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 10 October 1994 and 10 April 1995, but I do not share the opinion of the majority that pre-placement detention 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 detention 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 23 June 1994 was fifteen months ’ imprisonment followed by confinement in a custodial clinic. Therefore, after completing his term of imprisonment on 10 October 1994 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 28 December 1995 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 needed 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 six months.

DISSENTING OPINION OF JUDGE THOMASSEN JOINED BY JUDGE JUNGWIERT

The applicant was convicted of participation in robbery with violence resulting in 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 Morsink v. the Netherlands (no. 48865/99), in which the Court has also delivered judgment today. In that case new legislation had come into force, which set a time-limit of six months for selecting the most appropriate setting and for waiting in a remand centre pending admission to a suitable clinic, and which provided for the possibility of extending that time-limit under certain conditions by further periods of three months.

In the present case the Supreme Court ruled that the applicant ’ s detention during this six ‑ month period was lawful under national law, applying the principle laid down in its case ‑ law since 1963 to the effect that detention in a remand centre under a confinement order is not, in principle, unlawful.

Although the Court does accept the Supreme Court ’ s finding that detention in a remand centre under a confinement order is not in principle unlawful, it does not accept the Supreme Court ’ s conclusion that this applies to a period of six months without, however, indicating what period would be acceptable. 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 (§ 62). 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 for a period of, initially, two years. 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 period of two years. It followed from the Supreme Court ’ s case-law dating from 1963 that the applicant could not expect to have been placed immediately in a custodial clinic. 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 ). Therefore I find that the Supreme Court ’ s assessment that detention in a remand centre for a period of six months is covered by the confinement order cannot be considered arbitrary. In my view the applicant ’ s detention was justified under sub-paragraph (a) of Article 5 § 1.

I recognise that, even if this six-month 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.