DISSENTING OPINION OF

I am unable to share the view of the majority of the Commission that there has been no violation of Article 5 para. 1 of the Convention in the present case.

I have serious doubts as to whether para. 1 (e) of Article 5, which speaks about the lawful detention of “alcoholics”, covers cases of persons who are occasionally under the influence of alcohol but are not falling within the category of persons addicted to alcohol.  However I don’t find it necessary to come to a final conclusion with regard to this issue because I find that there is, in any event, a violation of the aforesaid provisions of the Convention for the following reasons.

Assuming that the applicant could be considered, for the purposes of the provisions of Article 5 para. 1 (e), as an “alcoholic” it is still necessary to examine whether his detention was not an arbitrary act in the circumstances of the present case.  The mere fact that a person falls within the category of those persons in respect of which deprivation of liberty is allowed by Article 5 does not automatically make his detention lawful under any circumstances.  Article 5 aims at preventing arbitrary deprivation of liberty.  As the Court pointed out the Convention “requires in addition (to compliance with the domestic law) that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness” (see Tsirlis and Kouloumpas Judgment of 29/5/97 Reports of Judgments and Decisions 1997 - II, Vol. 38 page 910 at page 923).  In order that the detention of any person be lawful under the above provision it is essential that such detention is reasonably necessary.  As in the case of persons of unsound mind the detention of persons under the influence of alcohol, can only be lawful if it becomes really necessary for their protection  or the protection of others; in other words if their behaviour presents a real danger to themselves or to others.

In this particular case the applicant was arrested and detained for six hours and thirty minutes simply because he complained loudly to the postal clerks that his post office boxes were unlocked.   It should be stressed here that the applicant is a disabled person.  He is blind in one eye and his sight in the other is severely impaired.  He was walking with the assistance of a guide-dog.  In these circumstances he could not reasonably be considered as a real danger to anybody.  What is more his complaint was a legitimate and understandable expression of protest to persons in power.  The mere fact that he was to some extent intoxicated (the degree of such intoxication, being described by the authorities as merely “moderate”) could not in the light of all relevant facts of this case justify his detention.

For the above reasons I find that such detention was arbitrary and consequently in breach of Article 5 para. 1 (e) of the Convention.

(Or. English)

MR M.A. NOWICKI

With regret I am unable to agree with the Commission’s conclusion that there has been no violation of Article 5 para. 1 of the Convention in this case.

The case concerns the question of whether the applicant's detention in a so - called "sobering up centre " was "lawful" within the meaning of Article 5 para.1 of the Convention.

A reply to the above question requires, first of all, the resolution of the issue of whether or not such a form of detention does indeed fall within the scope of "lawful detention of alcoholics" within the meaning of Article 5 para. 1 (e) of the Convention. This leads to the unavoidable need to interpret the term "alcoholics" as used in this provision. Up to now there have been no reported cases in which this term has been interpreted.

In my view the term "alcoholics" is reasonably capable of only one meaning and that, therefore, it covers only persons who are medically classified as dependent on alcohol. This opinion is supported by the meaning of  "alcoholics" in medical science and essentially reflects the golden rule - constantly affirmed by the Commission and the Court - that ordinary words must be given their ordinary meaning. In the light of developments in medical science, the notion of "alcoholism" has been continually evolving since the time at which the Convention was drafted to the present day. As research in psychiatric science has developed, the medical diagnostic criteria for "alcoholism" have been constantly revised and reformulated. At least until the end of the 1960s alcoholism was categorised as a personality disorder or neurosis or classified under these headings. Between the end of the 1970s and the beginning of the 1980s the term "alcoholism" was dropped in favour of two distinct categories called "alcohol abuse" and "alcohol dependence". At present, both of these categories have been classified as the clinical states of the so - called "substance use disorder" relating to alcohol, at whatever stage of progress in psychiatric research, from medical point of view has never been possible to say that either a state of intoxication (in particular one which lasted for a short time) or a single instance of intoxication, is equivalent to or comparable with "alcoholism" or (in modern medical language) "alcohol dependence" or - in a larger sense - "alcohol use disorder". On the contrary, "intoxication" appears to be associated with occasional drinking rather than recurrent and continued use of alcohol. Therefore the category of "intoxicated persons" cannot be interpreted as equivalent to "alcoholics" within the meaning of Article 5 para. 1 (e) of the Convention.

The applicant's detention fell outside the list of categories in which deprivation of liberty is permitted. For these reasons I have voted in favour of a violation of Article 5 para. 1 of the Convention.

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

on 1 November 1998.