APPLICATION/REQUETE N° 6870/75 Y. v/the UNITED KINGDOM Y . c/ROYAUME-UN I DECISION of 14 May 1977 on the admissibility of the application DÉCISION du 14 mai 1977 sur la recevabilité de la requêt e Article 3 of the Convention : Living conditions of a mental patient committed to hospital. Complaint declared admissible . Article 8, paragraph 1 of the Convention : Detained mental patient prevented from sending a telegram . Message nevertheless transmitted in sufficient time . Manifestly ill-founded. Article 26 of the Convention : Exhaustion of domestic remedies . Where living conditions of a mental patient committed to hospital are concerned, a claim for a declaratory judgment or damages under the Law of tort ls not, in the particular case, a remedy which had to be exhausted . Article 3 de la Convention : Conditions de vie d'un malade mental interné . Grief déciaré recevable . Article 8, paragraphe 1, de La Convention : interr/iction faite é un malade mental interné d'envoyer un télégramme. Message néanmoins transmis en temps utile . Défaut manifeste de fondement . Article 26 de la Convention : Epuisement des voies de recours internes . S'agtssant des conditions de vie d'un malade mental interné, une demande tendant à un jugement déclaratoire ou à des dommages-intérêts pour acte illicite (Law of tort ) ne constitue pas, en l'espéce, un recours qu'il é tait nécessaire d'exercer. THE FACTS I francais : voir p. 681 The facts of the case as submitted by the parties and apparently not in dispute may be summarised as follows : The applicant was born on 28 February 1950 . He is normally resident in F ., but is now detained in Broadmoor Hospital . He was originally represented by his - 37 - parents, Mr and Mrs A .X . He is now represented by Mr G ., a barrister of the New York bar, and Ms M ., a solicitor, both of the Legal and Weltare Rights Service of MIND Ithe National Association for Mental Health), London . On 30 November 1973, following the applicant's conviction on certain fraud charges, an order was made by L. Crown Court that he be detained in Broadmoor Hospital under S .60 of the Mental Health Act 1959 and that his release be restricted under S .65 of the Act, without limit of time . S .60 of the 1959 Act empowers courts in certain circumstances to order the detention of a convicted person in a mental hospital . S .65 empowers a Crown Court to order that the discharge of such a person should be subject to restrictions Imeaning essentially that decisions about discharge etc. are the responsibility of the Home Secretary) either for a limited or unlimited time . The Home Secretary is empowered under S .66 of the Act to revoke an order made under S .65 when he thinks fit to do s o Broadmoor Hospital is a "special hospital" provided Inowl under the provisions of S .40 of the National Health Service Reorganisation Act 1973, which requires the Secretary of State for Social Services to provide and maintain establishments for persons, subject to detention under the 1959 Act, who, in his opinion, require treatment under conditions of special security on account of their dangerous, violent or criminal propensities . After a period on remand in L. Prison, the applicant was transferred to Broadmoor Hospital on 19 December 1973 . He has been detained there since . The applicant applied for leave to appeal against his sentence and thi s application came before the full Court of Appeal in July 1974 and was dismissed . Shortly before the appeal was heard the applicant was refused permission by the hospital staff to send a telegram to his parents . S .66 of the 1959 Act provides that the Secretary of State may refer the case of a patient restricted under S .65 to a Mental Health Review Tribunal for advice . In addition, if the patient requests him, he must do so within two months unless he discharges the patient . The patient may make one such request in the course of his second year in hospital and a further request in the course of each two-year period after the end of the second year . The Tribunal cannot order the discharge of a patient but advises the Secretary of State . The applicant's case was reviewed by a Mental Health Review Tribunal in March 1975 and again in December 1976. The first review was at the request of the applicant . On the second occasion the Secretary of State referred the case to the tribunal on his own initiative . The original complaints of the applican t In his application the applicant made various complaints concerning the court proceedings in his case, the refusal of permission to send a telegram , -36- medical reports prepared by doctors concerned in his case, the conditions of his detention and proceedings before the Mental Health Review Tribunal in March 1975 . In particular the applicant complained that he had been refused permission to contact his parents urgently (by telegram) in relation to his appeal following the last-minute withdrawal of the solicitors acting for him . He also alleged that the conditions in which he had been detained in Broadmoor Hospital since 19 December 1973 had involved the violation of Art . 3 of the Convention . He submitted a statement concerning conditions in Broadmoor which were also referred to in other documents submitted with the application . He stated that he was held in "extreme slum conditions" and alleged that Broadmoor was grossly overcrowded and lacking in adequate sanitary facilities He referred in particular to the allegedly filthy condition of toilet facilities and lack of washing facilities. He alleged that he had to live constantly with murderers, rapists, arsonists, sexual perverts and other lunatics and that there was a constant atmosphere of violence . He alleged that in the dormitories the beds were only six to twelve inches apart, that observalion lights were kept on all night, that seriously disturbed patients occasionally went on the rampage at night, shouting and screaming and that the atmosphere in the dormitories was foul and airless since the majority of the windows were screwed shut . He alleged that he had no privacy and little fresh air or exercise . In his application the applicant stated that he had received no treatment whatever since being in Broadmoor, which, he said, demonstrated that he was not in need of inental care in the first place . It was stated that in July 1975 the applicant was offered treatment but refused and that in November 1975 his responsible medical officer IRMDI indicated that he needed monthly injections of a drug "Modicate" . It was alleged that this drug had various side-effects which had not been explained to the applicant or his parents and that an allegation by the RMO that this drug was needed because the applicant had a potentiality for violent outbursts was unsubstantiated . It was further alleged that in July and November 1975 his RMO incited the applicant to institute legal proceedings against him in respect of allegedly false statements concerning the applicant and his family . The applicant also indicated that he was not sufficiently employed and found the daily routine boring and stated that he received no preparation for return to the world outside, and was afraid of vegetating. It appears from his parents' submission to the Mental Health Review Tribunal in 1975 that they were concerned that he would become institutionalised and feared that he would be harmed by continued incarceration in Broadmoor . They expressed worry that apathy and resentment would develop and that the task of rehabilitation to normal life would become more difficult the longer he was kept in Broadmoor . In support of his allegations the applicant quoted from the Interim Report of Lord Butler's Committee on Mentally Abnormal Offenders, published in July 1974 . - 39 - In the passage quoted the Committee expressed astonishment and shock at over- crowding in Broadmoor and obse rved that in some wards beds were no more than eighteen inches apart, and that the patients, who lived out of suitcases for lack of cupboard room, had no privacy . They also noted that a sub-committee of the Parliamentary Estimates Committee had reported that they were "appalled" at the conditions when they visited the hospital in 1967-68 . On 10 September 1974 the applicant's parents wrote to the Secretary of State for Social Services complaining about the conditions in which the applicant was held, and requesting a Public Inquiry . In a reply dated 17 December 1974 the Department of Health and Social Security said inter alia that they had been well aware of, and much concerned about the conditions at Brbadmoor for a long time . They said that these mostly stemmed from the fact that the hospital had far more male patients than it had been built for, and that the buildings were over 100 years old, and it ;was thus impossible to introduce improvements in washing and toilet facilities or sleeping conditions . They stated that the only real solution was the building of a new special hospital expected to open in part in 1977. They stated that part of this hospital had already opened and that by January 1975 some 70 patients would have moved from Broadmoor . The final report of the Butler Committee, published in October 1975, indicates that 70 patients had been transferred from Broadmoor and that theyhad been informed by the Department of Health and Social Security that it was not intended to refill these places . The Committee stated however that overcrowding in the special hospitals remained a serious problem . Details of the remaining complaints originally made by the applicant are set out in the Commission's partial decision on the admissibility of the application, taken on 27 September 1976' . PROCEEDINGS BEFORE THE COMMISSIO N The Commission examined the admissibility of the application on 27 Sept- ember 1976 It decided to bring it to the notice of the respondent 'Government under Rule 42 121 (b) of its Rules of Procedure and to request them to submit written observations on its admissibility insofar as it concerned : a. the applicant's complaint that he had been refused permission tosend a telegram, insofar as it might raise an issue under Art . 8 of the Conventlon only ; b . the applicant's complaint that the conditions of his detention and treat- ment in Broadmoor Hospital from 19 December 1973 onwards had in- volved the violation of Art . 3 of the Convention, having due regard to the alleged lack of privacy in Broadmoor,Hospital, in addition to the other matters complained of by the applican t ' Not published . . . . - 40 - c. in connection with the applicani's complaints concerning the proceedings before the Menial Health Review Tribunal, the question whether the rights of review available to the applicant under the Mental Health Act 1959, or otherwise, satisfied the requirements of Art . 5 (4) of the Convention . The Commission adjourned its examination of the application insofar as it concerned these matters and declared the remainder of the application in- admissibl e The observations of the respondent Government were submitted on 23 Nov- ember 1976 . The applicant's observations in reply were received on 4 February 1977 . On 4 March !1977 the-Commission decided, in accordance with Rule 42 (2) in fine of its Rules of Procedure, to invite the parties to appear before it in order to make oral submissionson •the admissibility and merits of the application insofar as it raised issues under Arts . 3 and 5 of the Convention . It requested the parties to take into consideration in their submissions certain questions relating to Arts . 3, 5 111 and 141 and 26 of the Convention . It decided to hear submissions on the admissibility and merits of three other applications against the United Kingdom INos. 6840/74, 6998/75 and 7099/75) raising connected issues, at the same time' . The Commission also decided to inform the parties to the present appEcation that it did -not require any further submissions on the issue arising under Art 8 of the Convention . The hearing before the Commission took place on 11 and 12 May 1977 . SUBMISSIONS OF THE PARTIE S The refusal~of :permission to send a telegram - Art . 8 a. Submissions.ot.the respondent Government In their written observations the Government stated that it was a practice of Broadmoor Hospital to allow patients to send telegrams only in exceptional cir- cumstances, such as an acute family crisis . This was to protect the telephone exchange, which was heavily overloaded, from further overloading and to protect porters from having to make unnecessary journeys to the village Post Office . The applicant's parents had visited him three times weekly and had visited him on the early afternoon of 11 June 1974 . After the visit the applicant had found a letter from the Court of Appeal waiting for him . He had asked to send a telegram . The slaff ~had anticipated that his parents would visit him again on 13 June las in fact they did) and had considered there was insufficient urgency to warrant sending a -telegram. The applicant could have wrilten a letter . The Commission, in its partial decision, had found no indication that the applicant had been hindered inpreparing his case before the Court of Appeal . See D .R 8/106antl D .R . 10/5. - 41 - With regard to Art. 8 of the Convention, the Government stated that the applicant was afforded visiting facilities . Two of his three visits weekly included 20-minute promenades on the terrace With regard to the right to respect for correspondence, it was not clear whether this right extended to telegrams and the Government reserved their position on this point . In any event there was no interference with the applicant's ability to correspond, since the situation was not urgent and the applicant had been able to correspond by letter or communicate in person shortly afterwards . In the case of a person deprived of his liberty, Art. 8 (1) read with Art . 