CONCURRING OPINION OF JUDGE RYSSDAL, JOINED BY JUDGE FOIGHEL

I do not agree with the Commission that this case cannot be distinguished from the Winterwerp v. the Netherlands case (judgment of 24 October 1979, Series A no. 33) and the case of X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46), where the Court concluded that Article 5 para. 4 (art. 5-4) had been violated. The applicant was remanded in custody on 21 July 1989. On 9 March 1990 he was charged with homicide and carrying an illegal weapon. On 13 July 1990 the Oporto Criminal Court found that he had committed the offences with which he was charged, but that he was not criminally responsible on account of his mental disorder. The court further held that he was dangerous, having little control over his actions, and that there was a risk that he would reoffend. In accordance with Articles 20 and 91 para. 2 of the Portuguese Criminal Code the court made a hospital order committing the applicant for a minimum period of three years to a psychiatric hospital. On 29 October 1990 the Coimbra court decided that the applicant ' s detention should be deemed to have begun on 21 July 1989, when he was first remanded in custody. On 29 June 1992 the Coimbra court extended the hospital order for nine months, referring to a medical report stating that the applicant was still dangerous. Further, at a date not specified the court dismissed the applicant ' s request of 11 February 1993 to be released; and, following a medical report of 13 April 1993 that the applicant would still be dangerous if released, the court on 3 May 1993 extended the detention for a period of two months to see how the applicant ' s state of health evolved. It follows from the facts as assessed by the competent domestic courts that the applicant ' s mental disorder and his danger to society persisted throughout the period of three years. Finally, on 9 February 1994, when the court was satisfied that the applicant was no longer dangerous to society, it ordered that he be discharged on a trial basis subject to a number of conditions including the obligation to undergo prescribed medical treatment. On the facts of this case there has in my opinion been no violation of Article 5 para. 4 (art. 5-4), and I do not consider it necessary to determine whether a detention order for a minimum period of three years in accordance with Articles 20 and 91 para. 2 of the Portuguese Criminal Code would in all circumstances be compatible with Article 5 para. 4 of the Convention (art. 5-4).

CONCURRING OPINION OF JUDGE LOPES ROCHA

(Translation)

I have joined the majority in finding that there has been no violation of Article 5 para. 4 of the Convention (art. 5-4), but I would like to add a few thoughts on the interpretation of Articles 91 para. 2, 92 para. 1 and 93 para. 3 of the Portuguese Criminal Code in force at the material time. 1. In the first place, I would refer to the underlying reasons for the minimum three-year period provided for in Article 91 para. 2. According to the analysis of criminal lawyers, the lack of a review of the detainee ' s situation (Article 93 para. 3) is justified not by the mere presumption that his dangerousness will persist over a certain time, but rather by the existence of specific reasons relating to preventing social disquiet and preserving public confidence in the law in cases of serious offences against the person or serious acts of violence. In other words, both for security measures, although not predominantly so, and for criminal sentences, a general aim of prevention is pursued and indeed is autonomous in character. As regards the purpose of criminal sanctions, there are no fundamental differences between custodial criminal sentences and security measures of detention. The distinction lies solely in the relationship between the aims of general prevention and specific prevention. As regards criminal sentences, aims of general prevention (reintegration) play the principal role, whereas the aims of specific prevention operate solely within the framework of punishment provided for by law, but with reference to guilt. For security measures, on the other hand, aims of specific prevention (social integration and security) are paramount, but not to the exclusion of considerations of general prevention (reintegration) in a form which comes close to (or is identified with) the minimum requirements of supervision of the legal system. The justification of security measures as a punitive instrument covered by penal policy is as undeniable as that of a criminal sentence. The fundamental principle underlying the imposition of security measures has always been that of the dangerousness, in other words the sine qua non of the imposition of such a measure is the danger that new offences of the same type will be committed in the future. 2. In regard to a different situation - the review of security measures, provided for in Article 102 of the Criminal Code, according to which a detention order cannot be executed if three years or more have elapsed since the relevant decision without a new assessment being made by the court, that is without the court verifying whether the dangerousness persists -, a very interesting question has already arisen, namely that of whether the reassessment requirement also applies to security measures imposed under Article 91 para. 2. A negative reply to this question could be justified by arguing that the minimum of the detention must always be accomplished to satisfy the requirements of general prevention. However, this argument is not persuasive. In essence, although the scheme of Article 91 para. 2 embraces aims of positive general prevention, it remains the case that the principal purpose and justification relate to the dangerousness of the person concerned and the need to protect society from that danger. To take a different view would amount to replacing arbitrarily a security measure by a criminal sentence, which is not possible once a person has been found not to be criminally responsible. The conclusion that Article 93 para. 3 (see paragraph 19 of the judgment) requires that the minimum three-year period of detention must be complied with in all circumstances is unacceptable. Legal writers have found that solution not to be justified from whatever point of view (textual or teleological interpretation or from that of penal policy). Moreover it is a solution which is based on a serious misunderstanding: Article 93 para. 2 implies a presumption not of the duration of the dangerousness, but of the dangerousness itself. On the contrary, according to Article 91 para. 2 such a measure is imposed only if there is reason to believe that the person will commit further similar offences of the same degree of seriousness. It follows that even in this situation there is room for an separate verification of the persistence of dangerousness, which proves that, even here, the review is fully justified as for every other type of detention. In conclusion, even for detention measures imposed under Article 91 para. 2, the review is wholly justified. What has just been said is the opinion of Professor Figueiredo Dias of Coimbra University, a law professor of international repute who was member and then president of the commissions for the revision of the Portuguese Criminal Code, including the most recent commission whose recommendations formed the basis for the amendments introduced by Legislative Decree no. 48/95 of 15 March 1995 (see his recent work, Portuguese criminal law - The legal consequences of crime (pp. 414-90). I fully and unreservedly share this opinion. 3. Clearly the new wording of Article 91 of the Code introduced by Legislative Decree no. 48/95 of 15 March 1995 has merely confirmed the view that reasons of proportionality and necessity explain the imposition of the three-year minimum period for serious offences, such as homicide, which is punishable by a criminal sentence of from eight to sixteen years. Moreover, the Sentence Supervision Court, by deciding, when it assessed the applicant ' s situation after the expiry of the three-year period (in which the period of detention on remand was included), to prolong the measure until a later review, confirmed that the initial period was fully justified on the facts and not only on technical grounds. Finally, in regard to the wording of Article 5 para. 4 of the Convention (art. 5-4) and as the Government pointed out in their memorial and at the hearing, the applicant was not totally deprived of the right to take proceedings before a court - here the Supreme Court - by which the lawfulness of his detention could be decided speedily and his release ordered if the detention was not lawful. He had available to him the special habeas corpus procedure, provided for and governed by the Code of Criminal Procedure. It cannot be assumed in advance that such a step would have no chance of success. Let us adopt, for example, a reasoning based on the coherence of the system, taking into account what has been said above in connection with the review procedure provided for in Article 102 of the Criminal Code, as interpreted by legal writers. The conclusion must be that the review covers even the case of a measure imposed under Article 91 para. 2 (minimum three-year period).

