CONCURRING OPINION OF JUDGE LAGERGREN

Whilst I share the opinion of the majority of the Court, I wish to add some short remarks.

In its judgment, the Court has left open the contested issue of the applicability of Article 6 para. 1 (art. 6-1) (paragraph 54). It has, however, discussed the circumstances and manner in which section 141 of the 1959 Act was actually applied to Mr. Ashingdane (paragraph 59). For that purpose, the Court has assumed that a "right" is conferred on the individual citizen by section 3 of the 1977 Act.

In my view, the applicability of Article 6 para. 1 (art. 6-1) does not depend on whether an asserted "privilege or interest" is classified or described by the domestic system as a "civil right" or a "right" at all. For the purposes of Article 6 para. 1 (art. 6-1), the two latter concepts are both "autonomous"; they must be defined in the light of their substantive content, of the object and purpose of the Convention and of the national legal systems of all Contracting States. Otherwise, the question of the applicability of Article 6 para. 1 (art. 6-1) could in relation to one and the same factual situation be determined differently in different Contracting States and, moreover, a State would be enabled, with a view to excluding the guarantees of Article 6 para. 1 (art. 6-1), to change legal classifications so as to remove the jurisdiction of its courts in a certain field. An "autonomous" interpretation of the concepts contained in the Convention means in reality a uniform interpretation, resulting, in the words of the Preamble to the Convention, in "a common understanding and observance of the human rights" protected.

Furthermore, it is often stated that the existence of a "right" presupposes a "right to sue". However, if Article 6 para. 1 (art. 6-1) is applicable only where there is already a remedy, a right to sue, then the area of Article 6 para. 1 (art. 6-1) would be rather restricted.

The approach I have attempted to indicate in this opinion would indeed amount to a fulfilment of the maxim die normative Kraft des Faktischen .

(References: the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-18, paragraphs 34-36; the Oztürk judgment of 21 February 1984, Series A no. 73, pp. 17-18, paragraph 49; and Kaplan v. the United Kingdom, application no. 7598/76, report of the Commission, 17 July 1980, paragraphs 134, 162 and 164, 21 DR 25 and 32-33 (1981)).

DISSENTING OPINION OF JUDGE PETTITI

(Translation)

I concur with my colleagues that there was no violation of Article 5 para. 4 (art. 5-4), but I part ways with them as far as Article 5 para. 1 and Article 6 (art. 5-1, art. 6) are concerned.

As regards Article 5 para. 1 (art. 5-1), the applicant ’ s contention was to the effect that this provision should apply not only to the detention but also to the actual conditions under which the individual is held in detention.

In the opinion of the Court, the deprivation of liberty resulting from the confinement was clearly not arbitrary and was in accordance with the law and with the judgment of 23 November 1970 :

"Certainly, the ‘ lawfulness ’ of any detention is required in respect of both the ordering and the execution of the measure depriving the individual of his liberty. Such ‘ lawfulness ’ presupposes conformity with domestic law in the first place and also, as confirmed by Article 18 (art. 18), conformity with the purposes of the restrictions permitted by Article 5 para. 1 (art. 5-1). More generally, it follows from the very aim of Article 5 para. 1 (art. 5-1) that no detention that is arbitrary can ever be regarded as ‘ lawful ’ .... The Court would further accept that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the ‘ detention ’ of a person as a mental health patient will only be ‘ lawful ’ for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution authorised for that purpose. However, subject to the foregoing, Article 5 para. 1 (e) (art. 5-1-e) is not in principle concerned with suitable treatment or conditions ...." (paragraph 44)

But,

"On the evidence adduced, the Court ha[d] no cause for finding that the applicant ’ s deprivation of liberty as a person of unsound mind during the contested period was ‘ unlawful ’ in the sense of not being in accordance with the relevant domestic law" (paragraph 45).

According to the Court, since the deprivation of liberty was "lawful" it had to be determined under paragraph 1 (e) (art. 5-1-e) whether the maintenance in detention had remained lawful, notwithstanding the refusal to transfer.

The Court was satisfied that at all times the purpose of the contested confinement had related to the patient ’ s mental illness, and that the continued detention had not been arbitrary or effected for an ulterior purpose.

To my mind, this approach raises two queries:

(1) firstly, does the designation of the institution as an "appropriate institution" by the responsible authorities in accordance with the domestic law suffice to allow the maintenance in detention to be considered as "lawful" within the meaning of the autonomous interpretation that the Court gives to Article 5 para. 1 (art. 5-1)?