8 121 did not give unlimited freedom to correspond or to choose the means of correspondence, nor unlimiied freedom of access to different means of communication. The facts did not disclose any failure to "respect" the family life and correspondence of the applicant within the meaning of Art . 8 and this complaint was therefore manifestly ill-founded . b . Submissions of the applicant In his written observations in reply, the applicant stated that in June 1974 the solicitors acting in his appeal had suddenly withdrawn . He had been faced with the task of finding new solicitors and counsel . At about 16.30 hours on the afternoon of 11 June 1974, after his mother's visit, he had been handed a letter from the Court of Appeal stating that his case would be heard on 18 June 1974 . He had immediately asked if he could send a telegram to his parenls to try to get the hearing postponed until new legal representation could be arranged . The nursing staff and also, on 12 June 1974, his responsible medical officer, had refused permission. He had thus been prevented from communicating with his parents by telegram on an urgent and important matter . The hospital authorities had not had sufficient information to make a proper judgment as to the urgency of the situation and did not take notice of the applicant's explanation . They were in any event in breach of Art. 8 in preventing the applicant from sending the telegram, whatever its urgency . The applicant could not be certain that his parents would visit him again on 13 June. The journey from their home was difficult and lenglhy . Their visit could have been postponed, particularly as they were not aware of his wish to see them urgently. It was too late for the applicant to send a letter on 11 June . If he had written the following day, the letter would not have reached his parents until 13 June at the earliest . In fact his mother had left the house on the morning of 13 June before the post was delivered . She was told about the letter from the Court of Appeal that afternoon and thus had only two working days to apply to the Court for postponement of the hearing . The respondent Government had stated that the applicant's parents visited him three times weekly . In fact visits on days other than Saturdays and Sundays were restricted to seven per month . Special application had to be made for extra visits. Only two promenades per month were authorised,subject to staff availability and weather conditions. They were often cancelled at short notice without reasons being given and lasted only 15 minutes, not 20 as suggested . _42_ The refusal of permission to send the telegram was a violation of Art . 8 111 . The case could be distinguished from those relating to prisoners in which the Commission had applied an "inherent limitations" doctrine (e .g . No. 2749/66, De Courcy v. the United Kingdom, Yearbook X, p . 3881, since a hospital order was made for purposes of therapy not punishment . In any case the doctrine no longer applied. The European Court of Human Rights had held in the Golder case that the righis in Art . 8 were not subject to any "implied limitations" . The Court had also said that to impede someone from even initiating correspondence constituted one of the most far-reaching forms of interference with the exercise of the right to respect for correspondence . Even if the Commission applied a modified "inherent limitations" doctrine, the Vagrancy cases suggested a very narrow scope indeed. Interierence with correspondence should not be permissible except insofar as clearly justified by the cause of detention. Nominally the reason for detention in the applicant's case was to provide treatment . If correspondence was interfered with where there was clear evidence that it would be detrimental to the best therapeutic interests of the patient, arguably this would not contravene the Convention . However, the Government relied only on the administrative convenience of the staff . With reterence to Art . 8 121, there was some question whether the actio n was "in accordance with law" . The Mental Health Act 1959 empowered inter- ference with an outgoing postal packet, including a telegram, only if it appeared that it would be offensive, defamatory or likely to prejudice the interests of the patient . The Government's justification of the practice was questionable . What evidence was ihere that lifting of the restriction would overburden the telephone exchange ? The porters did not have to take telegrams in person to the Post Office but merely to telephone them . No provisions of the Convention authorised interference with correspondence on grounds of administrative convenience . The correspondence of detained persons in respect of their defence was especially privileged . This followed from Art . 6 (3) Ibl of the Convention . Conditions of detention and treatment in Broadmoor Hospital - Art. 3 a . Written observations of the respondent Government The Government stated that Broadmoor Hospital had been built in the nineteenth century and in recent years had been overcrowded . When he had made his application to the Commission the applicant had been located in a dormitory of 24 beds. The beds were close together . There was a flush toilet and wash-basin in the dormitory. It was inspected throughout the night, not less frequently than at hourly intervals by nursing staff . There had been disturbances in the dormitory but only very rarely . Nursing staff could be summoned b y pressing a bell . Dimmed lights were kept on at night to allow observation of th e patients . The windows could be opened at will . Ventilation was aided by ians, but these were noisy and ventilation was less than satisfactory . - 43 - In the daytime at the time when the application was made, some 60 patients had shared a large day-room, dining-room and broad corridor space with reading and recreational facilities . Patients had access to eight wash-basins, three WCs and two stand urinals . On five occasions each week they had opportunity for fresh air and exercise in the garden, or playing or watching games on the sports field, in addition to expeditions from the ward to work areas, hospital shop, chapel, social functions etc . The applicant had been visited three times weekly by his family. It had been difficult to institute meaningful treatment with which he was prepared to co-operate . As regards employment, he was laundryman for his ward and appeared not unhappy with his role . The Government accepted (hat conditions in the hospital were less than satisfactory on account of overcrowding . Accordingly a new special hospital was being built . Seventy patients had been transferred from Broadmoor to an advance unit and in 1978 and 1979 it was expected that 30 and 100 further patients would leave Broadmoor for the new hospital, which was due to be completed in 1980 . The reduction in the number of patients in Broadmoor would then allow it to be rebuilt in stages The respondent Government referred to the definitions of inhuman and degrading treatment given by the Commission in the Greek case fYearbook XII, p . 186) . They submitted that whilst conditions were less than satisfactory, they did not cause severe suffering or grossly humiliate patients or drive them to act against their will or conscience . The conditions of the applicant's detention did not therefore amount to a violation of Art . 3 . b . Written observations of the applicant in reply In support of his complaint concerning conditions in Broadmoor, the applicant submitted, with his observations, a statement by his father and an extract from a complaint to the Department of Health and Social Security . - The statement by his father emphasised that in the period from 19 Decem- ber 1973 onwards, conditions had not always been as described by the Govern- ment. Thus there was no reference to the use of urinal pots in dormitories or the lack of, and refusal to provide, toilet paper . The Government had referred to a flush toilet lately fitted in the applicant's present dormitory . They did not mention that there had been no door or cover to it for some time after it was installed, nor that there was now only a curtain . The applicant's bed was adjacent to it and he was disturbed through the night by patients using it . It was not kept clean . Many patients were very dirty in their personal habits and left toilets, and often the floors of wards and dormitories, in a filthy condition . This was degrading and incontinent patients should be housed separately . There was no privacy. The applicant was one of a crowd 24 hours per day . By day he had to mix with murderers, rapist, arsonists and mental degenerates o f -4`1- all kinds . By night he was locked in a dormitory with them, with beds as little as 12-18 inches apart . There were frequent disturbances from patients and he had also witnessed incidents of violence . Disturbances were also caused by the night nurses' inspections . Sleep was difficult or impossible . All the windows did not open. Some were screwed shut, for instance those at Cornwall House where the applicant was from February to April 1974 . There was an ever-present fear of violence . The applicant was eve r conscious of the dangers, particularly at night when all were locked in the dormitory. Even in prisons people were segregated in cells in ones, twos or threes, according to their dangerous or violent propensities . There was no place for a patient to sit quietly. The so-called "Quiet Rooms" were either kept locked or liable to be disturbed by patients. The lack of privacy, lack of conditions for a good night's sleep and ever-present fear of violence did constitute severe suffering over such a long period . The Government's reference to availability of 8 wash-basins ignored the fact that plugs were often missing so that washing was impossible for so many people in the time allowed . People had to shave every other day by arrangement . Even the basic furniture of a hospital was missing . The applicant had only one tin locker, of one cubic toot and two suitcases of his own for his possessions . Standards as to the amount of space for patients laid down by the Government were far from being met at Broadmoor, yet doctors and the Department of Health and Social Security IDHSSI knowingly continued to admit patients and continued the dreadful state of overcrowding . Senior management in the DHSS took neither interest nor effective action on this overcrowding . On average the time for fresh air and exercise lon Wednesdays, Saturdays, Sundays and some summer evenings) worked out at 4'h hours per week . This was not enough. The applicant's application for "terrace parole" had not been approved . There was no internal exercise area . Even in prisons there was provision for an hour's exercise per day . The limitation of opportunities for fresh air and exercise daily was degrading and contributed much to institutionalisation . The restrictions on family visits were unnecessary in a hospital. No library was available to patients At the time the application was made the applicant had no work after cleaning the corridors, finishing at 09 .30 hours . He had nothing at all to do for the rest of the day during the first year . During the second year he had had a part-time job cleaning and washing up in the nurses' staff-room . His request to work in the gardens had been refused . It was degrading and inhuman to allow a young, fit man to sit around all day with nothing to do and nothing to look forward to under a sentence of indefinite detention . The Government had said the Responsible Medical Officer (RMP) had had difficulty instituting meaningful treatment with which the applicant was prepared to co-operate. However the need for treatment had not been explained . The RMO had alleged that he had a "history of assaultive behaviour" . The Court of Appeal had thrown this allegation out . He alleged that the applicant had a potentiality fo r - 45 - violence but this was impossible to predict as the Butler Report had emphasised . In 2'/: years after the applicant's arrival in December 1973 his RMO had seen him for a total of only 42 minutes, spread over 7 interviews . "Treatment" had first been mentioned in January 1975 when the RMO had asked what sort of treatment he expected . Only in November 1975 had he suggested monthly injections of "Modicate" . He had made this a condition for transfer to an ordinary hospital . The applicant had seen the horrific after-effects of such drugs . The need for such drugs and details of possible side-effects had not been explained nor had the applicant's parents been consulted until April 1976 . In July 1976 the RMO had switched to requesting the applicant to join a special psychotherapeutic group to determine his attitudes and interpersonal relationships and improve his social skills The need for this had not been explained . The conclusion was that the RMO had sought to drive the applicant to act against his will and conscience with the promise of release from Broadmoor on condition that he accepted treatment, without explanation of the need for, or after-effects of, the treatment . The Government had not mentioned the industrial action by nursing staff between about 22 November and 18 December 1974, when they had prevented patients leaving their wards for recreation and when, apart from the last few days, visits by relatives had not been allowed To be shut up during this time amidst patients who were not forced to continue courses of treatment and where nursing staff refused to interfere in fights or touch patients in any way had been a degarding and inhuman experience . The lire precautions in the hospital were inadequate . Patients were locked in dormitories every night, fire exits were obstructed and there were no fire-drills . Inflammable materials were readily available for arsonists to start fires with and this had happened in Kent House . There was real fear as to what could happen in the event of a fire . In addition medical care was inadequate . There had been delays in providing attention in respect of complaints of eye-strain by the applicant in January 1974 . A check-up had not been arranged until March 1975 . There had also been delays of some five days in providing medical attention on two occasions when the applicant had received sporting injuries . The most degrading and inhuman experience was the number of false statements made by doctors which had contributed fo the applicant's detention for over three years . In the complaint to the Department of Health and Social Security many of the applicant's complaints to the Commission were repeated . A number of other complaints were also made, for instance on excessive canteen prices and inadequate laundry facilities . In the body of the applicant's written observations it was submitted that th e applicant had provided evidence from various sources of numerous aspects of the conditions in Broadmoor, which, taken together, constituted a violation of Art . 