PARTLY DISSENTING OPINION

OF MS J.LIDDY AND MR S.TRECHSEL, JOINED BY MM E. BUSUTTIL, I. BÉKÉS, K. HENRDL AND A. ARABADJIEV

As regards Article 5 para. 1 (e) of the Convention .

On 31 August 1994 the applicant, then over 80 years of age, used a firearm in a protest about the placing and inscription of a monument. An employee of a cemetery was wounded and the applicant also tried to commit suicide. The applicant was immediately arrested  on suspicion , inter alia , of causing damage to life and limb and remained in custody in the internal medicine department of the prison hospital where he remained until his release on 25 November 1994.

On 8 September 1994 a psychiatrist examined the applicant and concluded that he suffered from an advanced paranoiac reaction with a strong affective component.

Until 20 September the applicant was detained for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, as permitted by Article 5 para. 1 (c). On that date the criminal proceedings were discontinued by the District Prosecutor. The domestic legal basis for the ensuing detention was Article 233 of the Code of Criminal Procedure permitting continued detention on remand until a decision is taken as to preventive measures e.g., psychiatric detention. The Convention issue is as to whether this continued detention was nonetheless „lawful” within the autonomous  meaning of Article 5 para. 1 (c).

Between 20 September 1994 and 25 November 1994 it was, apparently, the Prosecutor’s intention to keep the applicant in the prison hospital until a decision could be made by the Warsaw Regional Court as to his placement in a mental hospital. On the latter date he decided that his continued detention in the prison hospital was not necessary. In the interim, by 16 November 1994, the applicant had changed his conduct and recognised the inappropriateness of his actions leading to his arrest. Ancillary proceedings, including a challenge to the applicant’s continued detention, were considered by the Warsaw Regional Court on 6 October 1994 and 2 November 1994.

The Court laid down in the Winterwerp Judgment of 24 October 1979 (Series A Vol. 33, para. 39) the criteria for establishing whether the detention of a person thought to be of unsound mind is „lawful” within the meaning of Article 5 para. 1 (e) or, on the contrary, arbitrary:

“[E] xcept in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of „unsound mind”. The very nature of what has to be established before the competent authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind  or degree warranting compulsory confinement. What is more, the validity of continued confinement depends on the persistence of such a disorder.”

In the present case, the applicant was - on 8 September 1994 - reliably shown to be of unsound mind. The circumstances of his arrest and prosecution indicate that his mental state warranted compulsory confinement until a Court could rule on whether long-term treatment in detention was called for. When the Prosecutor decided, before the competent court had ruled, that his continued confinement in a prison hospital was not necessary, the applicant was immediately released. There is no indication of arbitrariness in any of these elements.

In reaching a contrary view as to the lawfulness of the applicant’s detention in this period, the majority rely, at paragraphs 86 - 89 of the report, on a number of considerations:

(a) The majority note that the Warsaw Regional Court had not yet ruled on the question of detention in a mental hospital. This is true but that Court was not inactive during the period in question.

(b) The majority consider that because the applicant’s physical health had deteriorated the assumption that he posed a threat to public order was not well-founded and that it was for the Government to produce fresh evidence as to his mental state. To that we would say that a fresh psychiatric examination was in fact ordered by the Warsaw Regional Court, on 22 December 1994. Moreover, there can be little doubt that the applicant’s conduct on 31 August 1994 was sufficiently alarming to alert the authorities to their positive obligation to protect the right to life of both the applicant and of others (cf. mutatis mutandis Osman v. United Kingdom judgment of 28 October 1998, Reports on Judgments and Decisions 1998-VIII). Moreover, it does not appear that the applicant had insight into the inappropriateness of his actions until 16 November 1994 or shortly beforehand.

(c) The majority consider that the Prosecutor was inactive throughout the period in pursuing the relevant court proceedings. It is true that a period of two months is rather lengthy for an individual to be detained, even in an emergency situation, without any steps being taken to seise the relevant Court, and that such lachesse could entail arbitrariness in other circumstances. In the present case, however, the prosecutor took steps to ascertain medical advice as to the applicant’s fitness for detention in the prison hospital; he dealt with appeals to the Warsaw Regional Court against his decision to seek the applicant’s psychiatric internment  and to detain him in the prison hospital; and he gave consideration as to whether a fresh psychiatric examination was necessary before filing his formal request to have the applicant placed in a mental hospital. Moreover, he was in receipt of a judgment from the Warsaw Regional Court on 2 November 1994 that the applicant’s continued detention in the prison hospital should be upheld as it served the purpose of psychiatric internment, i.e., the applicant’s isolation was necessary in view of his possible violent behaviour, pending the outcome of relevant judicial proceedings.

(d) The majority consider that the treatment which the applicant received in the prison hospital related only to his physical condition and that no psychiatric treatment was administered to him. We note that the only complaint under Article 3 relates to the state of the applicant’s physical health and that there is no evidence that he was denied any visits, medication or other treatment he may have required on a voluntary basis by reason of his mental state. The prison hospital had a forensic psychiatry department which provided the psychiatrist who examined him on 8 September 1994.

For all these reasons we are unable to share the opinion of the majority and have voted against a violation of Article 5 para. 1 (e) in respect of the applicant’s detention from 21 September 1994.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.