(2) secondly, does the statement that the continued detention at Broadmoor was the only practicable course of action and was neither arbitrary nor effected for an ulterior purpose suffice to remove any issue under Article 5 para. 1 (art. 5-1)?

These matters are all the more open to query since it is established and uncontested by the Government that

(1) the reason for the failure to transfer from Broadmoor to Oakwood was the threatened withdrawal of labour by the nursing staff at Oakwood, who were operating a ban on the admission of restricted patients subject to a section 65 order; it was not the interests of the patient but considerations of governmental convenience which prompted the decision ;

(2) the transfer to Oakwood was necessary on medical grounds and would have been beneficial for the patient, as was subsequently borne out by the fact that the stay at Oakwood, even though postponed until 1 October 1980 , contributed to an appreciable improvement in the state of Mr. Ashingdane ’ s mental health.

The diagnosis of Dr. Maguire was quite unambiguous:

" i . ... transfer from Broadmoor for further treatment and rehabilitation in a local psychiatric hospital is an essential step in the plaintiff ’ s ... recovery.

ii. The disappointment at his rejection by Oakwood Hospital has made him tense and irritable. But more seriously, one of his former delusional beliefs was to the effect that hospital authorities were persecuting him by continuing to detain him illegally. This delusion cleared when he gained some measure of insight. I fear that continued undue detention here will reactivate this to delusional intensity again and thus precipitate full-scale relapse.

iii. His present mental condition remains reasonably stable and in my opinion he is suitable for transfer to Oakwood Hospital ." (paragraph 20)

Dr. Sherry confirmed this diagnosis in his report of March 1980:

"Although not overtly psychotic this man remains paranoid and I feel that his continued detention in Broadmoor is having an adverse effect on his mental health, i.e. it is making him even more paranoid. His drawn-out involvement with the High Court can only aggravate this paranoia and further constrict his outlook."

Dr. Sherry recommended that the patient was not fit to return to the community but that it should be possible to treat him in an ordinary psychiatric hospital with a closed ward. It was unlikely that he would have to remain in such a closed ward for more than a year. The doctor was satisfied that he could be managed at Oakwood (paragraph 20).

It would not appear to me that, faced with this medical requirement, the responsible authorities investigated all the possible courses of action to enable the appropriate treatment. Oakwood was not the only institution of its kind. Furthermore, the Government are responsible for organisation of the health system as they are for administration of the prisons and they cannot shelter behind the mere threat of a strike or an industrial dispute.

At this stage, the field of application of Article 5 para. 1 (art. 5-1) within the meaning of the Court ’ s autonomous interpretation might conveniently be considered. For example, under ordinary prison law, could a court-ordered detention be regarded as remaining lawful if the prisoner, instead of being held in a penal institution suitable for execution of the sentence imposed, were placed in one reserved for those serving sentences of life imprisonment with hard labour ( peines de réclusion perpétuelle ) or permanently kept in a "punishment" or "sensory deprivation" cell inside the prison? This is not what occurred in the case referred to the Court, which may perhaps be called on in the future to rule on an issue of that kind.

In any event, one cannot reason by analogy between imprisonment and confinement as a mental patient, the issues of public policy involved being quite different. The purpose of commitment of mental patients is to treat them with a view to curing them as well as to protect others against patients who are genuinely dangerous. The task and duty of the executive are thus, above all else, to co-operate in the medical treatment and to strive after the means most likely to bring about a cure, independently of the needs of industrial policy. This is why I am of the view that for a period of a few months the applicant ’ s continued detention at Broadmoor ceased to be "lawful" within the meaning of Article 5 para. 1 (art. 5-1), notwithstanding that on the facts there was no improper or ulterior purpose pursued by the responsible authorities - although Article 5 (art. 5) does not make violation conditional upon the existence of such a purpose. The British Government, moreover, were very honest in acknowledging that Mr. Ashingdane had been placed in a serious predicament and at the public hearings they expressed their sympathy at his plight.

As far as Article 6 para. 1 (art. 6-1) is concerned, having regard to the nature of the claims made it would be open to criticism to refuse to recognise that a civil right or obligation was in issue.

The Court adopted another approach; it did not settle the controversy since it held that, even assuming the provision to be applicable to the facts of the case, Article 6 para. 1 (art. 6-1) had not been violated.

In my view, the Court could not have employed reasoning similar to that of the Commission, as the Commission arrived at a conclusion of inapplicability.