3. - 46 - These were, in particular : overcrowding, lack of privacy, inadequate and totally unsanitary washing and toilet facilities, lack of exercise facilities and day-time occupation, danger of fire and inadequate medical treatment and supervision . Broadmoor was a hospital and not a prison . The conditions described were totally unacceptable in any hospital . The respondent Government had accepted that conditions were "less than satisfactory on account of overcrowding" and explained that some patients would be transferred to a new special hospital . However the fact that overcrowding might be alleviated in the future did not excuse the violation of Art 3, from which there could be no derogation . The conditions constituted a violation of Art . 3 which was not excused by the proposed policy of building a new hospital . c Oral submissions of the respondent Governmen t i. lnrroductory In their oral submissions at the hearing, the respondent Government first recalled that the applicant was held by virtue of a court order made under SS .60 and 65 of the 1959 Act . A restriction order under S .65 could only be made if the court considered it necessary for the protection of the public . Furthermore, the court had ordered that the applicant should be held in a special hospital provided for persons who required treatment under conditions of special security on account of dangerous, violent or criminal propensities . These factors were very relevant to consideration of the issues under Art . 3, since in addition to an obligation to provide the most satisfactory treatment possible in the circum- stances, the Secretary of State had responsibility for security. The special hospitals contained some of the most dangerous members of the community, and this was an important responsibility . The Government referred to a book of photographs and file of documents concerning Broadmoor . Whilst there were aspects of the hospital which were not as good as they would wish, there were also attractive aspects . The Government particularly stressed the occupational and recreational facilities which were provided . The problem of overcrowding was recognised . There was a historical explanation for this, namely that with changing medical attitudes leading to a reduction of the restrictions placed on patients in ordinary mental hospitals, it had been found that apart from the special hospitals there were very few hospitals that could offer any security . This had resulted in great pressure on the special hospitals. Steps had been put in hand to try to overcome the problem . The position at Broadmoor was not now as acute as it had been and it was now possible to carry out improvements there . ii . Domestic remedies in relarion to the An . 3 complain t If there was negligent treatment of a patient, the Secretary of State was liable in damages for the discomfort suffered . Furthermore a declaration could be obtained against the Crown to the effect that the conditions contravened the laws _q7 - of tort. By long established practice the Crown treated a declaration as equivalent to an injunction (a remedy not available against it) . Damages could be awarded for loss of the pleasures or amenities of life, in addition to damages for pain and suffering or loss of earning power . The Secretary of State would be vicariously liable for the negligence of his servants, such as the hospital cleaning staff . Matters such as those complained of by the applicant could sound in damages . Furthermore, whilst the Government were aware of no case in the law of tort which established that damages for mental distress alone were recoverable, damages could be recovered in the law of contract for mental distress which was the direct and inevitable consequence of the conduct complained ot . The present tendency was to assimilate the position in relation to damages under the law of contract to those under the law of tort . There was no logical reason why such damages could not also be obtainedin .the law of tort . The jurisprudence of the Court and Commission indicated that a high standard of conduct had to be alleged to amount to contravention of Art. 3. If mental distress was suffered as a result of such conduct, there was a strong probability that damages could be obtained even if that were the only kind ot damage suffered . In any event other kinds of damage could be recovered and declaratory relief could be obtained . If the conduct complained of by the applicant fell for consideration under Art . 3, which in the Government's submission it did not, it could sound in damages . The applicant had not attempted to exhaust the available remedies . It was enough that the possibility of a remedy existed, the outcome of which could not be predicted with certainty. Mere doubt as to the existence and prospects of success of a remedy did not absolve an applicant from exhausting it . The national courts must have had the opportunity of ruling on the matter before any appeal to the Commission . IApplication No. 1661/62, X & Y v. Belgium, Yearbook Vl, p. 360, Collection o/Decisions 7t7, p. 20 ; Eur. Court H.R ., Handyside Case, Judgment of 27 December 1976, Series A . No. 24, para. 48. ) In reply to the applicant's submissions on the matter Isee below) the Government submitted that difficulties in bringing proceedings were not as great as had been indicated . The very ability of the applicant to bring his application, to obtain medical reports and access to his legal adviser, showed this . If the conduct complained of amounted to a contravention of Art . 3, it would not be the case either that it would be uneconomic to bring proceedings or that an application for legal aid would be dismissed as a trifling matter . The applicant argued that the Government's submission as to the law of damages was controversial . This was not so . Whilst there was no direct precedent for a claim of this precise nature, such a claim was clearly not one where it could be said that there was no reasonable cause of action . The Government submitted that the applicant's complaints under Art . 3 were therefore inadmissible for non-exhaustion of domestic remedies . - 48 - iii . The issues under Arr . 3 The Government first referred to the Commission's approach to Art . 3 in the Greek case, which was, they submitted, a proper one . The whole sense of Art . 3 was to confine itself to matters which were gross . They then gave details, with reference to the photographs, of the accom- modation which the applicant had occupied during his period in Broadmoor and of recreational and occupational facilities which he had used or which had been available. With reference to the toilet facilities, account had to be taken of the problems which could arise in treating patients of the sort held in Broadmoor . There could be anti-social activities and, whatever the conditions, such patients could be subject to stresses which would not occur in a hospital dealing with different types of patient There was no way in which patients such as the applicant could be protected from the totality of the consequences of the environment which was necessary in the interests of security . It had been difficult to institute meaningful treatment of the applicant because of his refusal of medication and rejection of attempts at social therapy . A distinction had to be drawn between the needs of a long-stay patient suffering from a condition which changed slowly, and those of a patient suffering an acute condition needing intensive whole-time medical attention . The applicant's RMO, the consultant psychiatrist, was head of a clinical team consisting of nurses, psychologists, educationalists, occupational officers and others, all of whom had contact with the patient . The consultant psychiatrist regularly met his team and was aware of the state and progress of the patient from their reports . His personal intervention and formal examination of the patient might not be necessary more than a few times a year . He was in any event in his ward every day and saw his patient going about his daily activity . The circumstances and nature of the patients being detained created the type of problems to which the applicant referred, in particular with reference to his statements about fear . Because of the sort of inmates in Broadmoor, it was necessary to have the security which caused the disadvantages the applicant complained of. It was true that possibly 40% of the patients were not gainfully employed . This figure must be read in the light of the total commitment of the hospital. Newly arrived patients going through the assessment process, and other categories of patient who were ill or having special treatment would be unable to work . The stress that had been placed on occupational difficulties and the type of persons with whom the applicant had to associate, indicated how far the case departed from the sort of questions which might arise under Art . 3 . The Government also referred to two medical reports produced by the applicant at the hearing . These represented the views of two doctors . Other doctors could take a different view as the Mental Health Review Tribunal which had recently reviewed the applicant's case had done. The one desire of those responsible was, as long as it was consistent with public safety, to ensure tha t _qg_ people in Broadmoor went to hospitals with less security or were released as soon as possible, since although steps had continuously been taken to improve conditions at Broadmoor, there remained a real problem about accommodation . There was a world of difference between overcrowding and a breach of Art . 3. It would be wrong if the difficulties that arose as a result of doing one's best in inadequate hospital facilities were allowed to be treated as creating matters wholly inappropriate for consideration as a contravention of Art . 3 . The allegation of violation of Art . 3 was manifestly ill-founded . d . Oral submissions of the applican t i. lntroductory The applicant's representative first observed that he had been convicted of a non-violent fraud and had not had a previous criminal record . If he had been dealt with under the ordinary provisions of criminal law he would have been unlikely to have received any custodial sentence . At most it would have been a short one . He had been detained for over three years . Evidence given to the Butler Committee by the Broadmoor psychologists themselves, suggested that there was no better basis for predicting potential dangerousness in the case of mentally abnormal offenders ihan there was in the case of mentally normal offenders The Court of Appeal had itself (in R. v. McFarlane, &7 Criminal Appeal Reports, p 3201 expressed doubt as to whether the applicant should have gone to a special hospital and questioned how the criterion in S .40 of the National Health Service Reorganisation Act, 1973 had been met . ii . Domestic remedies Tfie applicant submitted that in English law it was necessary, before damages could be recovered for mental distress, first to show that physical injury or a manifestable physical or mental illness had been suffered . Damages for loss of amenities of life would only be awarded where the loss had been caused by physical injury . Mere physical discomfort would not, it was submitted, be a ground of damages without an accompanying physical injury . Practical difficulties would arise if a patient in a closed institution were to try to bring an action of the kind pointed to bythe Government . An applicant was not required to exhaust a remedy if, in view of the consistent case law of the national courts, this remedy had no reasonable chance of success . In the present case there would be no reasonable chance of success because of practical difficulties. The applicant had no financial means and would have to apply for legal aid . This would only be granted by the Law Society if there was a reasonable chance of success . When making its decision it would look to see whether