CONCURRING OPINION OF JUDGE LOUCAIDES

I agree that there has been a violation of Article 5 § 1 in this case in respect of the period between 5 February 1998 and 1 May 1999, but I do not share the opinion of the majority that pre ‑ placement in an ordinary remand centre pending transfer to a custodial clinic may, under certain circumstances, escape censure under Article 5 § 1 of the Convention.

I consider that pre ‑ placement cannot, under any circumstances, be considered as having a legal basis under Article 5 § 1 of the Convention. The provisions of this Article authorise “ the lawful detention of a person after conviction by a competent court ” and “ the lawful detention of persons ... of unsound mind... ” It is a well - established principle that the limitations on the rights provided in the Convention should be interpreted strictly and narrowly (see, among other authorities, Klass and Others v. Germany , judgment of 6 September 1978, Series A no. 28, p. 21, § 42, Sunday Times v. the United Kingdom , judgment of 26 April 1979, Series A no. 30, p. 40, § 65, Winterwerp v. the Netherlands , judgment of 24 October 1979, Series A no. 33, p. 16, § 37, and Guzzardi v. Italy , judgment of 6 November 1980, Series A no. 39, p. 36, § 98). This applies in particular to the list of permissible exceptions in paragraph of Article 5 of the Convention “...having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom” (see Kurt v. Turkey , judgment of 25 May 1998, Reports 1998-III, p. 1184, § 122; and see also Ciulla v. Italy , judgment of 22 February 1989, Series A no. 148, p.18, § 41; and Labita v. Italy , [GC], no. 26772/95, § 170, ECHR 2000-IV).

The lawful sentence imposed on the applicant by the Arnhem Regional Court in its judgment of 21 January 1997 was fifteen months ' imprisonment followed by confinement in a custodial clinic. Therefore, after completing his term of imprisonment on 5 February 1998 he should have been transferred forthwith to a custodial clinic. The fact that the authorities were facing practical difficulties in finding accommodation for the applicant in such a clinic and had to keep him in a remand centre until 17 May 1999 cannot by itself justify a deviation from the terms of the judgment in question which, as already pointed out, was the only lawful basis for depriving the applicant of his liberty. The majority stated in this respect:

“The Court further considers that, once this selection procedure has been completed, it would be unrealistic and too rigid an approach to expect the authorities to ensure that a place is immediately available in the selected custodial clinic. It accepts that, for reasons linked to the efficient management of public funds, a certain friction between available and required capacity in custodial clinics is inevitable and must be regarded as acceptable”.

I find this reasoning, which is used to explain what in my opinion amounts to a deviation from the judgment in question, unpersuasive. Reasoning of this type opens the door to abuse, as it allows the authorities to rely on practical problems as a sufficient legal excuse for failing to comply with the requirements of the Convention. It also creates a risk of arbitrariness. I would note that the Court has repeatedly held in respect of the “reasonable-time” requirement under Article 6 of the Convention that the authorities cannot rely on practical difficulties to justify unreasonable delays and that the High Contracting Parties are expected to organise their judicial system in such a way as to meet the requirements of Article 6 § 1 of the Convention (see, among other authorities, Andrzej and Barbara Piłka v. Poland , no. 39619/98, § 55, 6 May 2003; and Duclos v. France , judgment of 17 December 1996, Reports 1996-I, pp. 2180-81, § 55 in fine ). I believe that this approach should be applied, mutatis mutandis , to the situation under consideration.

In the light of the above and of the demands of the rule of law, I cannot accept that the applicant ' s pre ‑ placement detention in a remand centre, where no medical care was available of the kind he would have received had he been sent to the custodial clinic in accordance with the judgment authorising his detention, does not amount to a deprivation of liberty contrary to Article 5 § 1 of the Convention. This unlawful detention was aggravated by the fact that it continued for fifteen months.

DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE JUNGWIERT

The applicant was convicted of assault and assault occasioning grievous bodily harm, and was sentenced to fifteen months ' imprisonment in combination with an order for his confinement in a custodial clinic (confinement order).

After the date on which he had become eligible for early release, the applicant remained in detention in a remand centre pending the procedure for the selection of the most suitable custodial clinic for him, and pending his admission to that clinic.

The issue before the Court is whether the applicant ' s detention in a remand centre was lawful under Article 5 § 1, since the aim of the order is to place the person concerned in a custodial clinic.

This issue is the same as in the case of Brand v. the Netherlands (no. 49902/99), in which the Court has also delivered judgment today. In that case the basis for the applicant ' s placement in a remand centre was the case-law of the Supreme Court, dating from 1963, to the effect that detention in a remand centre under a confinement order is not, in principle, unlawful.

In the present case new legislation was in force, which confirmed this case-law. A time-limit of six months was set for selecting the most appropriate setting and for waiting in a remand centre pending admission to a suitable clinic, and that time-limit could be prolonged under certain conditions by further periods of three months.

The Court does not accept this legislation as being in compliance with Article 5 § 1 of the Convention. It emphasises that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention, and that, in principle, the detention of a person as a mental health patient will only be lawful for the purposes of sub-paragraph (e) of Article 5 § 1 if effected in a hospital, clinic or other appropriate institution (§ 65). It concludes that the applicant ' s detention was unlawful.

I cannot agree with the Court ' s conclusion. The Regional Court found the applicant to represent a threat to public safety and in order to protect society it imposed a confinement order on him. The confinement order implied that the applicant should not be released on the date on which he became eligible for early release but should remain in detention for a further period of, initially, two years. It followed from the legislation in force that the applicant would not have been placed immediately in a custodial clinic. A time-limit of six months was provided for under the law, with the possibility of further extensions of three months. The fact that the confinement order was aimed at having the applicant undergo treatment of his mental disorder did not affect in my view the main ground for his detention, namely the protection of society after a conviction for serious crimes (see, mutatis mutandis, Bizzotto v. Greece , judgment of 15 November 1996, Reports 1996-V). The prolongation decisions taken in the present case were examined on appeal by the Appeals Board , which took into consideration the available capacity, an indication of the average duration of transitory stays in remand centres, a report in relation to the applicant ' s mental condition, and a statement by a doctor on the question whether the applicant, in view of his mental condition, was able to stay any longer, on a transitory basis, in a remand centre. I cannot follow the Court in finding both the law in general and the decisions of the Appeals Board arbitrary. In my view the applicant ' s detention in a remand centre was justified under sub-paragraph (a) of Article 5 § 1.

I recognise that, even if the period spent in detention in a remand centre by the applicant is lawful, it may give rise to issues under the Convention; in particular, combined with a lack of adequate medical care, detention in a remand centre could be rendered incompatible with Article 3. However, in the present case, such circumstances were not alleged, nor are they apparent from the case file.

It follows from the above that I cannot follow the majority in its finding that the applicant ' s detention was unlawful, nor can I find that the applicant ' s personal circumstances were neglected in an inhuman way.