JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO, SPIELMANN , DE MEYER, CARRILLO SALCEDO AND VALTICOS

(Translation)

The majority of the Court took that view that the applicant ’ s committal to the Children ’ s Psychiatric Ward of the State Hospital from 26 September 1983 to 30 March 1984 did not constitute a deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention, but was the result of the exercise by the applicant ’ s mother of custodial rights in the interests of the child. In consequence, the Court held that Article 5 (art. 5) did not apply and that, accordingly, it was not necessary in the present case to enquire into the interpretation of the first sentence of Article 5 para. 1 (art. 5-1) or the possible application of Article 5 (art. 5) to situations in which a deprivation of liberty occurs through the action of a private individual.

We cannot subscribe to this view, and in this respect we find ourselves in agreement with the conclusion reached by the Commission. We consider that the specific conditions in which the applicant was admitted to the hospital and placed, against his will, in the psychiatric ward, and the length and nature of the committal, are important criteria in determining whether the applicant was deprived of his liberty. Like the Commission, we attach great importance to the fact that the committal lasted over a period of several months and involved the placing in a psychiatric ward of a twelve-year-old boy who was not mentally ill. In our view, that constituted a deprivation of liberty within the meaning of Article 5 (art. 5) of the Convention (see paragraphs 108, 109 and 111 of the Commission ’ s report).

The respondent State is accountable for this deprivation. It not only tolerated it, but also associated itself with it through the action and assistance of its organs and officials.

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO, SPIELMANN , DE MEYER AND VALTICOS

(Translation)

Having taken the view, expressed in the above opinion, that Article 5 (art. 5) applies to the present case, we consider that there has been a violation of Article 5 para. 4 (art. 5-4) in this case, because the applicant was detained in a psychiatric hospital over a period of several months, during which period he did not have the right to take proceedings in a court because he was not suffering from a mental disorder, whereas, paradoxically, he would have had such a right if he had in fact been mentally ill.

JOINT DISSENTING OPINION OF JUDGES PETTITI AND DE MEYER

(Translation)

In our view there has also been a violation of the first paragraph of Article 5 (art. 5-1).

The applicant ’ s committal could not be based on any of the grounds which could have justified it under this paragraph (art. 5-1).

It did not constitute the normal exercise of parental authority or the normal practice of psychiatry. In fact it represented an abuse of both.

As the Court of Appeal for Eastern Denmark noted on 15 February 1984 : "there has been no question of admittance for treatment of a mental illness" [1] . The evidence shows that the applicant ’ s committal occurred in the context of a conflict between his mother and his father regarding custody. "It was clear that (the applicant) did not want to stay with her (his mother)" [2] , and had better relations with his father, to whom the Danish Supreme Court ultimately awarded custody by its judgment of 21 August 198 4 [3] .

His committal, in such circumstances, to a psychiatric establishment did not greatly differ from, for instance, the sort of committal which is effected in order to secure family property. It was of the same type as committals which take place only too frequently, for non-therapeutic purposes.