reasonable damages would be available . The allegations of the applicant, for instance that the beds were eight inches apart, would not give rise to a significant amount of damages . The Law Society would also have to look at the grounds of the case . It would be the applicant's word against that of the hospita l - 50 - and he could not recover documents to confirm his allegations . Finally a patient in Broadmoor was in a closed institution without access to information or under- standing that he could bring an action, or how he could do so . The Government had not raised the matter in their origianl observations . Their novel argument about physical discomfort had been put forward by a team of lawyers to try to think of any theoretical possibility of raising an action . It was unlikely that a patient would understand he could do so . Furthermore a patient would have to apply to the High Court under S .141 of the 1959 Act for permission to bring his action, and would .have to show on affidavit evidence, without being able to present his full case, that there was substantial ground to show that the person to be proceeded against had acted in bad failh or withoul reasonable care . Experience in other cases, where the remedy was clearer than in the present one, showed that it was a futile exercise first to get legal aid, ihen to obtain permission under S .141, then to prove the case in court, all to obtain a small sum of damages . The applicant therefore submitted that it was theoretically impossible to obtain a remedy since mental distress alone would not give rise to a cause of action and, in any event, it would be a futile effort . iii . The issues under Art. 3 It was first submitted that the applicant was being detained not because of his offence but in his own best interests and because he needed treatment . In these circumstances, the conditions in the hospital had to measure up to a reasonable minimum standard which would have benefited the applicant . If the Government exercised the power to take a person's liberty for the purpose of treatment, it had the equal responsibility to provide a facility which served that purpose . The applicant submitted firstly that he had been detained with virtually nothing to do all day . This led to secondary schizophrenic dementia, or institu- tionalisation, when the patient became withdrawn and apathetic and lost his capacity to cope with ordinary life . The applicant had seen his RMO for a total of only 94 minutes between May 1974 and July 1976 and had not seen him at all since then . The photographs showing the opportunities for employment were not relevant since the applicant had not participated in any of the activities shown . 44% of the patients did not leave the ward area to work but remained there as the applicant had done for most of his detention . The applicant alleged that until his move to the laundry room, he had worked for considerably less than 1 7: hours per day. He spent only about 4'/x hours per week in exercise . This was not sufficient. The Prison Rules provided for a minimum of one hour's exercise per day for prisoners . A number ot medical reports, including two recently submitted to the Commission, agreed that whilst the applicant had been mentally ill at the time of his admission to hospital, he was not now . Yet it would be - 51 - difficult for them to suggest that he should not be in a local hospital since he was suffering from a secondary schizophrenic illness, the process of institutionalisation which had been describe d . The applicant's second submission concerned the general overcrowding and lack of privacy . The hospital had been built in 1863 and as long ago as 1948 had 984 patients . The Government had been well aware of the situation since them . In addition the applicant referred to the comments made on the overcrowding by the Parliamentary Estimates Committee in 1968 and the Butler Committee in 1974 . The minimum standard for space at night, set in 1972 by the Department of Health and Social Security, was 50 square feet per bed. The space now available at Broadmoor was 46 square feet per bed, and this was after there had been a reduction in the number of patients . It was estimated that in 1974 the figure would have been 37 square feet per bed The applicant had no privacy and there was a real potential for violence at night . The applicant was in constant fear of this The applicant's third submission involved toilets and sanitary conditions . No toilets were available in single rooms or in several of the very overcrowded dormitories and there was lack of privacy . In this respect the applicant referred to relevant passages in the Hospital Advisory Service Report on the hospital . Finally the applicant submitted that the fire precautions were inadequate . The applicant submitted that the conditions were inhuman and degrading for any patient, whether or not he was psychotic, delusionary or unable to communicate. However, the medical reports suggested that although he had once been suffering from a mental illness, he was not now suffering a psychosis or unsoundness of mind . His allegations should be viewed in this context . His case might be similar to the Simon-Herold case IApplication No. 4340/69 Simon- Herold v. Austria, Yearbook XIV, p . 352, Collection of Decisions 38, p . 18), where the applicant had been kept in psychiatric conditions although not at the time mentally ill . 3 . Issues arising under Art. 5 of the Conventio n a . Written observations of the respondent Government The Government observed that the applicant's case had been considered by a Mental Health Review Tribunal on 11 March 1975 following a request by the applicant to the Secretary of State . The Home Secretary had decided to refer the case to a Tribunal again and it would hear it in December 1976 . Two parts of English law had to be considered. In the first place the Home Secretary had powers under S .66 of the Act in connection with the discharge of restricted patients . If he was satisfied that the restriction order was no longer necessary he could direct that the patient should cease to be subject to the special restrictions. While a restriction order was in force, he could discharge a patient absolutely or subject to conditions . - 52 - The Home Secretary could refer the case of a restricted patient to a Mental Health Review Tribunal for its advice at any time . In addition if a patient requested him, he had to refer his case to a Tribunal within two months unless he discharged the patient during that time . Such requests could be made during the second year from the date of the hospital order and once thereafter during each period of two years . Secondly a person detained in England or Wales could apply to a court for a writ of habeas corpus, the purpose of which was to direct the organisation detaining the applicant to produce him before the court which investigated whether the correct procedures had been carried out without which the detention would be unlawful . The application for a writ of habeas corpus provided full and complete compliance with Art. 5(4 ) The orders under which the applicant was detained had been made by the Crown Court . In the Vagrancy Cases, the European Court of Human Rights had said as follows : . . "Where the decision depriving a person of his liberty is one taken by an ad- ministrative body, there is no doubt that Article 5 (4) obliges the Contracting States to make available to the person detained a right of recourse to a court , but there is nothing to indicate that the same applies when the decision is made by a court at the close of judicial proceedings . In the latter case ihe supervision required by Article 5 (4) is incorporated in the decision ; this is so, lor example, where a sentence of imprisonment is pro- nounced after 'conviction by a competent court' IArticle 5(1) (a) of the Convention) . It may therefore be concluded that Article 5(4) is observed if the arrest or detention . . . provided for in paragraph (1) le), is ordered by a 'court' within the meaning of paragraph 141" . This had been confirmed in para . 77 of the Court's judgment of 8 June 1976 in the case of Engel and othe rs . Since the procedural legality of the applicant's detention could be tested at any time by application for habeas corpus and the two orders under which the applicant was detained had been made by a court, Art . 5 (4) was complied with . In considering the position of a person who continued to be detained under Art 5(1) lel of the Convention, a distinction had to be drawn between the, "lawfulness" of his continued detention and the substantive justification for it . Unsoundness of mind was subject to gradual amelioration or deterioration and the cases of persons detained should therefore be reassessed at appropriate intervals . The Convention did not require that this reassessment should be carried out or reviewed by a court, which was not an appropriate body to determine whether the degree of recovery or risk of relapse was such as to justify conditional or unconditional release. There might be serious difficulties in allowing a person of unsound mind access to report and other material which in the opinion of the authorities justified his continued detention . Nor would it be reasonably possible , - 53 - nor in many cases desirable from the patient's point of view, to allow him to conduct before a court repeated applications for his release . In its jurisprudence the Commission had to some extent recognised that special considerations applied in the case of a mental patient by saying that the obligation to disclose all relevant material did not necessarily apply in his case and that a right to submit a reapplication only after a lapse of six months from a previous application for review of detention was not contrary to the obligation to have the lawfulness of detention decided "speeddy" However the Government would go further and submit that whilst the lawfulness of the detention udner Art . 5 111 (e) must be subject to periodic review, the substantive justification for it could not reasonably be susceptible of recurrent review by a court and that Art . 5 (4) did not impose such as obligation . The Mental Health Review Tribunal reassessed the mental health of a restricted patient such as the applicant but did not carry out the functions of a court. The lawfulness of the detention could be scrutinised by the Divisional Court in habeas corpus proceedings. The Home Secretary, who was responsible to Parliament for the safety and protection of the public, gave great weight to the advice of the Tribunal, but the final decision must be his . It was submitted that there was thus no violation of Art . 5 141 . The Government accordingly requested the Commission to declare this complaint incompatible with the Convention or manifestly ill-founded . b Written observations of the applicant in reply Art . 5 required, in the applicant's submission, that the initial detention must be lawful and that there must be a periodic review of the substantive justification for it. The writ of habeas corpus was available to test the legality of the original detention . However the court had taken a very limited view of its functions in this area. In the case of a person detained under SS .60 and 65 of the 1959 Act, it seemed that the writ could only lie in extremely narrow circumstances, for instance it an irregularity or want of jurisdiction in the court making the orders could be proved . If, on the face of the papers before the court, all the procedures laid down in the Act had been observed, a writ of habeas corpus would not lie . This remedy did not test the substantive justification for the detention . It was interestjhg in this regard to refer to the Court of Appeal's remarks in the McFarlane case, to the effect that the applicant was a "petty fraudsman" with no history of mental illness or violence and that "special hospitals should not be cluttered up with cases of this sort" . If the applicant had been dealt with as an "ordinary" offender he would have received a non-custodial sentence, or possibly a very short prison sentence . Instead he had been dealt with as an "abnormal" offender and had beendetained for 3 years thus far . The justification for this could not be the crime, which had been trivial . The length of detention on penal grounds should only be pro- portionate to the gravity of the offence . Furthermore the continued detentio n -54- could not be justified on the grounds of inental disorder since the doctor at Broadmoor had no right to discharge the applicant and there was no appeal to any other body . It was important to note that, according to DHSS statistics for 1973, 64% of all persons detained under S .60 of the 1959 Act were diagnosed as psychopathic or subnormal . Tliese patients would not be subject to detention under the civil portions IPart IVI of the Act . Furthermore there were several cases where the Home Secretary had refused discharge although the responsible medical officer had recommended it . c. Oral submissions of the respondent Governmen t The respondent Government first submitted that the applicant had not exhausted domestic remedies in relation to his complaint under Art . 