The applicant was tried on charges of aggravated homicide and others, but the court found him mentally disturbed, preventing criminal responsibility. He was dangerous it and ordered him to be detained. This security measure remained for a minimum period of three years, for general deterrence reasons. He challenged his detention under article 5(1) claiming a violation of article 5(4) there being no provision for judicial supervision of his confinement. The commission said the case could not be distinguished from the cases of Winterwerp and X v United Kingdom and declared his complaint admissible.
Held: There was no violation. He had been lawfully detained within the meaning of article 5(1). There had been no violation of article 5(4) because it 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. For that period the review required by article 5(4) of the Convention was incorporated in the detention decision taken in this instance by the Oporto Criminal Court. It was therefore not until those three years had elapsed that the applicant’s right to ‘take proceedings by which the lawfulness of his detention shall be decided . . by a court’ at reasonable intervals took effect. The court noted that legislation applied to Mr Silva Rocha, provided for a periodic and automatic judicial review after two years and made it possible for him to apply to the court at any moment to have the detention measure lifted.’ The intervals between the reviews were not excessive and he was discharged as soon as he had ceased to be dangerous.
18165/91, [1996] ECHR 58
Worldlii, Bailii
Human Rights
Cited by:
Cited – Giles, Regina (on the Application of) v Parole Board and Another HL 31-Jul-2003
The defendant had been sentenced for offences of violence, but an additional period was imposed to protect the public. He had been refused leave for reconsideration of that part of his sentence after he completed the normal segment of his sentence. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 September 2021; Ref: scu.165459