The Court found as follows:

"The applicant did have access to the High Court and then to the Court of Appeal, only to be told that his actions were barred by operation of law .... To this extent, he thus had access to the remedies that existed within the domestic system." (paragraph 56)

"This of itself does not necessarily exhaust the requirements of Article 6 para. 1 (art. 6-1). It must be still be established that the degree of access afforded under the national legislation was sufficient to secure the individual ’ s ‘ right to a court ’ , having regard to the rule of law in a democratic society ...." (paragraph 57)

For the Court, there had been no violation of Article 6 para. 1 (art. 6-1). The first question that arises is: was Article 6 para. 1 (art. 6-1) applicable? Were civil rights and obligations in issue?

In the applicant ’ s submission, his action sought to assert a right that was civil in the autonomous sense of the Convention and not only according to the definition of domestic law.

The Commission ’ s analysis of the nature of the action was as follows:

"The applicant maintains that his proceedings against the authorities involved the determination of a dispute concerning a ‘ civil right ’ under Article 6 para. 1 (art. 6-1). The substance of his claim was that the defendants owed him a statutory duty, that they had broken it and that he had suffered, or would suffer, loss or damage as a result. Clearly, in the applicant ’ s submission, a person has a right of action for damages if in breach of statute he is given inappropriate, or no, medical treatment or supervision. The same is the case in respect of psychiatric treatment. Breach of statutory duty in English law gives rise to a private-law right.

The applicant rejects the Government ’ s argument that the National Health Service Act did not confer any civil right on him. Although the duty under it was held to be limited according to the availability of resources, in his case the necessary resources were admittedly available. He also rejects their submission that his liberty was not at issue. In so far as he was required in practice to pass through a local psychiatric hospital prior to release, the failure to transfer him delayed his eventual release." (Commission ’ s admissibility decision - report, p. 46)

The Commission, at the end of the day, took the view that the applicant ’ s claim of a breach of statutory duty was not a civil right whose determination required a fair trial (report, paragraph 96).

But was there an effective right to a court in view of the fact that the action was doomed to failure? The Commission noted that the claim arose out of the inability, and hence refusal, of the Secretary of State and the Health Authority to transfer the applicant from a secure mental hospital to a normal one because of industrial action by nursing staff. The applicant should, however, have sought prior leave to bring this claim, in accordance with section 141 (2) of the Mental Health Act 1959. Nevertheless, the High Court and the Court of Appeal let it be understood clearly in their respective judgments of 15 January and 28 February 1980 that such leave would not have been granted, as section 141 (1) provided immunity from liability to any such proceedings for any person purporting to act in pursuance of the 1959 Act unless the act in question were done in bad faith or without reasonable care (report, paragraph 90).

In view of this (certain) dismissal of his action, Mr. Ashingdane was in reality deprived of the means of obtaining redress; provided that his action related to a civil right - which is not excluded by the Court ’ s judgment -, Mr. Ashingdane was thus entitled to complain of a violation of Article 6 (art. 6).

The Dyer application (no. 10475/83) and the Pinder application (no. 10096/82), considered by the Commission, are significant. The Government justified the barring of the applicants ’ access to the courts to claim damages (instead of a pension), relying on a domestic statute which conferred on the State an immunity from liability in tort owed towards members of the armed forces while on duty (section 10 of the Crown Proceedings Act 1947):

"Under section 10, however, members of the Armed Forces and the Crown as their employer are exempt from liability in tort in respect of death or any injury suffered by another member of the Armed Forces, if, at the time he suffers death or injury, he is either on duty or, though not on duty, is on any land, premises, ship, aircraft or vehicle being used for the time being for the purposes of the Armed Forces of the Crown. The Crown is also exempt from liability for death or personal injury suffered by a member of the Armed Forces resulting from the nature or condition of any land, premises, ship, aircraft, vehicle, equipment or supplies being used for the time being for the purposes of the Armed Forces." (Commission ’ s admissibility decision of 9 October 1984 in the Dyer case, to be published in Decisions and Reports)

The Commission declared the application inadmissible; it took particularly into account the special service relationship that exists between members of the armed forces and considered that the scheme created under the 1947 Act came within the special sphere of the pensions system. No violation of Article 6 (art. 6) was found.

In Mr. Ashingdane ’ s case, however, the potential plaintiff was a civilian and in relation to his claim there was no question of the grant of a pension.

