CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 29 novembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 25527/94                       by A.R.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 29 November 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 27 September 1994 by A.R. against the United Kingdom and registered on 3 November 1994 under file No. 25527/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1948 and resident in Doetinchem, the Netherlands. The applicant is represented before the Commission by Arnoud Willems, a lawyer practising in Amsterdam.        The facts as submitted by the applicant may be summarised as follows.        In October 1964, the applicant, then aged 15, was convicted of manslaughter. The Court ordered his detention in Broadmoor Hospital, being satisfied that he was suffering from a psychopathic disorder which warranted detention in a hospital for medical reasons. The hospital order was combined with a restriction order without limit of time.        In 1967, the applicant was again convicted of manslaughter and the Court repeated the same orders.        In 1978, in light of the applicant's steady progress, Dr. U., the medical officer responsible for the applicant submitted a recommendation for his conditional discharge, which was supported by a psychologist. The Home Office rejected the recommendation.        In 1979, Dr. U. repeated his recommendation, which was supported by the psychology department at Broadmoor and the nursing staff. The Home Office delayed its decision until a Mental Health Tribunal had considered the case.        In 1980, the Medical Health Review Tribunal found that the applicant was still potentially a danger to the public and recommended no discharge. The Home Office rejected the conditional discharge recommendation of Dr. U. which was communicated to the applicant in July 1981.        On 9 August 1981, the applicant escaped from Broadmoor and went to Amsterdam where he lived for a year.        On 6 August 1982, he was arrested and subsequently convicted of manslaughter. Without ordering his admission to hospital, the regional Court of Amsterdam sentenced him to fifteen years' imprisonment. Pursuant to the relevant rules, the applicant was due for release on 5 August 1992.        In June 1992, the Home Office requested the Dutch Government to extradite the applicant for the purpose of the execution of the hospital and restriction orders which were still in force.        The request was withdrawn however before the regional Court of Assen could decide upon it, in order to avoid a protracted extradition procedure and to make possible a speedy deportation of the applicant to the United Kingdom by the Dutch authorities.        On 14 August 1992, the President of the Regional Court of The Hague laid an injunction on the Dutch Government not to deport the applicant, on the view that such deportation would be a disguised extradition. The injunction was discharged by the Hague Court of Appeal on 16 September 1993.        The applicant appealed to the Supreme Court which on 18 November 1994 upheld the decision of the Court of Appeal that the expulsion of the applicant would not be unjust.        The applicant's solicitors wrote to the Home Office on 23 April 1992 referring to a significant body of evidence that the applicant was no longer suffering from mental disorder or illness and requesting that the Home Office refer the applicant's case of a Mental Health Review Tribunal under section 71(1) of the Mental Health Act 1983. Their view was that such a review was necessary in order to establish valid grounds for continuing to seek the applicant's extradition. Alternatively, they suggested that the hospital order be discharged by the Home Office.        In its reply of 14 July 1992, the Home Office took the view that the applicant was an absconder from hospital, continued to be subject to valid hospital orders and if he considered that he was no longer suffering from a mental illness he could apply to a Mental Health Review Tribunal on his return to the United Kingdom.        There was further correspondence between the applicant's solicitors and the Home Office, but the latter refused to refer the case to a Mental Health Review Tribunal prior to the applicant's return to the United Kingdom. The Home Office had been sent evidence relating to the applicant's mental health from psychiatrists who concluded that the applicant was not suffering from mental disorder and was able to live in the community without being a danger.        A report dated 30 June 1992 compiled by Dr. G., the director of medical services at Broadmoor Hospital, who had examined the applicant previous to his absconding, stated:        "A.R. still suffers from a vulnerability to stress which would      lead to a relapse of psychopathic disorder, that as such he      remains a potential danger to the public, that he is likely if      returned to a psychiatric hospital in England to prove      untreatable, that if returned to a psychiatric hospital in      England that this would need to be a Special Hospital and that      the reasons for this would be on grounds of public safety, but      that his own best chance of maximal recovery of his health is      likely to be that he be allowed to remain in Holland."        From 5 August 1992 until September 1993, the applicant lived normally in the community, finding accommodation, living with a partner and finding employment. He did not require to apply for social security benefits and a Dutch probation officer decided that the applicant required no assistance.        After September 1993, the applicant went into hiding to avoid deportation to the United Kingdom.        The applicant's legal representatives made representations to the Home Office in the United Kingdom submitting that there was evidence that the applicant was no longer suffering from a mental disorder and that the Home Secretary should exercise his power under section 71(1) of the Mental Health Act 1983 to refer the applicant's case to a Mental Health Review Tribunal. By letter dated 22 July 1994, the Home Office replied:        "We have considered <the applicant's> case in the light of your      representations. We remain of the view that <the applicant> must      return to lawful custody in Broadmoor Hospital and that following      his return a full assessment of his mental state must be made,      before any consideration of his liability to be detained in      hospital can take place. For this reason we are not prepared to      refer his case to a Mental Health Review Tribunal. Moreover it      is our view that there is no provision in the Mental Health Act      1983 for patients who are neither currently detained in hospital,      or conditionally discharged in the community, to have their case      so reviewed. <The applicant> would, however, on his return to      hospital, have an immediate right to apply to the Tribunal for      his detention to be reviewed..."   