5 of the Convemlon . Remedies were available in the form of the prerogative wrils of habeas corpus, ceniorari; prohibition and mandamus . Each remedy supplemented the other and together they provided a formidable armoury for those wishing to attack administrative decisions . In the present case habeas corpus was perhaps the most important . The extent of thé role of that remedy was now much greater than it had been . The procedure in all four remedies was speedy and simple . The practice was normally for an appGcation for habeas corpus to be combined with an application for one of the other writs, under which the order for detention could be quashed . However, the courts were increasingly prepared to grant habeas corpus where the order was one which could be quahsed, even where the formality of certiorari had not occurred . The courts in England were increasingly saying that there was a duty on bodies laking administrative decisions to act fairly . If they did not there was a breach of the rules of natural justice and the order made would either be treated as a nullity or quashed as a result of certiorari. This was a developing field of law and the attitude of the courts was that there should be no set pattern ot what was fair in all circumstances . The courts had recently hold that the Home Secretary was under a duty to act fairly in deciding whether to put a prisoner into a particular category and the courts could review his conduct to see if had done so . By analogy there could be no doubt that he was under a duty to act fairly in his review function under S .65 of the 1959 Act . If it was suggested that he had not done so, relief could be sought . In appropriate circumstances the courts could make an order of mandamus directing the Home Secretary to reconsider the matter in a fair manner . If the court concluded that the only conclusions a reasonable Secretary of State could come to was that the person concerned should be released, there might be grounds for saying that there should also be an order of habeas corpus . The courts would also review the Home Secretary's decision .if'he had madean error of law, or if there was no evidence to support his decision, or no evidence on which he could reasonably have come to his decision . 55 - These remedies did not amount to a straight appeal against the Secretary of State's decision . If two doctors took different views of a case and the Secretary of State reasonably chose one rather than the other, his decision could not be attacked . There was no impediment on a person being independently medically examined in Broadmoor . If a medical report were obtained to the effect that there was no reason for detention under a restriction order any longer, this would be the son of malerial that might lead the Divisional Court to require the Home Secretary to make an answer . If the courts found that he had other evidence which had caused him to come to a different conclusion, they could not intervene . If there had been no reasonable basis for the Secretary of State's conclusion, the court could intervene, as they could if he had acted unfairly . Although the Home Secretary was not required to give reasons for his decislons, the case of Padfield' showed that the scrutiny of the courts could not be avoided by giving no reasons . If a prima lacie case were produced indicating that something should have been done, and no reason was given for a decision to the opposite, the court would infer that there could be no valid reason and that the decision was bad . Thus, if it were alleged that there was no valid reason for detaining a person under a restriction order, and there was medical evidence to this effect, if no explanation was given as to why the Secretary of State took a ditterent view, the court could infer that he had no reason for acting in the way he had and quash the order . The Mental Health Review Tribunal advised 1he Secretary of State . If it were shown that the procedure before it had been unfair, the Secretary of State's decision could be the subject of surveillance by the court . The Government referred to a number of cases illustrating the development of the principle of fairness in English law • If the applicant considered that because of his medical state there could be no proper reason why he should still be subject to restriction and detained and he obtained, as had allegedly been done, medical reports showing that there was no justification for detaining him, the onus would be placed on the Secretary of State to justify his detention If he did not do so the court could, in appropriate circumstances, grant relief by way of an order of mandamus and an order of habeas corpus . In prerogative proceedings it was unusual for evidence to be heard orally in view of the speed of the procedure . It was normally dealt with by affidavit . However there was an alternative, which was to bring declaratory proceedings to • Pedfield v . Minister of Apriculture, Feheriea and Food, 1196B1 . 1 AII E .R . 694 . •• Re . H .K . (an infantl . 1196711 All E .R .226 ; Re . Godden, 119711 AII E .R . 20 : R . v . Board of Control, ex pparte Runy . 119561 1 AII E .R . 769 . - 56 - obtain a declaration that the Secretary of State could not lawfully detain the person concerned under restriction . In such proceedings witnesses were called and discovery of documents could be obtained . The applicant accordingly had a remedy which fell within Art 26 of the Convention but which had not been exhausted . Referring to the applicant's submissions in reply, the Government submilted that the Hassan case' merely said that where the Secretary of State purported to act under the authority of an Act, it was for the applicant for habeas corpus to show a prima /acie case. It did not say that if the applicant established a prima /acie case that something was wrong, the courts could not consider it merely because the Secretary of State said he was relying on statute . The Padfield case had made a big change in the law since the Stafford case " was decided . The Padfield case said that where the Secretary of State was given an unlimited discretion, it was not open to him to thwart the policy of the Act under which it was given . The 1959 Act dealt with the detention of persons suffering from mental abnormality and the Secretary of State could only exercise his discretion within the content of the purpose of the Act . He could consider the interests of the patient and the protection of the public . It was not an answer for the applicant to say that he would have no reasonable chance of success in his case . What he must show was that in a proper case there would be no such chance . The Government accepted that the court could not substitute its discretion for that of the Secretary of State, but there was great scope for review . Referring to Art . 5 of the Convention and the questions put by the Commission the Government reiterated their submission that if the initial depri- vation of liberty was made by an order of a court, Art . 5 141 did not provide a right to further review . They accepted that the detention must continue to be lawful throughout and accepted that in the case of detention under Art . 5 (1) lel it was broadly true that it must throughout be justifiable be reference to one of the purposes set out . However, it was possible to set down precise limits as to when detention of a person of unsound mind ceased to be justifiable and a margin of appreciation must be allowed to the State to decide whether the condition had changed . It was accepted that a prima lacie case of inental ill health must be shown to justify detention on this ground under Art . 5 (1) (e) . There was no requirement that the detention should be necessary . This put the matter too high . What had to be indicated was that there were proper grounds for making the order, either for the public interest or in the interest of the person detained and a margin of discretion to decide the matter must be left to the body concerned . • R . v . Governor or Risley Prison, ex aerte Wejid Haaen, 119761 2 AII E .R . 123 . •' R . y . Governor of Leeds Prison, e. carte Stafford, 119641 1 AII E .R . 610 . - 57 - Art . 5 (1) (e) implied that there must be some form of continuing .orperiodic review of the mental health of the detainee . It would otherwise be impossibleto say that the detention was indeed detention of a person of unsound mind . This should at least be partially a medical review. The question whether there should be an administrative or judicial element in the review depended very much on the type of detention . Where a restriction order was made for protection of the public, it could not be right that the review should be solely medical . Consider- ations wider than purely medical ones had to be taken into account . A court was not an appropriate body to determine whether the degree of recovery of a patien t was such as to justify release . There would also be serious difficulties in allowin g a patient access to reports and confidential material which formed the basis of an assessment by doctors or a Mental Health Review Tribunal . Furthermore, a court procedure was too formalised for this sort of task and would normally be inconsistent with full and confidential disclosure of necessary information relating to a person's condilion . Art 5(1 ) le) did not imply a right to treatment . Treatment was available in the United Kingdom and it was the desire and intent of the United Kingdom that it should be received when needed . Nevertheless there might be conditions which would not respond to treatment but where the person still had to be detained . There was no logical reason why the jurisprudence of the Court in the Vagrancy cases in relation to Art . 5(4) should not apply in relation to persons detained for an unlimited period as being of unsound mind . The position of a person held on an unlimited restriction order was analogous to that of a person sentenced to life imprisonment . Just as in the case of parole on a life sentence, the fact that there was a right of recall enabled the Secretary of State to weigh up the risks differently, in favour of the patient . There was a much greater flexibility than there would be if Art . 5 (4) conlinued to apply throughout the period of restriction . Even if Art . 5 (4) did continue to apply, habeas corpus proceedings and the other prerogative writs and declaratory proceedings provided the necessary review . The review required by Art . 5 (4) was a review of legality, to see that the previous decision was in accordance with law . In any event the Government submitted that it was possibly wrong to emphasise Art . 5 0) (e) and 5 (4) since the applicant's detention fell within Art . 5 (1) (a), being detention after conviction by a competent court . Art. 5(4) was not therefore applicable . In reviewing the cases of patients subjectto S .65 restriction orders, th e Mental Health Review Tribunal acted in an advisory, not a judicial capacity . The Secretary of State could refer a case for advice at any time and the patient had a right to review at certain intervals . The person concerned was entitled to an interview by the Tribunal . The Tribunal included an independent medical member and thepractice was to allow patients to bring forward medical evidence of thei r - 5g- own . The patient could be represented, legally or otherwise . The patient was not informed of the Tribunal's opinion since the decision was the Home Secrelary's . Up to the end of 1975, 31 .6% of discharge recommendations had been rejected by the Home Secretary . However, he might have adopted some other course, such as uansfer to an open hospital . There was usually a conflict of medical opinion in such cases. In these cases the role of the Secretary of State was of initial importance since the Tribunal was largely concerned with the mental condition and interests of the patient, whilst the Secretary of State had to take into account the protection of the public . In addition the Home Secretary might take lurther advice from an advisory board on restricted patients, which examined the potential risk inherent in discharge . As to the suitability of a court to assess the need for detention, the Government submitted that there was greater need for scrutiny at the initial stage when detention was ordered than later . There was a possibility that procedures would be abused at that stage and it was important that the court should intervene then . In addition the court had initially decided on the guilt of the accused person but it would be inappropriate to refer the case back to a criminal court for review . Subsequently relationships were established between the patient and medical staff and confidence had to be respected if the staff were to perform their role properly and also make full and frank reports . This would be difficult in a court procedure . The Secretary of State would keep in continuous contact with the situation after detention had been ordered in a way that a court could not . The subsequent review was thus better carried out by an administrative authority, such as the Secretary of State . He was also better suited to decide in the case of polentially dangerous patients than a body such as the Mental Health Review Tribunal. The public would not feel that their interests were properly protected by such a body. The Home Secretary was answerable to Parliament . Furthermore, to entrust decisions to a central administrative authority brought about consistency of policy . Summarising their arguments under Art . 5, the Government submitted that the detention of the applicant was authorised under Art 5 111 lal and that was the end of the matter Alternatively if there was any temporal limitation on Art 5111 lal meaning that they could no longer rely on it in connection with subsequent reviews, then Art . 