criminally responsible for his actions because he was mentally ill. He lodged several habeas corpus applications with the Supreme Court, which dismissed them, finding that his situation was not unlawful, as his detention had been ordered as a preventive measure. In January 2000 the Supreme Court decided that habeas corpus applications made by the applicant would no longer be considered, since an expert had concluded that the applicant’s mental illness made hi m incapable of understanding what his applications meant. Meanwhile, a judge at the Oporto Criminal Court had ordered that the mandatory periodic review of the applicant’s detention should take place on 1 March 1998. Although a favourable assessment of the applicant’s conduct was submitted in March 1997, the judge decided to await the expiry of the prescribed time. In 1997 the applicant himself applied for release on the basis of a favourable medical report. In accordance with the relevant legislation, the judge requested the opinion of two medical institutions on the applicant’s social circumstances. After a second personal application for release in 1998, the applicant was interviewed by the judge. He subsequently lodged a third application for release, ag ain of his own motion. In January 2000 the Execution of Sentences Court ruled that the applicant’s detention should continue and that there was no need to consider the applications for release lodged by the applicant himself. An appeal by the applicant was dismissed by the judge, who noted that the applicant was detained in a secure unit and that a lawyer had been officially assigned to represent him. In January 2001 the judge dismissed an application by State Counsel’s Office for the applicant’s release an d decided to reassess the situation when the next periodic review – scheduled for the end of January 2002 – was carried out. State Counsel’s Office appealed against that decision and the appeal proceedings are still pending.

Admissible under Article 5 § 1 and § 4: the Court dismissed the Government’s objection that domestic remedies had not been exhausted. The Government had not cited any earlier cases from which it could be inferred that the Supreme Court could examine possible grounds for ending a period of detention in a secure unit and order the release of a detainee on a habeas corpus application, although the relevant provision of the Criminal Code had been in force since 1988. A remedy had to be effective both in theory and in practice. In the present case, the remedy in issue had not been effective. The objection was therefore dismissed and the applicant’s complaints concerning the review of the lawfulness of continuing his detention were declared admissible.

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

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