DISSENTING OPINION OF JUDGE LEVITS

To my regret, I cannot follow the majority in finding a violation of Article 5 § 1 of the Convention.

1. I am aware that the right of personal liberty and security, enshrined in Article 5 § 1 of the Convention, ranks very high in the Convention system of human rights. Therefore, it must be examined very carefully. The limits and exceptions to this right should be interpreted narrowly.

2. Nevertheless, in examining the limits and exceptions to the right of personal liberty and security under Article 5 § 1 in the concrete case, we should also take into account the general principle of proportionality. The interests of the applicant must be weighed against those of the general public (see paragraph 59 of the present judgment). However, in weighing the competing interests of the applicant on the one hand, and those of the general public on the other, I reached in the present case a different result to that of the majority.

3. The guiding principle in weighing these interests should be the purpose of Article 5 § 1 of the Convention, namely the protection of individuals from arbitrariness through the deprivation of their liberty (see paragraph 52 of the present judgment).

4. The serious mental illness of the applicant is without doubt the reason underpinning the important public interest to keep him in the psychiatric institution for further medical treatment. This conclusion is based on the medical recommendation of the psychiatric institution where the applicant was being treated.

5. The applicant was informed of the fact that the public prosecutor had sent a request for the prolongation of the period of his placement in the psychiatric institution. After the technical mistake of misplacing the request in the archives of the Regional Court of Groningen was discovered, that court examined the request from the standpoint of the material aspects of the case and came to the conclusion that the prolongation was necessary. However, this decision of the court was taken eighty-two days later than the domestic law requires.

6. In my view, in the special circumstances of the present case the decision of the court, based on a material examination of the facts and relevant rules, to prolong the applicant’s placement in the psychiatric institution expressly for further medical treatment is of as great importance as the non-observance of a procedural rule setting a time-limit for the court’s decision. In particular, it should be considered that if the request of the public prosecutor had been submitted on time, the court’s material decision would have been the same. From the beginning, the applicant was fully informed about the prolongation procedure. His procedural rights to defend himself (in particular through counsel) have neither before, nor after the court’s material decision, been affected. The decision of the Regional Court of Groningen was in no way arbitrary. The material content of this decision is not disputed by the applicant.

7. On the other side there is the considerable interest of the general public in having the applicant’s placement in the psychiatric institution prolonged for further medical treatment.

8. The purpose of Article 5 § 1 of the Convention is to protect the individual from an arbitrary deprivation of his liberty, not to secure the observance of national statutory rules. Therefore, the non-observance of the time-limit set by the national law cannot automatically be regarded as a violation of Article 5 § 1 of the Convention. Having examined the very specific circumstances of the present case, I consider that the non-observance of the said time-limit does not constitute a violation of Article 5 § 1 of the Convention.

[1] Notes by the Registrar

. The case is numbered 89 / 1997 / 873 / 1085 . The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[2] . Rules of Court B, which came into force on 2 October 1994, apply to all cases concerning States bound by Protocol No. 9.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.