5 f11 lel required that grounds of detention should be related to the person's unsoundness of mind . This was the only basis of detention under the Mental Health Act 1959 . It could not be relied on to detain a person for matters unconnected with unsoundness of mind . Although the review procedure which took place was not by a court, Art. 5 141, assuming it was relevant, was complied with . Habeas corpus proceedings were sulficient in themselves but the extended review possible by use of the other prerogative writs complied with the requirements of Art . 5 (4) insofar as they involved consider- ation of anything more than the procedural matters which were admirably capable of being resolved on an application for habeas corpus . - 59 - The Government submitted that it could not be said that they had contravened Art. 5 by adopting the procedure laid down in the Mental Health Act Act 1959. The Secretary of State had not been shown to have contravened any of the discretions properly given him by the Act . No violation of Art . 5, properly interpreted, had been made out . d . Oral Submissions of the applicant in reply The applicant submitted that the remedies available in domestic law were not as wide as the Government had suggested . Where the matter was left to the exercise of executive discretion, it was virtually impossible for a prisoner who alleged that he no longer suffered from a mental defect to obtain review by the courts. The release of a patient subject to restrictions was expressly made dependent on the Home Secretary being satisfied that a restriction order was no longer required for the protection of the public IS .66 111 of the 1959 Act) . Until the Home Secretary had exercised his discretion under S .66, no writ of habeas corpus could issue . The applicant could not therefore secure a review by a court of the material justification for his detention . The applicant referred to two cases which he submitted illustrated the limitations of habeas corpus proceedings' . The Hassan case showed that the onus was on the applicant to show that his detention was illegal, once the jailor produced a return showing on the face of it that the detention was legal from a technical point of view In the Stafford case the Home Secretary had submitted that the court had no jurisdiction to grant habeas corpus in a case concerned with remission of sentence, since he had absolute discretion in the matter . The court had also expressed doubt as to whether it had jurisdiction . The applicant was not obliged to exhaust a remedy if there were no reasonable prospects of success. It was very doubtful if it would be practicable to obtain legal aid in a situation such as the applicant's . There was no prospect that in the present state of the case law on habeas corpus the applicant could persuade a Legal Aid Committee that he had a reasonable case in seeking review by a court of his present condition . There was a distinction between the unfettered discretion which the Home Secretary had in the case of a restricted mental patient and a discretion with fetters on it such as that considered in the re H .K. case, where the criteria for exercising the discretion had been laid down by statute . In the case of a mental patient there was no power of any court to look at the fairness with which the Home Secretary exercised his discretion. The habeas corpus proceedings in Application No . 6998/75" showed that the court did not evaluate the material justification for the decision to recall the applicant . ' R . v. Governor of Risley Prison, experte Wajid Hemen, 119781 2 AII E .R . 123 . R. v. Governor of Leeds Prison, ex perre Stafford, 11989) 1 All E .R. 610 . See D .R . 8/106. - 60 - Where Parliament gave a minister authority to make a decision, it could expressly provide a right of appeal to a court or it could give the minister complete and unfettered discretion . The Home Secretary had such discretion under S .66 of the 1959 Act . It had not been Parliament's intention to allow judicial review, and the courts could not substitute their own decision for that of the Home Secretary . The Hosenball case, recently decided by the House of Lords, showed that the courts could not review an absolute discretion of a minister. The decision could only conceivably be overturned where the minister acted in bad faith and maliciously or intentionally tried to thwart the purposes of the Act. It was not suggested that that was the case here . A close reading of the Padfield case revealed that the court said that the minister could not act contrary to what was intended by Parliament in the statute . In this case what the Home Secretary was doing was fully in accordance with his powers under law, but the domestic law clearly violated Art . 5 of the Convention. The Home Secretary had made no error in law . He had absolute discretion and could use variables which were not appropriate under the Convention . The applicant impugned S5 .65 and 66 of the 1959 Act, not the way the Home Secretary acted . The Government had referred to no precedent involving the detention of a mental patient . There was only a tenuous, speculative and academic connection between the cases they had referred to and that of the applicant . It could not be realistically said that the applicant had not exhausted domestic remedies. More- over the remedies referred to did not provide the effective review envisioned by Art . 5 141 . Since the 1959 Act had been passed, no patient had had an effective review using the procedures suggested by the Government . The overriding principle of Art 5 was the right to liberty . A person could not be deprived of his liberty unless three conditions were met . The deprivation must be in accordance with a procedure prescribed by law and the detention must be lawful throughout . This must concern something other than procedural lawfulness . Most critically, the detention must throughout fall into one of the categories authorised in Art . 5 111 lal to Ifl . Each of those six conditions was by its nature limited in point of time . If they were not limited there would be no reason why a person could not be detained for ever if the condition had been present initially. Once the condition ceased to exist the detention was unalwful . Art . 5 (1) lal did not mean that detention would remain lawful indefinitely no matter what the crime or criminal record . Detention under Art . 5 111 lal which was clearly disproportionate to the nature of the offence would be inhuman and degrading. The applicant's case was not analogous to that of a person serving a life sentence, which could be imposed only for certain very grave offences . No court could have given him anything approaching a life sentence . The Govern- ment must therefore rely on Art . 5 111 lel to justify his detention . Like all the conditions referred to in Art. 5 (1), unsoundness of mind was subject to change . It must last throughout the period of detention . - 61 - Under Art . 5(1 ) (e) a prima facie case of mental ill-health must be shown and the detention must also be necessary. Was it too much to ask, when liberty was at stake, that detention be necessary ? It would be unjust to detain a person if care or treatment could eftectively be given in the community and it was generally recognised that such treatment was preferable whenever possible . The detention must be necessary not only initially, but throughout . The requirement that unsoundness of mind should conlinue throughout the period of detention meant, as the Government seemed to recognise, that there must be a determination or review at reasonable intervals to show that the person continued to be of unsound mind . Art. 5(1 ) did not specify the kind of review, but it must be reasonable . It would be unfair to have the detaining authority as the decision maker . There must be a genuine review of the question of unsoundness of mind . The criteria to be considered were medical ones . Para . 68 of the Court's Judgment in the Vagrancy Cases' showed the type of review (though not the body) necessary . The Court asked whether the criteria applied were compatible with the usual meaning of the term "vagrancy" and whether the criteria had been applied correctly . If these two conditions were not met, the detention would be arbitrary and unlawful . The question was whether the review by the Home Secretary met this standard. Was it on medical criteria ? The Home Secretary was under no legal obligation, and in practice did not, release a person of unsound mind if he considered that there would be a danger to the public . The Home Secretary might thus refuse to release a person who was considered by the Mental Health Review Tribunal or his Responsible Medical Officer to be of sound mind . The Hospital Advisory Service Report recognised this . Furthermore, whilst the criteria used by the Home Secretary were not necessarily medical criteria, and in fact Ilew in the face of medical criteria, the most condemning point was that he had no criteria at all . Under S66 of the 1959 Act it was completely within his discretion whether or not to release a patient or accept the advice of the Tribunal or RMO . The Commission could not really look to see whether the criteria applied were compatible with the usual meaning of the term "unsoundness of mind" . The Court had also considered in the Vagrancy Cases whether the criteria had been applied correctly . This implied that the Commission might, in an appropriate case, review the question whether in fact a person was of unsound mind . In this respect the applicant referred to the medical reports which had been produced As to the applicability of Art . 5(4) subsequently to the initial decision, the applicant referred to the separate opinion of Judge Zekia in the Vagrancy Cases and the Commission's decisions in Applications Nos . 6692/74 and 6859/74 against Belgium" as showing that it applied. The Home Secretary was not a court as Art . 5(4) required, nor was the Menial Health Review Tribunal, which was merely an advisory body . ' Eur . Court H .R ., Senes A, Vol . 12 . tkcisions and Reports 2, p . 108 and 3 p . 139 . - 62 - With reference to the questions put by the Commission, the applicant submitted that it a person was detained because of his mental condition and need for treatment, his confinement would not be lawful if the treatment was not forthcoming . The applicant submitted that in considering the applicability of Art . 5(4) in the Vagrancy Cases (para . 76), the Court had not been referring to the continuing detention but had merely held that where the initial detention was ordered by a court there was no need tor an appeal in terms of that initial detention . Art 5 (4) required a review of the substantive justification for the detention and not merely a review of the procedural formalities . As to the nature of the proceedings before a Mental Health Review Tribunal the applicant agreed with the respondent Government's submissions in most respects. He stressed, however, that the tribunal was not independent of the executive . In restricted cases questions of procedure and other matters were often referred to the Home Secretary . The efficacy of the tribunal's review was doubtful in view of the frequency with which its recommendations were rejected . The figure of 31 .6% rejection of recommendations for discharge given by the Government applied to all decisions since 1961 . In recent years such rejections had been more frequent, namely 59% in 1972, 40% in 1973, 46% in 1974 and 31°/u in 1975 . When the tribunal recommended discharge it did so on the basis of comprehensive medical evidence . It seemed unfair that the Home Secretary, without hearing witnesses or giving reasons, should reject the recommendations in so many cases . A court as specified in the judgment in the Neumeister Case, i.e. a body independent of the executive and the parties to the case, did not have to be unduly formal . Mental Health Review Tribunals in non-restricted cases provided the perfect example of the expediency and appropriateness of having a court deal with the questions of detention and unsoundness of mind . It was inconceivable that the Home Secretary could keep the cases of mental patients under constant review . The Home Secretary only looked to see whether a restricted patient should be released when he got a positive recommendation frôm one of his advisory bodies . He did not in fact supervise them . Whilst at first sight it might seem reasonable that the Home Secretary should be able to detain somebody on the ground that he was a danger to the public, there was no evidence that ordinary offenders who were released from prison were less dangerous than abnormal offenders . The Butler Report, for instance, suggested that if anything an ordinary offender was more dangerous . There were no corresponding powers of detention and recall in their case . Summarising the argument, the applicant submitted that all the conditions authorising detention under Art . 5(1) had an implicit limit of time and therefore there should be a periodic determination at reasonable intervals to assess whether the cause or condition had ceased . Art . 5(1) (e) might rule out the Hom e - 63 - Secretary as ari appropriate body by implication but in any event ruled him out because of how he decided . The criteria applied were not related to the purpose of detention . Art . 