COMPLAINTS        The applicant submits that he should not be required to return to detention before an independent judge has examined the legality of the hospital and restriction orders of 1964 and 1967, having regard in particular to all the psychiatric reports, which, with the exception of that of Dr. G., are of the opinion that the applicant is no longer a danger to the public. Since the hospital and restriction orders are still in force, the applicant submits that his liberty is limited. The continuation of the orders requires, pursuant to Article 5 para. 1 (e), that there is objectively valid evidence of actually continuing mental disorder, which is not available.        The applicant also invokes Article 6 and 13 of the Convention, in that he is denied access to a tribunal when the continued existence of the hospital and restriction orders affect his "civil rights" and status.   THE LAW   1.    The applicant complains under Article 5 para. 1 (e) (Art. 5-1-e) that he should not be required to return to detention in the United Kingdom before an independent judge has examined the legality of the hospital and restriction orders pursuant to which his liberty is limited.        Article 5 para. 1 (e) (Art. 5-1-e) provides:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:              e.     the lawful detention of persons for the prevention of            the spreading of infectious diseases, of persons of unsound            mind, alcoholics or drug addicts or vagrants..."        The Commission recalls that the case-law of the Convention organs establishes that for detention on grounds of mental illness to be compatible with the above provision the existence of a medical disorder must be established by objective medical expertise, the disorder must be of such a kind or degree as to necessitate compulsory confinement and the validity of continued confinement depends on the persistence of such a disorder (see Winterwerp judgment of 24.10.79, Series A no. 33 p. 18 para. 39).        In the present case the Commission notes that the applicant is not in fact in detention pursuant to the hospital restriction orders, following his escape from the United Kingdom to the Netherlands where he is now in hiding to evade deportation. As regards the hospital and restriction orders in question, the Commission finds no indication that they were not issued in accordance with a procedure prescribed by law or based on the proved existence of a mental disorder requiring such confinement. The Commission recalls however that the applicant claims that he no longer suffers from such a mental disorder and that he has medical evidence to support this.        The Commission considers that the applicant may claim under Article 5 para. 1 (e) (Art. 5-1-e) that the compatibility of any further detention under the hospital orders which date from 1964 and 1967 must be justified by the continuance of a mental disorder requiring such detention. However it is apparent that he would have the right to receive such a review of detention by a Mental Health Tribunal if he returned to the United Kingdom. It is not argued by the applicant that the tribunal would not furnish the proper review of his current medical status.        In these circumstances, to the extent that the applicant who is living in the Netherlands, can claim to be a victim of deprivation of liberty by virtue of hospital and restriction orders in existence in the United Kingdom, the Commission finds that the refusal of the United Kingdom authorities to grant a review of his case prior to his return does not disclose a violation of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.   2.    The applicant complains also that his status as a patient subject to the hospital and restriction orders is a matter concerning his civil rights and that he is being denied access to the Mental Health Tribunal for the purposes of determining his rights. He invokes Article 6 para. 1 (Art. 6-1) of the Convention which provides in its first sentence:        "In the determination of his civil rights and obligations or of      any criminal charge against him, everyone is entitled to a fair      and public hearing within a reasonable time by an independent and      impartial tribunal established by law...."        According to the Commission's case-law however, proceedings regarding a person's detention in a psychiatric hospital do not as such concern the determination of that person's "civil rights and obligations" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention unless it is found that the detention had indirect effects on the detained persons right to administer his property or to carry out legal transactions (see eg. Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8, p. 43, para. 23 and the Winterwerp judgment of 24 October 1979, Series A no. 33, p. 28, para. 73 and the Wassink case, Comm. Report 12.7.89, para. 64, Eur. Court H.R., Series A no. 185, p. 27-28 para. 64).        The Commission finds no indication in the present case that the applicant has suffered effects in his ability to administer his property and considers that the proceedings in question would not involve the determination of any of the applicant's civil rights and obligations within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. It follows that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention.   3.    The applicant finally invokes Article 13 (Art. 13) of the Convention as regards the refusal to allow his case to go before the Mental Health Tribunal prior to his return to the United Kingdom.         Article 13 (Art. 13) of the Convention provides that :        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Commission notes that generally as regards complaints under Article 5 (Art. 5), Article 5 para. 4 (Art. 5-4) is the lex specialis in respect of access to a procedure seeking release. Since however the applicant has absconded and is at liberty, Article 5 para. 4 (Art. 5-4) is not applicable and the Commission has had regard to Article 13 (Art. 13) of the Convention. In this context, the Commission recalls that Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para. 52).        The Commission finds that the applicant cannot be said, in light of its findings above under Article 5 para. 1 (e) (Art. 5-1-e) to have an "arguable claim" of a violation of his Convention rights.        It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)