Resolution CM/ResDH(2009)53[1]
Execution of the judgment of the European Court of Human Rights
Magalhães Pereira No. 2 against Portugal
(Application No. 15996/02, judgment of 20 December 2005, final on 20 March 2006)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment in this case, transmitted by the Court once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the failure to review speedily the lawfulness of the applicant’s confinement in a psychiatric clinic (violation of Article 5§4)(see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that, within the time-limit set, the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix);
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures, preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2009)53
Information about the measures to comply with the judgment in the case of
Magalhães Pereira No. 2 against Portugal
Introductory case summary
The case concerns the failure to review speedily the lawfulness of the applicant’s confinement in a prison psychiatric clinic (violation of Article 5§4). The review should, according to domestic law, have taken place on 20/01/2002 at the latest, but only took place on 24/05/2002, because the applicant’s medical examination could be conducted only on 11/04/2002. The prison psychiatric clinic where the applicant was confined explained that due to the shortage of staff it could not conduct the medical examination of the applicant. As to the Institute for Forensic Medicine, to which the judge then wrote, it said that it was unable to perform the examination as its annual “ceiling”, set by domestic legislation for this kind of examinations, had been exceeded.
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
3 000 euros
2 500 euros
5 500 euros
Paid on 15/06/2006
b) Individual measures
The applicant was released on 24/05/2002. The damage he suffered on account of the late review of the lawfulness of his detention in the prison psychiatric clinic was compensated by the just satisfaction awarded by the European Court. No other individual measure appears necessary.
II.General measures
The European Court’s judgment raised two main questions: the shortage of staff at the prison psychiatric clinic, and the legal “ceilings” applying with respect to the number of examinations which may be carried out per year by one expert (six per expert). These ceilings prevented the Institute for Forensic Medicine (IFM) from carrying out the examinations needed. The applicant’s medical examination in the present case was finally done by the psychiatric hospital of Oporto.
As far as the shortage of staff at prison psychiatric clinics is concerned, Law No. 45/2004 on the legal system of forensic judicial examinations provides that courts may request examinations and legal-psychiatric evidence from the IFM branch in the court district (Article 24). When the local branch does not have enough psychiatrists to respond to all requests, it can ask the specialised services of the National Health System to carry them out. The capacity of several regional offices of the IFM has been recently increased to limit the requests to the hospitals of the National Health Service. The renovation of the Lisbon office has allowed the creation of a Department for Forensic Psychiatry; additional psychiatrists have been recruited for the office in Coimbra; and the establishment of a Department for Forensic Psychiatry Oporto is anticipated.
Moreover, the government recalled that the Directorate General of Custodial Services has at its disposal psychiatrists who can intervene in other prison clinics than those where they practice, so that they are not affected by the incompatibilities applying to the psychiatrists of the prison clinic where the detainee is located. The lists of these psychiatrists have been transmitted to the IFM so that it may rather assign examinations to these doctors than to the hospitals of the National Health Service.
As regards the legal “ceilings” for the number of examinations which may be conducted per expert per year, Decree-law No. 50/2007 modified the legislation in force (Decree-law No. 326/86), abolishing the ceiling of six examinations per expert and giving priority to the examination of persons detained in consequence of security measures or other measures depriving them of their liberty (article 3§2).
Moreover, Law No. 45/2004 provides the possibility to pay doctors or experts who conduct the forensic medical examination directly. Until then, they received no remuneration for the examinations they conducted, which is probably why they often refused to do so, especially if they had already reached their annual “ceiling” when this was still in force.
The European Court’s judgment has been translated and made available on the Internet site of the Cabinet of Documentation and Comparative Law (), which is under the competence of the Prosecutor General of the Republic.
III.Conclusions of the respondent state
The government considers that the consequences for the applicant of the violation of the Convention found by the European Court in this case have been remedied, that no further individual measure proved necessary, that the general measures adopted will prevent new, similar violations and that Portugal has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 April 2009 at the 1051st meeting of the Ministers’ Deputies
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