5 (4) ruled out the Home Secretary because of who he was regardless of how he decided . Even in a"proper casé', where there was substantial medical evidence that a person was not of unsound mind, the Home Secretary would still be acting within the policy of the 1959 Act if he refused to release him on the ground that he considered him a danger to the public, but without giving other reasons . The Home Secretary at times took into account political considerations . In 1972, after a particularly violent crime when the Home Secretary was under political pressures, the level of discharges had dropped greatl y As to whether the applicant himself had a "proper case", he had been convicted for a minor offence and detained for a long period . The Home Secretary refused to release him or give reasons for not doing so . On the question of danger, the applicant had had no previous criminal record . There was some ambiguity in the interpretation of the word "lawfulness' in Art. 5 (4) . It was not procedural lawfulness but it was not clear whether it meant lawfulness in domestic law or substantive justification. The overriding principle of the Article should take precedence, namely the right to liberty . Even if Art . 5 141 only related to strict lawfulness it was doubtful if there was an effective review, in view ot the difficulties of obtaining legal aid and arguing the vagaries of the law . This was not the type of review, whatever view was taken of Art . 5 (4), which the Convention was seeking to promote . THE LAW 1 . The Commission has first examined the applicant's complaint that, in June 1974, he was refused permission to send a telegram to his parents and has considered whether this discloses any appearance of a violation of his rights under Art . 8 of the Convention . Art 8 111 of the Convention provides that :"Everyone has the right to respect for . . . his correspondence" . However, the applicant was not prevented from corresponding with his parents since he could have communicated with them by letter. There is no indication that he was restricted in writing to them in any way. It is true that he was not allowed to communicate by telegram a message which appears to have had some degree of urgency, in that the applicant apparently wished to arrange for the postponement of a court hearing fixed to take place one week later. The Commission sees no reason to suppose that this communication could not have been made by letter within the time available. Moreover, apart from that possibility the .applicant was in fact able to give the message to his mother in person when she visited him two days later, on one of her regular visits. This allowed her sufficient time to arrange the postponement which the applicant desired . - 64 - In these circumstances the Commission finds, even assuming that a telegram falls within the meaning of the term "correspondence" in Art . 8(1 ) , that the refusal to allow the applicant to send the telegram is not shown to have interfered materially with his ability to correspond with his parents . It accordingly finds this complaint to be manifestly ill-founded within the meaning of Art . 27 (2) of the Convention . 2. The Commission has next examined the applicant's complaint that the conditions of his detention and treatment in Broadmoor Hospital from 19 Decem- ber 1973 onwards have involved a violation of his rights under Art . 3 of the Convention which prohibits inter alia inhuman and degrading treatment . The applicant has suggested that it is unnecessary for him to be detained in Broadmoor . He has submitted that he has not received any treatment there, that he has had only very limited contact with his responsible medical officer and that the necessity for treatment has not been explained to him . He has also complained of the conditions in the hospilal and in particular has alleged that the hospital is grossly overcrowded, that there is lack of privacy and a constant atmosphere of violence, that the conditions are insanitary, that the fire pre- cautions are inadequate and that he is or has been under-occupied, leading to a process of institutionalisation . The respondent Government have denied that there has been any violatio n of Art . 3 in the applicant's case . They have submitted that his detention in Broadmoor was considered necessary by those treating him and by the Mental Healih Review Tribunal . They have submitted that the applicant has refused all attempts to institute meaningful treatment . Whilst accepting that the hospital is overcrowded and that conditions there are in some respects unsatisfactory, they have submitted that the conditions are not such as to give rise to any question under Art . 3 of the Convention and that this part of the application is therefore manifestly ill-founded . The respondent Government has also submitted that this part of the application is inadmissible for non-exhaustion of domestic remedies under Arts . 26 and 27 131 of the Convention . They have submitted that if the matters complained of fall within the category of conduct prohibited by Art . 3 , which they deny, remedies would be available to the applicant . It would be open to him to institute proceedings for damages or for a declaration that the conditions he complained of contravened the law of tort . The applicant, on the other hand, has denied that any remedy is available to him. He has submitted that before damages can be recovered it is necessary to show that physical injury or illness has been suffered . He has submitted that there would also be no reasonable prospect of success in civil proceedings, in particular because of practical difficulties arising from his situation as a detained mental patient without financial means . The Commission has therefore first considered, in the light of its own and the Court's previous case-law, whether the applicant's complaints under Art . 3 of - 65 - the Convention are inadmissible on the ground that he has not exhausted the remedies referred to by the Government . It recalls that it has previously held that in order to comply with the requirements of Art. 26 of the Convention an applicant is obliged to make "normal use" of remedies "likely to be effective and adequate" to remedy the matters of which he complains . (See : Application No. 788 160, Austria v. Italy, Yearbook IV, p . 172 ; Application No. 4330/69, Simon-Herold v. Austria, Yearbook X/V, p . 352 ; Applications Nos. 5577-5584/72, Donnelly and others v. the United Kingdom, Decisions and Reports 4, p. 4 at p. 64) . The European Court of Human Rights has held that Art . 26 demands the use only of such remedies as are " . . . sufficient, that is to say capable of providing redress for (the) complaints" . (See e .g . The Vagrancy Cases, Series A, No. 12, p. 33, para. 60 l . At the same time the Commission has consistently held that the mere existence of doubts as to the prospects of success of a given remedy does not absolve an applicant from exhausting it, since it is for the domestic courts to determine the matter in the first instance . ISee e .g . Application No. 772/60, RET/MAG v. the Federal Republic of Germany, Yearbook IV, p . 384, Col%ction of Decisions 8, p. 29 ; Application No. 1661/62, X and Y v. Be/gium, Yearbook Vl, p. 360, Collectton of Decisions 10, p . 201 . The applicant's complaints under Art . 3 of the Convention are concerned primarily with the alleged inadequacy of the facilities provided for his detention and treatment as a person considered to be suffering from mental illness necessitating treatment in some degree of security They arise very largely from the admitled state of overcrowding in secure mental hospitals, and Broadmoor Hospital in particular. The applicant does not complain that he has suffered injury, illness or material loss . The respondent Government have accepted that there is no direct precedent in the English law of tort for an award of damages in such circumstances . Since the effects which the applicant alleges he has suffered consist primarily in various forms of mental distress, such as boredom and fear, it appears to the Commission that any such award would involve a material change in established domestic cas-law referred to by the applicant . In any event the Commission is not satisfied that either an award o f damages or a declaration could reasonably have béen expected to provide sufficient redress for the applicant's complaints, given that no alternative accom- modation considered suitable for his continuing detention has apparently been available . In these circumstances the Commission finds that it has not been estab- lished that any remedy existed in United Kingdom law which was capable of providing redress for the applicant's complaints under Art. 3 and which has not been exhausted. These complaints cannot therefore be rejected for non- exhaustion of domestic remedies . The Commission has next considered whether the applicant's complaints under Art. 3 are manifestly ill-founded within the meaning of Art . 27 121 of the Convention . The physical conditions in Broadmoor Hospital are admittedly un- -66- satisfactory and have been criticised by different official bodies over a number of years. Whilst the hospital staff may themselves, as the Government have submitted, do their best to cope with these inadequacies, this does not itself exclude the possibility that the physical conditions of detention could in them- sevies give rise to a question under Art . 3 The Commission considers that the applicant's different allegations concerning the conditions of his detention and the question ol his medical treatment must be looked at together and, if so examined, raise issues under Art . 3 which require investigation and examination on the merits . They cannot therefore be described as manifestly ill-founded . Accordingly the Commission considers these complaints to be admissible . 3. The Commission has finally considered the issues which arise under Art . 5 of the Convention . It observes that a question first arises as to whether the applicant's detention in Broadmoor is justified under Art . 5(1 ) of the Convention, either on the ground that he is lawfully detained "after conviction by a competent court" as authorised by Art . 5(1 ) (a) or on the ground that his detention is lawful detention of a person "of unsound mind" as authorised by Art . 5(1 ) lel . Secondly the question arises whether the provisions of Art . 5(4) of the Convention have been complied with . This provides that everyone deprived of his liberty is entitled "to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful" . The respondent Government have denied that there has been any violation of Art. 5. They have also submitted that the applicant has failed to exhaust certain domestic remedies available to him in respect of his complaints under Art. 5 and that this part of the application is therefore inadmissible for non- exhaustion of domestic remedies . They have submitted that it would have been open to the applicant to challenge his continued detention by applying for one or more of the prerogative writs habeas corpus, cerrrbrari; prohibition or mandamus . The applicant has denied that these remedies would have been effective The Commission observes that it will be called upon to examine the scope and effectiveness of the review provided by the above-mentioned procedures in its examination on the merits of the issues arising under Art 5 in Application No. 6998/75, which it has declared admissible . It accordingly considers it appro- priate to adjourn its consideration of the question of the effectiveness of these procedures as remedies in the present case, pending further examination of Application No. 6998/75 . For these reasons, the Commission : DECLARES INADMISSIBLE the applicant's complaint that he was refused permission to send a telegram ; - 67 - 2. DECLARES ADMISSIBLE, without prejudging the merits, the applicant's complaints concerning the conditions of his detention and the question of medical treatment in Broadmoor Hospita l 3. ADJOURNS its consideration of the issues arising under Art . 