Silva Rocha v. Portugal

Application No. 82/1995/588/674
Download Judgment: English

Silva Rocha (S) was remanded in custody after a dispute with a neighbor following which the latter died. He was committed for trial on charges of aggravated homicide and illegal possession of weapons and the criminal court found in July 1990 that the established facts constituted these offences. However, it concluded from the medical evidence that S was a dangerous person who could not be held responsible for his actions and that a security measure must be taken against him. It ordered that he be detained for a minimum period of three years (the minimum permitted) and he was transferred to the annex for the criminally insane in a psychiatric hospital.

A supervision court subsequently decided that his detention should be deemed to have begun when he was first remanded in custody (July 1989) and that the automatic review of his detention should, therefore, commence in March 1992. It also assigned a lawyer to act for him as he had not designated one and appointed another lawyer in March 1992. This court, on the basis of a medical report and a social services opinion, extended S’s detention in June 1992 for nine months. An application by S in February 1993 for conditional discharge was dismissed on an unspecified date on the ground that his discharge could only be ordered on a trial basis and not conditionally.

S’s officially assigned lawyer did not respond to a medical report in March 1993 that S was no longer dangerous in a hospital environment but would still be dangerous if released into the outside world. In May 1993, after hearing from senior hospital officials, the court extended S’s detention for two months to see how his state of health evolved. The hospital submitted a report in September 1993 at the court’s request which stated that S had ceased to be dangerous and could be successfully reintegrated into society. The court, having heard S, his officially-appointed lawyer and the public prosecutor, decided in February 1994 to order that he be discharged on a trial basis, subject to conditions about his residence and medical treatment, a prohibition on consuming alcohol and his supervision by the social reintegration service.

S left the hospital in March 1994 and has since remained at liberty on a trial basis. The criminal code provided that persons detained because they were not criminally responsible could apply to a court at any time for the cessation of the detention measure and it had to be reviewed of its own motion three years after it began and two years after a decision extending it. Since 1995 the initial review had to be two years after the detention began. S complained about the lack of judicial review of the measure under which he was detained, the lawfulness of his detention and the medical treatment received during it.

The Commission, considering only the first complaint admissible, found (25-3) a breach of Art 5(4).

[Adapted from INTERIGHTS summary, with permission]

The Court held:

(1) that, as the criminal court had found the established facts to constitute the offences of which S had been accused and had ordered his detention in a psychiatric institution because he could not be held criminally responsible for them but was dangerous, he was being lawfully detained pursuant to both the decision of a competent court and a security measure taken in relation to a person of unsound mind within the meaning of Art 5(a) and (e) respectively;

(2) that the seriousness of the offence, together with the risk that S represented for himself as well as others, could reasonably justify his being removed from society for at least three years;

(3) that for that period the review required by Art 5(4) was incorporated in the detention decision taken in this instance by the criminal court and that, although the domestic law provided for a periodic and automatic judicial review after two years once the detention measure had been extended and allowed an application at any moment by the detained person to have the detention measure lifted, it was not until the three years had elapsed that S’s right to take proceedings for the detention’s lawfulness to be decided by a court at reasonable intervals took effect;

(4) that the intervals between the different reviews after March 1992 were not excessive and S was discharged as soon as he had ceased to be regarded as dangerous; and

(5) (6-3) that, as S had the possibility of having the lawfulness of his detention reviewed at reasonable intervals, there was no violation of Art 5(4).


[Adapted from INTERIGHTS summary, with permission]

"26. The case involved a homicide committed by a person who could not be held responsible for his actions and who was at the same time dangerous. The seriousness of the offences together with the risk that he represented for himself as well as for others could reasonably justify his being removed from society for at least three years." Para 26

"31. . . .The Court considers that the intervals between the different reviews were not excessive. It notes that Mr Silva Rocha was discharged as soon as he had ceased to be regarded as dangerous.
32. In conclusion, the Court finds that the applicant had the possibility of having the lawfulness of his detention reviewed at reasonable intervals and that there has therefore been no violation of Article 5 para. 4 of the Convention (art. 5-4)." Para 31-32

INTERIGHTS Comment: The conclusion that there was a dual basis for S’s detention was essential for the majority view that S’s detention was not inconsistent with the Court’s previous rulings in Winterwerp v The Netherlands (Ser A No 33) and X v United Kingdom (Ser A No 46) that the need to detain someone because of the risk that he or she posed to society should be kept under review. This might have been the conclusion about automatic detention for three years of a person found to be dangerous. Such a person ought to be released if there were no longer circumstances justifying it. However, by concluding that the detention was also based on the domestic court’s finding that S’s actions constituted the facts of an offence, the Court could find that no review was required for the duration of the ‘sentence’. This overlooks the fact that there was actually no conviction which is a specific element of Art 5(1)(a) and that there was in fact a finding that S was not criminally responsible. Judges Pettiti, Russo and Valticos dissented, taking the view that the mandatory period of detention embodied a punitive element and had the aim of general prevention, neither of which were applicable to someone who had been found not to be criminally responsible. Judges Ryssdal and Foighel in a concurring opinion laid emphasis on the fact that S’s detention was justified in fact given that he was a danger throughout the first three years and was released when he was no longer dangerous; this may mean that no compensation was required but does not mean that an earlier review was not appropriate. Judge Lopes Rocha’s concurring opinion suggested that the Portuguese provision was not absolute, i.e., a release earlier than three years was possible if a person was no longer dangerous, but does not deal with the apparent absence of a judicial determination of this. The adequacy of the periodicity of the reviews after the three years was not open to question.