The question of the "objective liability" (" responsabilité objective") of the State for the acts of public servants, including acts committed without fault, also lay at the centre of the Ashingdane case as regards the issue under Article 6 (art. 6). Whilst the member States of the Council of Europe admittedly possess very diverse laws and systems in this sphere, Article 6 (art. 6) must be applied in its autonomous meaning as far as civil rights and obligations, in particular, are concerned.

I entirely agree with the reasoning of the Court when it recognises that the State may lawfully make available immunities to certain categories of public servants on account of their special position and the need to grant them special protection (nursing staff in psychiatric hospitals, for example).

The scope of section 141 of the 1955 Act was, however, much wider. It might be convenient to cite its exact wording:

"1. No person shall be liable ... to any civil .... proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act ..., unless the act was done in bad faith or without reasonable care.

2. No civil ... proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and the High Court shall not give leave under this section unless satisfied that there is substantial ground for the contention that the person to be proceeded against has acted in bad faith or without reasonable care." (see paragraph 17 of the judgment)

To take an extreme example, the driver of a coach transporting nursing assistants or patients who is responsible for a traffic accident without manifest negligence on his part would benefit from the immunity granted and the victims would not be able to bring effective proceedings in tort against the State.

Section 141 is to be compared with the provisions in the law of the United Kingdom concerning members of the armed forces. To concede that it may be necessary to provide a certain protection against unfair harassment by litigation, thereby justifying a degree of immunity in favour of medical staff, leaves entirely open the other aspect of the issue under Article 6 (art. 6), that is to say, the protection of victims through the making available of a judicial remedy against the State for the recovery of reparation for damage sustained.

A clearer distinction ought to have been drawn between the two areas, namely that of the restrictions authorised by the State for the benefit of medical staff and that of the entitlement to reparation by means of a fair trial.

Viewed in the light of these considerations, the restrictions implemented by the State in the 1959 Act did not respect the principle of proportionality, as the actions brought by Mr. Ashingdane constituted neither harassment of the medical staff nor an abuse of the process of the domestic courts.

Accordingly, it would appear to me that Article 6 (art. 6) must be regarded as having been applicable and as having been violated, especially since the Court found no breach of Article 5 para. 1 (art. 5-1). Mr. Ashingdane had unquestionably suffered a prejudice, as the Government conceded; he was, in my judgment, entitled to have his claims effectively determined on their merits in judicial proceedings satisfying the requirements of Article 6 (art. 6).

The making available of such possibilities is all the more essential in the case of mental patients, who should be accorded the highest degree of protection.

In the instant case, any fear of the medical staff at Oakwood being exposed to unreasonable, abusive litigation on the part of Mr. Ashingdane was unwarranted. Mr. Ashingdane ’ s conduct was not abusive; his claims were serious ones.

During the course of the domestic litigation, Lord Justice Bridge stated, inter alia, that if the responsible authority was acting in good faith in what it believed to be the proper manner of discharging its statutory responsibilities, the fact that it may have been acting in a way which contravened the statute to the point of frustrating its policy and objects, could not lead to the conclusion that the original acts in good faith were not in purported pursuance of the Act. Adopting the view expressed by Mr. Justice Dillon, he considered that section 141 (1) of the 1959 Act propounded a subjective not an objective test. "If a person is acting honestly with the intention of performing, in the best way he knows how, the statutory functions or duties which are cast upon him, then it seems to me he is acting in purported pursuance of the statute." Although Mr. Ashingdane alleged a breach of statutory duty under section 3 of the National Health Service Act 1977 to provide hospital accommodation to meet all reasonable requirements, the essential act out of which liability was said to arise was the refusal of transfer, which fell within the protection of section 141 (see paragraph 18 of the Court ’ s judgment).

The immunity under domestic law was thus given a wide interpretation and the act capable of engaging the liability of the authorities was likewise held by the British courts to be covered by section 141.

Any effective remedy against the staff or against the authorities was thereby barred under domestic law; British legislation happily rectified this in 1983.

It appears difficult to me to consider that section 141 did not qualify section 3 of the 1977 Act as such. Mr. Ashingdane ’ s claims were multiple and not limited to one sole objective. In any event, the principal act out of which was alleged to arise the liability of the authorities, independently of the liability of the medical staff, ought to have been capable, under domestic law, of being the subject of a judicial remedy allowing effective access to the courts. This possibility did not exist in the circumstances, thereby impairing, in my view, the very essence of Mr. Ashingdane ’ s right within the meaning of the autonomous interpretation of Article 6 (art. 6).

[*]  Note by the Registrar: The case is numbered 14/1983/70/106. 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.