5 of the Convention pending further examination on the merits of Application No .6998/75' . (TRADUCTION ) EN FAIT Les faits de la cause présentés par les parties et apparemment incontestés peuvent se résumer comme suit : Le requérant est né le 28 février 1950 . II réside normalement à F ., mais il est actuellement détenu à l'hôpital de Broadmoor . II a été représenté d'abord par ses parents, M. et Mme A .X ., et il est maintenant représenté par Me G ., avocat à New-York, et Me M ., solicitor, l'un et l'autre du Legal and Welfare Rights Service de MIND (National Association for Mental Health), Londres . Le 30 novembre 1973, le requérant ayant été reconnu coupable de plusieurs délits d'escroquerie, la Crown Court de L . a ordonné qu'il soit détenu à l'hôpital de Broadmoor en vertu de l'article 60 de la loi de 1959 sur les malades mentaux (Mental Health Act, 1959) et que sa libération soit soumise à restriction, en vertu de l'article 65 de cette loi, sans limitation de temps . L'article 60 de la loi de 1959 autorise dans certaines circonstances les tribunaux à ordonner la détention d'un condamné dans un hôpital psychiatrique . L'article 65 habilite une Crown Court à ordonner que l'élargissement de cette personne soit soumis à des restrictions (consistant essentiellement à confier au Ministre de l'Intérieur la responsabilité des décisions d'élargissement) pour un temps limité ou illimité. Le Ministre de l'Intérieur est habilité par l'article 66 de la loi é révoquer une ordonnance rendue en vertu de l'article 65 lorsqu'il le juge bon . L'hôpital de Broadmoor est un a hbpital spécial » constitué (â l'heure actuelle) conformément aux dispositions de l'article 40 de la loi de 1973 sur la réorganisation des services nationaux de santé publique, qui oblige le Secrétaire d'Etat aux services sociaux à fournir et é entretenir des établissements pour les personnes soumises à la détention en vertu de la loi de 1959 qui, selon lui, nécessitent un traitement dans des conditions de sécurité spéciales en raison de leurs tendances dangereuses, violentes ou criminelles . See D .R . a/106 . - 6B - Aprés une période de détention provisoire à la prison de L ., le requérant a été transféré, le 19 décembre 1973, à l'hôpital de Broadmoor où il se trouve encore détenu . Le requérant a demandé l'autorisation d'interjeter appel contre la peine . Sa demande a été soumise en juillet 1974 à la cour d'appel, qui l'a rejetée . Peu après, le requérant s'est vu refuser par le personnel hospitalier l'autorisation d'envoyer un télégramme à ses parents . L'article 66 de la loi de 1959 dispose que le Secrétaire d'Etat peut soumettre le cas d'un malade faisant l'objet de restrictions en vertu de l'article 65, à une commission psychiatrique de réexamen pour avis . En outre, sur demande du malade, il doit procéder à cette consultation dans les deux mois, à moins de libérer le malade . Le malade peut présenter une telle requête au cours de la deuxiéme année de son séjour à l'hôpital, puis une nouvelle requ@te au cours de chaque période de deux ans à l'issue de la deuxième année . La commission de réexamen ne peut pas ordonner l'élargissement d'un malade, mais elle fournit un avis au Secrétaire d'Etat . Le cas du requérant a été examiné par une commission psychiatrique de réexamen en mars 1975, puis à nouveau en décembre 1976 . Le premier examen s'est fait à la demande du requérant . La deuxiéme fois, le Secrétaire d'Etat a soumis le cas de son propre chef à la commission de réexamen . Plaintes initiales du requérant Dans sa requête, le requérant a formulé plusieurs griefs concernant la procédure judiciaire dans son affaire, le refus d'autorisation d'envoyer un télé- gramme, les rapports médicaux établis par les médecins chargés de son cas, les conditions de sa détention et la procédure devant la commission psychiatrique de réexamen en mars 1975 . En particulier, le requérant se plaint qu'on lui air refusé l'autorisation de prendre contact d'urgence avec ses parents (par télégramme) au sujet de son recours, aprés le retrait en derniére minute des solicitors agissant en son nom . II a également allégué que les conditions dans lesquelles il avait été détenu à l'hôpital de Broadmoor depuis le 19 décembre 1973 constituaient une violation de l'article 3 de la Convention . Il a soumis une déclaration sur les conditions de vie à Broadmoor, qui sont également évoquées dans d'autres documents soumis avec sa requéte . Il a déclaré avoir été détenu dans des « conditions d'extréme misére » et allégué que Broadmoor,était gravement surpeuplé et manquait d'installations sanitaires nécessaires . Il a allégué en particulier la saleté des toilettes et le manque d'installations pour se laver . Il a exposé qu'il devait vivre constamment en compagnie d'assassins, de violeurs, d'incendiaires, de pervertis sexuels et autres aliénés, qu'il régnait en permanence une atmosphére de violence . Dans les dortoirs les lits n'étaient séparés que de quinze à trente centimétres, les lumières d'observation restaient allumées toute la nuit, les malades gravement agités se - 69 - mettaient parfois à créer du désordre la nuit, à crier et à hurler et l'air des dortoirs était rare et putride, la plupart des fenêtres étant hermétiquement fermées . II a allégué qu'il n'y avait aucune vie privée et peu d'occasions de prendre l'air ou de faire de l'exercice . Dans sa requête, il a déclaré n'avoir reçu aucune espéce de soins depuis son séjour à Broadmoor, ce qui lui paraissait démontrer tout d'abord qu'il n'avait pas besoin de soins psychiatriques . Il a ajouté qu'en juillet 1975 un traitement lui avait été offert, qu'il l'avait refusé et qu'en novembre 1975 le médecin responsable avait indiqué qu'il lui fallait chaque mois des piqûres de « Modicate » . Ce médicament a divers effets secondaires qui n'ont pas été expliqués au requérant ou à ses parents et l'affirmation du médecin responsable déclarant ce médicament néces- saire parce que le requérant était sujet à de violents éclats n'a pas été soutenue par des preuves . En outre, en juillet et en novembre 1975, le médecin responsable l'a incité à engager une action judiciaire contre lui pour des déclarations prétendument fausses sur le requérant et sa famille . Le requérant a également indiqué qu'on n'avait pas suffisamment recours à ses services, que le train-train quotidien était ennuyeux, qu'il n'avait pas été préparé à un retour au monde extérieur et qu'il craignait de végéter . Il ressort de l'argumentation présentée par ses parents à la commission psychiatrique de réexamen en 1975 qu'ils avaient exprimé la crainte qu'il soit placé dans une institution et qu'il pitisse d'une incarcération permanente à Broadmoor . Ils ont aussi exprimé la crainte que l'apathie et le ressentiment ne se développent chez lui et que la réadaptation à la vie normale soit de plus en plus difficile à mesure que son séjour à Broadmoor se prolongerait . A l'appui de ses allégations, le requérant a cité le rapport intérimaire de la Commission des délinquants mentalement anormaux de Lord Butler, paru en juillet 1974. Dans le passage cité, cette commission s'est montrée étonnée et choquée par le surpeuplement à Broadmoor et elle a fait observer que dans certains quartiers l'intervalle entre les lits n'était pas supérieur à 45 centimètres et que les malades, réduits par l'absence d'armoire à se servir de leurs valises, n'avaient pas de vie privée . Elle a également constaté qu'une sous-commission de la Commission parlementaire de vérification des dépenses s'était déclarée « effrayée » par la situation qu'elle avait trouvée lors de sa visite à l'hôpital en 1967-68 . Le 10 septembre 1974 les parents du requérant ont écrit au Secrétaire d'Etat aux services sociaux pour se plaindre des conditions dans lesquelles le requérant était détenu et pour demander une enquête publique . Dans une réponse datée du 17 décembre 1974, le Ministère de la Santé et de la Sécurité sociale a notamment déclaré qu'il en était conscient et qu'il s'inquiétait depuis longtemps de la situation à Broadmoor, que cette situation était due principalement au fait que l'hôpital avait beaucoup plus de pensionnaires masculins qu'il n'avait été prévu lors de la construction et que les bâtiments étaient plus que centenâires, ce qui rendait impossible l'amélioration des salles d'eau et destoilettes ou des dortoirs . La seul e - 70 - vraie solution était la construction d'un nouvel hôpital spécial, dont l'ouverture était prévue en partie pour 1977 . Le Ministére a déclaré que cette partie de l'hôpital avait déjé été ouverte et qu'avant janvier 1975 environ 70 malades de Broadmoor y auraient été transférés . Le rapport final de la Commission Butler, paru en octobre 1975, indique que 70 malades de Broadmoor y ont été transférés et qu'elle a été avisée par le Ministére de la Santé et de la Sécurité sociale qu'il n'était pas envisagé de combler les vides ainsi créés. La Commission Butler a cependant déclaré que la surpopulation dans les hôpitaux spéciaux restait un probléme sérieux . Des détails concernant les autres griefs initialement présentés par le requé- rant figurent dans la décision panielle de la Commission sur la recevabilité de la requéte, rendue le 27 septembre 1976 . ' PROCÉDURE DEVANT LA COMMISSIO N La Commission a examiné la recevabilité de la requête le 27 septembre 1976 . Elle a décidé de porter celle-ci à la connaissance du Gouvernement défendeur en vertu de l'anicle 42, § 2(b ) , de son Réglement intérieur et de lui demander de soumettre des observations écrites sur la recevabilité en ce qui concerne : a. le grief du requérant selon lequel on lui avait refusé l'autorisation d'envoyer un télégramme, dans la mesure où il peut soulever une question touchant à l'article 8 de la Convention seulement ; b. le grief du requérant selon lequel les conditions de sa détention et de son traitement à l'hôpital de Broadmoor à partir du 19 décembre 1973 auraient constitué une violation de l'article 3 de la Convention, eu égard à la prétendue absence de vie privée à l'hôpital de Broadmoor et aux autres plaintes présentées par le requérant ; c. quant aux griefs du requérant relatifs à la procédure devant la commis- sion psychiatrique de réexamen, la question de savoir si les recours dont disposait le requérant en vertu de la loi de 1959 sur les malades mentaux ou de tout autre texte étaient ou non conformes aux exigences de l'article 5, § 4, de la Convention . La Commission a ajourné son examen de la requête .sur ces points et déclaré le reste de la requête irrecevable . Les observations du Gouvernement défendeur ont été soumises le 23 novembre 1976. Les observations du requérant en réponse ont été reçues le 4 février 1977 . Le 4 mars 1977, la Commission a décidé, conformément à l'article 42, § 2 in fine, de son Réglement intérieur, d'inviter les parties à comparaitre devant elle pour présenter leur argumentation orale sur la recevabilité et le fond de la requéte, dans la mesure où elle pose des questions touchant aux articles 3 et 5 de l a Non publiée . - 71 - Convention . Elle a demandé aux parties de traiter dans leur argumentation certaines questions relatives aux articles 3, 5§§ 1 et 4 et 26 de la Convention . Elle a décidé d'entendre en même temps les argumentations sur la recevabilité-et sur le fond de trois autres requêtes dirigées contre le Royaume-Uni INos . 6840/74, 6998/75 et 7099/751 qui posent des questions connexes' . La Commission a également décidé d'informer les parties à la présente procédure qu'elle ne demandait pas de nouvelle'argumentation sur le probléme posé par l'article 8 de la Convention . L'audience devant la Commission a eu lieu les 11 et 12 mai 1977 . ARGUMENTATION DES PARTIES Le refus de l'autorisation d'envoyer un télégramme - Article 8 a Argumentation du Gouvernement défendeur Dans ses observations écrites, le Gouvernement a déclaré qu'il était d'usage à l'hôpital de Broadmoor de ne permettre aux malades d'envoyer un télégramme que dans des circonstances exceptionrielles, par exemple une grave crise familiale . Cet usage a pour but d'empècher une aggravation de la surcharge déjà forte des lignes téléphoniques et d'épargner aux messagers l'inconvénient•d'avoir à se rendre inutilement à la poste du village . Les parents du requérant lui avaient rendu visite trois fois par semaine et notamment au début de l'aprés-midi du 11 juin 1974 . Aprés leur visite, le requérant a trouvé dans son courrier une leitre de la cour d'appel . Il a demandé à envoyer un télégramme . Comme le personnel prévoyait une nouvelle visite de ses parents le 13 juin ivisite qu'ils ont d'ailleurs faite), il a estimé que l'urgencen'était pas de nature à justifier l'envoi d'un télégramme . Le requérant pouvait écrire~une lettre . La Commission, dans sa décision partielle, n'a trouvé aucun élément indiquant que le requérant ait été géné pour préparer la présemation de son dossier devant la cour d'appel . En ce qui concerne l'article 8 de la Convention, le Gouvernement a déclaré que le.requérant avait disposé de facilités en ce qui concerne :les visites. Deux de ses trois visites hebdomadaires comprenaient vingt minutes-de promenade .surla terrasse Quant au droit au respect de la correspondance, ibn'est pas .certain~qu1l s'applique aux télégrammes et le Gouvernement a réservé sa position sur ce point. En tout cas, rien n'empPchait le requérant d'envoyer une lettre puisqu'iln'y avait pas urgence et qu'il pouvait écrire ou communiquer en personnepeu :après . Dans le cas d'une personne privée de liberté, l'article 8, § 1 en combinaison avec l'article 8, § 2 n'accorde pas une liberté illimitée de la correspondance ni quant au choix du moyen de correspondance ni quant à l'accès à un autre moyen de communication . Les faits ne révélentaucun manquemént•aua respect » de la vie familiale et dela correspondance du requérant au sens de. l'article 8 etrce griéf est par conséquenl mal fondé . ' Cf . D.R. 8 p . 106 et D .R. 10 p . 5. _72_ b . Argumentation du requérant Dans ses observations écrites en réponse, le requérant a déclaré qu'en juin 1974 les solicitors agissant en son nom avaient soudainement mis fin à leur mandat . Il avait dù trouver de nouveaux solicitors et un nouvel avocat . Vers 16 heures 30, l'aprés-midi du 11 juin 1974, après la visite de sa mére, on lui a remis une lettre de la cour d'appel déclarant que sa cause serait entendue le 18 juin 1974. II a immédiatement demandé la permission d'envoyer un télégramme à ses parents envue d'oblenir que l'audience soit remise jusqu'A désignation d'un nouveau représentant . Les infirmiers et mème, le 12 juin 1974, son médecin responsable luiont refusé cette permission . Il a donc été empèché de communi- quer avec ses parents par télégramme sur une affaire urgente et importante . Les autorités hospitaliéres étaient insuffisamment informées pour juger valablement de l'urgence de la situation et elles n'ont pas tenu compte de 'I'explication du requérant . En tout cas, elles ont violé l'article 8 en empêchant le •requérant d'envoyer le télégramme, quelle que soit son urgence . Le requérant ne pouvait pas être certain que ses parents lui rendraient à nouveau visite le 13 juin. Ils avaient un voyage long et difficile à faire . Leur visite aurait pu être ajournée, d'autant plus qu'ils ne savaient pas que le requérant ,voulait les voir d'urgence . Il était trop tard le 11 juin pour envoyer une lettre et s'il avait écrit le lendemain, la lettre ne serait pas parvenue à ses parents avant le 13 juin au .plus tBt . De fait, sa mére a quitté son logement le matin du 13 juin