TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 51

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detention may cease to exist, this category of deprivation of liberty under Article 5(1)(e), by its very nature, requires periodic judicial review under Article 5 (4) (Winterwerp judgment, paras. 39 and 55).

On the other hand, Article 5(1)(a) is a mere formal requirement which justifies the detention of a person convicted by a competent court. The detention is ordered as a retributive punishment for the Immutable fact that the person concerned has been found guilty of an offence. Therefore the grounds on which the decision to convict and sentence were taken are not, unlike the case of a person of unsound mind, subject to change during detention. It is true that clemency may be shown by the detaining authority but this does not affect the lawful basis for

The supervision of the lawfulness of such detention under Article 5(4) is incorporated at the outset in the criminal trials and possible appeals, as when the applicant was convicted and sentenced to life imprisonment with the possibility of immediate appeals against the lawfulness thereof. The applicant's present claim is not essentially a challenge to the lawfulness of her detention, but such an appeal for clemency concerning the sentence. The Commission considers, therefore, that the applicant cannot derive from Article 5 (4) of the Convention a right to release on licence or to judicial review of parole (ibid., pp. 228-229)."

86. However the Commission recalls its discussion above (paras. 65-70) concerning the very particular nature of the applicant's detention. Unlike the cases of Kotälla and X, the sentencing court recognised that the reasons necessitating detention might well have ceased to exist in the applicant's case. It is this crucial factor, which links the applicant's detention to his personality difficulties, that leads the Commission to assimilate the present case to that of the Van Droogenbroeck case.

87.

Accordingly, notwithstanding the fact that the applicant was detained under Art. 5(1)(a), and having regard to the seriousness of what is at stake, namely the possibility that the applicant will be, In effect, placed at the Government's disposal for the rest of his life, the Commission considers that it would be inconsistent with the object and purpose of Art. 5 to regard the applicant's detention as Immune from subsequent review of lawfulness.

88. As to the meaning of "lawfulness" in this context the Commission refers to the principles developed by the Court in the Van Droogenbroeck case. The "lawfulness" of an "arrest or detention" has to be determined in the light not only of domestic law but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Art. 5(1) (loc. cit., p. 26, at para. 48).

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