CASE OF MAGALHAES PEREIRA v. PORTUGAL
Violation of Art. 5-4;Not necessary to examine Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress
9. The applicant is a Portuguese national, born in 1940. He was a lawyer and is currently detained in the Santa Cruz do Bispo secure psychiatric unit in Matosinhos (Portugal). 10. The applicant, who was suspected of fraud, was arrested on 1 March 1996 and placed in pre-trial detention. 11. During the proceedings against him the applicant was examined by a psychiatrist. In his report of 22 July 1996 the psychiatrist concluded that the applicant was suffering from residual schizophrenia and should be given long-term psychiatric treatment. 12. In a judgment of 11 November 1996 the Oporto Criminal Court held that, on account of his mentally disturbed state, the applicant was not criminally responsible (inimputável) and was dangerous. It accordingly ordered that he be detained for a maximum period of eight years. 13. On 4 December 1996 the applicant was transferred to the Santa Cruz do Bispo secure psychiatric unit. 14. In an order of 24 January 1997 a judge of the Oporto Criminal Court decided that, in accordance with the relevant legislation, the mandatory periodic review of the applicant's detention should take place on 1 March 1998. 15. The applicant's file was transmitted to the Oporto Sentence-Supervision Court (Tribunal de Execução das Penas). On 19 February 1997 the judge of that court assigned a lawyer to represent the applicant, who had not chosen one himself. He also asked the staff of the Santo Cruz do Bispo secure unit to prepare an initial report on the applicant's condition. 16. In a letter of 19 March 1997 Dr M.S.C. informed the judge that the applicant was “clinically balanced”. He added that his behavoiur “[was] adequate and he [could] be released on probation [liberdade para prova] if he agree[d] to accept psychiatric support outside and [took] his medication”. 17. In an order of 7 April 1997 the judge decided to await the expiry of the time-limits provided for in Article 504 of the Code of Criminal Procedure. 18. On 2 July 1997 the applicant personally lodged an application for release, relying on Dr M.S.C.'s favourable opinion. On 4 July 1997 the judge marked the file as “seen” (visto). 19. On 7 January 1998 the judge asked the Institute for Social Rehabilitation, in accordance with the relevant legislation, to submit its opinion on the applicant's social situation and asked the Oporto Institute of Forensic Medicine (“the IFM”) to carry out a medical examination. 20. The Institute for Social Rehabilitation submitted its report on 18 May 1998, concluding that the applicant's circumstances were such that he could be released on probation. A medical examination was carried out on 28 April 1998. The IFM filed a report also on 18 May 1998 concluding that the applicant remained a danger to society. 21. On 2 June 1998 the applicant personally lodged a further application for release, relying on, inter alia, Article 5 § 4 of the Convention. 22. On 1 July 1998 the applicant was examined by the judge. As the applicant's officially assigned lawyer was not present, the judge appointed an officer from the Santa Cruz do Bispo secure psychiatric unit as his defence counsel. The applicant stated, among other things, that he considered himself to have recovered and that the medicines which he was still taking were unnecessary. 23. On 9 July 1998 the applicant personally lodged a further application for release. On 14 and 24 July 1998 he filed pleadings criticising the IFM's medical report. 24. On 9 November 1998 the Prison Service asked the Sentence-Supervision Court for a copy of the latest decision relating to the periodic review of the applicant's detention. On 10 November 1998 the judge indicated that no decision had yet been taken. 25. The applicant absconded during prison leave between 1 and 3 April 1999. He was captured on 11 November 1999 when the police authorities found him at his family home. 26. In a decision of 20 January 2000 the Sentence-Supervision Court decided to keep the applicant in detention. The judge based his decision on the IFM's report of 18 May 1998 first, before stressing that it was clear that the applicant, who had absconded during prison leave, was not in a position to prove himself worthy of the trust that the prison system had placed in him. Lastly, the judge considered that, on account of the applicant's mentally disturbed state, the applications for release he had lodged personally did not have to be examined. 27. The applicant personally appealed against that decision to the Oporto Court of Appeal (Tribunal da Relação). However, in an order of 4 February 2000 the judge of the Sentence-Supervision Court decided not to examine his appeal, noting that the applicant had been admitted to a secure psychiatric unit and was represented by officially assigned counsel, and that the President of the Criminal Division of the Supreme Court had delivered a decision on 5 January 2000 in habeas corpus proceedings to the effect that no other request for habeas corpus submitted by the applicant himself would be examined on account of his mentally disturbed state. 