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KAY v. THE UNITED KINGDOMDISSENTING OPINION OF Mr. SCHERMERS

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Document date: March 1, 1994

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KAY v. THE UNITED KINGDOMDISSENTING OPINION OF Mr. SCHERMERS

Doc ref: • ECHR ID:

Document date: March 1, 1994

Cited paragraphs only

DISSENTING OPINION OF Mr. SCHERMERS

The main reason why I do not share the opinion of the

majority of the Commission concerns the proof surrounding the

applicant's mental health. It is true that there was no decisive

evidence of psychopatic disorder in 1989, but it is also true

that the applicant had then been in prison for some three years.

He had therefore not lived under normal conditions, which made

the establishment of convincing proof at that time difficult.

Weighing the interests of the applicant against the risks

he posed for society, one must take account of the following

elements :

(1) the prior conduct of the applicant;

(2) the different reports which concluded that he suffered from

a mental disorder, and which at least doubted whether this

disorder was at all curable;

(3) the fact that the applicant was liable to recall at any

time, being subject to a conditional discharge.

In these circumstances and taking account of the discretion

which should be left to the national authorities, I accept that

the detention was lawful under Article 5 para. 1 (e) of the

Convention.

A further medical examination at the time of his release

from the Albany prison could have shown the absence of any

symptoms of psychopatic disorder at that particular moment. It

could not have offered any guarantee that the applicant would not

again commit crimes similar to those which he had committed six

times before. It is significant that in December 1986 the Mental

Health Review Tribunal had refused the applicant's absolute

discharge from hospital because it was considered appropriate to

leave open the possibility of recalling the applicant to hospital

for further treatment if the need were to arise after the

applicant's release from prison. In these circumstances I find

it acceptable that no further medical examination was requested

before the applicant was due for release from prison.

With respect to Article 5 para. 4 I share the opinion

expressed by Mr. Trechsel.

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

_________________________________________________________________

14 December 1990 Introduction of application

20 February 1991 Registration of application

Examination of admissibility

2 July 1991 Commission decision to communicate the

case to the respondent Government and

to invite the parties to submit

observations on admissibility and

merits

31 October 1991 Government's observations

13 December 1991 Commission's grant of legal aid

31 March 1992 Applicant's observations in reply

15 January 1993 Commission's decision to hold a hearing

7 July 1993 Hearing on admissibility and merits

7 July 1993 Commission's decision to declare

application admissible

Examination of the merits

20 July 1993 Decision on admissibility transmitted

to parties. Invitation to parties to

submit further observations on the

merits

4 December 1993 Commission's consideration of state of

proceedings

1 March 1994 Commission's deliberations on the

merits, final vote and consideration of

text of the Report. Adoption of Report

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