DISSENTING OPINION OF JUDGE PETTITI, JOINED BY JUDGES RUSSO AND VALTICOS

(Translation)

I voted for a violation of Article 5 para. 4 of the Convention (art. 5-4) for the following reasons: The applicant ' s complaint called into question the legislation concerning the detention of persons declared not to be criminally responsible (Articles 20, 91 et seq. of the Criminal Code). At the hearing before the European Court , counsel for the Government expressly stated: "If the offender is no longer dangerous within the period of three years, the judge cannot release the offender. He must remain in detention for a minimum of three years. That is the answer, and because of that you have paragraph 3 of Article 93. So, he must be detained, and as I have explained, this is because of general deterrence reasons." The minimum period of detention is therefore indeed three years. There is consequently in the Portuguese system a punitive element and aim of general prevention which, in my view, cannot be applied to a person who is found by the courts not to be criminally responsible. Under the terms of Article 5 para. 4 (art. 5-4) it is accordingly necessary that during the period of detention it should be possible to have the lawfulness of that detention actually determined by a court. Current thinking in criminology and the work of the United Nations and the Council of Europe follow this approach. The problems engendered by legislation based on dangerousness and which makes an abusive use of detention are well known. It is for that reason that the judicial review within the three-year period is necessary when the person has been acknowledged to be cured and the cause of his detention ceases. The review procedures followed in this case were limited by the provisions of Article 93 para. 3 of the Criminal Code. The date of release is not therefore a relevant argument. The case of Silva Rocha is different from that of X v. the United Kingdom (judgment of 5 November 1981, Series A no. 46). The cases of Hussain v. the United Kingdom (judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I) and Singh v. the United Kingdom (judgment of 21 February 1996, Reports 1996-I) do not concern persons found not to be criminally responsible. The review of the lawfulness of detention on grounds of mental disorder is a separate matter and cannot be regarded as being incorporated in the initial decision for the purposes of Article 5 (art. 5). The preventive element cannot be incorporated where the non-criminally responsible person is cured. European legal writing in this field generally criticises legislation which makes provision for fixed periods during which no judicial review is available (see G. Williams, Text Book of Criminal Law, 1983; B. Bouloc, Pénologie, 1991; P. Murphy (Ed.), Blackstone ' s Criminal Practice, 1994). These considerations led me to vote for a violation of Article 5 para. 4 (art. 5-4) in the present state of the legislation, even if in practice the courts seek to provide a solution to this problem.

[1] The case is numbered 82/1995/588/674.  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 A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol (P9).  They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.

[3] For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1996-V), but a copy of the Commission's report is obtainable from the registry.