28. On an unknown date the applicant personally appealed against that order to the Court of Appeal. However, the judge of the Sentence-Supervision Court made an order on 1 March 2000 stating that he would not examine the appeal and referring to the reasons stated in his order of 4 February 2000. 29. On 8 November 2000 the applicant lodged, through Mr Pires de Lima, an application with the Oporto Court of Appeal challenging the judge of the Sentence-Supervision Court dealing with his case. In a judgment of 7 January 2001, the Oporto Court of Appeal granted his application, a new judge being appointed. 30. On 29 January 2001 the public prosecutor requested the applicant's release since he presented no further danger. In a decision of 30 January 2001 the judge dismissed that request and decided to review the situation at the next periodic review (scheduled for 20 January 2002). The public prosecutor appealed against that decision to the Oporto Court of Appeal. 31. In a judgment of 20 June 2001 the Court of Appeal dismissed the appeal. 32. The relevant provisions of the Criminal Code, as amended by Legislative Decree no. 48/95 of 15 March 1995, are as follows: “Persons suffering from a mental disorder who are incapable at the material time of appreciating the unlawful nature or the consequences of their actions shall not be held criminally responsible for those actions.” “1. A person who commits a punishable offence and who is found not to be criminally responsible within the meaning of Article 20 shall be ordered to be detained in an asylum, hospital or secure unit, if there is reason to believe, in view of his mental illness and the nature and seriousness of his offence, that he may commit further serious offences. 2. Where the offence committed by a person found not to be criminally responsible is an offence against the person or a crime punishable by more than five years' imprisonment, he shall be ordered to be detained for a minimum period of three years, save where his release is not incompatible with the protection of the legal system and public order.” “Without prejudice to the provisions of paragraph 2 of the preceding Article, detention shall cease when the court finds that the justification for the detention no longer exists because the detainee is no longer criminally dangerous.” “1. The court may at any time hear an application relying on a ground for the cessation of the detention measure. 2. The court shall, of its own motion, regardless of whether any application has been made, review the detention two years after it began or after the decision extending it. ...” 33. The Code of Criminal Procedure and Legislative Decree no. 783/76 of 29 October 1976 setting up sentence-supervision courts lay down the appropriate procedure to be followed. Articles 503 and 504 of the Code of Criminal Procedure provide: “1. A personal file shall be opened in the establishment in which the person is to be detained in which shall be registered or placed all documents received from or sent to the court together with periodic reports on the effects of the treatment on the dangerousness of the detainee. 2. The governor of the establishment shall send the periodic reports to the sentence-supervision court annually and when justified by the circumstances or requested by the court.” “1. Up until two months prior to the date scheduled for the mandatory review of the detainee's situation, the sentence-supervision court shall order (a) a psychiatric or character report, if possible in the establishment where the detainee is detained, which must be submitted to the court within thirty days; (b) of its own motion, or at the request of the public prosecutor, the detainee or the lawyer, measures likely to assist it in reaching a decision. 2. Up until the same date the social rehabilitation services shall send a report on the detainee's family and professional environment. 3. The mandatory review of the detainee's situation shall be conducted after hearing submissions from the public prosecutor, the lawyer and the detainee; the latter must be present, save where his state of health renders such hearing purposeless or impossible. ...” 34. Article 62 § 2 of the Code of Criminal Procedure, which applies as an alternative provision in proceedings before the Sentence-Supervision Court, provides – exceptionally – in urgent cases, where it is not possible to find a member or trainee member of the Bar, that the judge may officially assign an appropriate person without legal qualifications to represent the accused. In judgment no. 59/99 of 2 February 1999 (Boletim do Ministério da Justiça no. 484, p. 48), the Constitutional Court held that the appointment of a court-registry official as the accused's defence counsel did not infringe the rights of the defence, as guaranteed by Article 32 of the Constitution.