TNAG-1585-FCO40-2159-Hong-Kong-prisons-and-prisoners-1986 — Page 57

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9787/82

Partially Dissenting opinion of Mr. Danelius (joined by MM. Nørgaard, Jörundsson and Kiernan)

1. As regards Art. 5(1) of the Convention

While agreeing with the Commission's conclusion that there has been no breach of Art. 5(1) of the Convention, I do not find the reasons given by the majority in support of that conclusion to be quite satisfactory. The majority considers that the applicant's case falls to be distinguished from that of a person who has received a life sentence for the sole reason of the gravity of the offence he has committed and that the present case is analogous to the cases of habitual or recidivist offenders who are placed by order of a court at the Government's disposal and released when the authorities consider that they no longer pose a danger to society. It would follow from this reasoning that the applicant's redetention in 1977 could only be justified and consistent with Art. 5(1), if the applicant still posed, at that time, a threat to public safety.

In my opinion, there are no convincing reasons to make such a distinction between the applicant's sentence and other sentences of life imprisonment. I find it sufficient to note that the applicant was sentenced by a court in 1966 to life imprisonment, that he was released on licence in 1976, and that, on account of his acts during the time he was at liberty, his licence was revoked and he was recalled to prison in 1977 in order to continue serving his sentence. It follows, in my view, that the applicant's redetention after the revocation of his licence was based on his original conviction and sentence in 1966 and was therefore a lawful detention after conviction in the meaning of Art. 5(1)(a) of the Convention.

2.

As regards Art. 5 (4) of the Convention

Art. 5 (4) of the Convention grants to everyone who is arrested or detained the right to have the lawfulness of his detention determined by a court. It follows from the case-law of the European Court of Human Rights that when the decision to detain a person is made by a court at the close of judicial proceedings, the supervision required by Art. 5 (4) is incorporated in the decision (see judgment in the De Wilde, Coms and Versyp case, Series A, vol. 12, para. 76). On the other hand, it also follows from the Court's case-law regarding detention of persons of unsound mind that in connection with such detention provision should always be made for a subsequent review to be available at reasonable intervals, in as much as the reasons initially warranting confinement may cease to exist (see judgments in the Winterwerp case, Series A, vol. 33, para. 55, the case X. v. the United Kingdom, Series A, vol. 46, para. 52, and the Luberti case, Series A, vol. 75, para. 31). Similarly, the Court has considered that there should be a right to judicial review, at reasonable intervals, in regard to the detention of habitual or recidivist offenders, where such detention is a measure of relatively indeterminate duration and is designed to protect society against the