DISSENTING OPINION OF JUDGE CARRILLO SALCEDO

(Translation)

Having taken the view, expressed in the above opinion, that Article 5 (art. 5) is applicable, I consider that there has been a violation of the first sentence of Article 5 para. 1 (art. 5-1) in this case.

In my view, the applicant ’ s committal to the psychiatric ward, against the background of disagreements between his parents concerning custody, raises the question whether, under the Convention, committal to a psychiatric ward on the decision of the parent with custody may be classified as a deprivation of liberty within the meaning of Article 5 para. 1 (art. 5-1), for which the State is responsible.

The administrative authorities acted throughout with the consent of the mother, the holder of parental rights over the child. Moreover, the medical experts considered all along, even in the Supreme Court, that it would be preferable for parental rights to remain with the mother, in the interests of the child (statement of Professor Tolstrup of 19 June 1984 and statement of the Medico-Legal Council of 9 August 1984 (see paragraph 37 of the judgment)). However, on 21 August 1984 the Supreme Court quashed the first-instance judgment and awarded the father custody.

The Commission found that the State was responsible because the Chief Physician of the State Hospital accepted the applicant ’ s admission to the psychiatric ward. For its part, the Court decided that the applicant ’ s hospitalisation did not constitute a deprivation of liberty within the meaning of Article 5 (art. 5), but was the result of the exercise by the mother of custodial rights in the interests of the child.

I cannot agree with this decision, because I consider that, for the purposes of the Convention, the issue is whether the fact that a parent may legally, and without being subject to any judicial review, place a child who is in his custody in a psychiatric ward constitutes a violation of the guarantee set out in the first sentence of Article 5 para. 1 (art. 5-1).

Like Mr Frowein , in his partly concurring, partly dissenting opinion (Commission ’ s report, pp. 35-37), I think that Article 5 (art. 5) is constructed in a very clear way. The first sentence of paragraph 1 (art. 5-1) imposes a positive obligation on States to protect the freedom of persons subject to their jurisdiction by legislation and other action, while the second sentence of paragraph 1 (art. 5-1), and sub-paragraphs (a) to (f) (art. 5-1-a, art. 5-1-b, art. 5-1-c, art. 5-1-d, art. 5-1-e, art. 5-1-f), protect individuals against specific deprivations of liberty resulting from the action of the public authorities.

In the present case, I do not think that the requirements of the first sentence of Article 5 para. 1 (art. 5-1) were complied with, in view of the supervision provided for under the Danish Social Assistance Act, and the fact that the applicant ’ s admission to the psychiatric ward of the Hospital was recommended by the family doctor and approved by the Chief Physician of the psychiatric ward in the exercise of his professional duties.

In my view, the issue is not, as the majority of the Commission thought, a child ’ s right to oppose a decision of a parent with custody, but the absence in Danish law of adequate procedures for judicial review in connection with the committal of a child to a psychiatric hospital by the parent with custody, where, as in this case, the child in question is not mentally ill and there are disagreements concerning custody.

[*]  Note by the registry: The case is numbered 7/1987/130/181.  The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case's order on the list of cases and of originating applications (to the Commission) referred to the Court since its creation.

[1] para. 25 of the judgment.

[2] para. 19 of the judgment.

[3] para. 37 of the judgment.