Quality of the legal representation of a person who risks involuntary confinement for reasons of mental health

M.S. v. Croatia (no. 2)

In the judicial proceedings concerning the prolongation of the applicant’s confinement, the court appointed a legal-aid lawyer to represent her interests. The lawyer did not visit the applicant during the proceedings to hear her arguments concerning the involuntary confinement. At no stage was she advised of the procedure and the most appropriate course of action to follow. The lawyer, although present in court, did not make any submissions on the applicant’s behalf. Although aware of the lawyer’s lack of involvement, the court, without hearing the applicant, ordered her continued confinement.

The applicant contended, among other things, that she had been unlawfully and unjustifiably confined to the hospital, and that the judicial decision ordering her confinement had not been accompanied by adequate procedural safeguards.

The Court found a breach of Article 5 § 1 of the Convention. The Court stressed that the mere appointment of a lawyer, without that lawyer actually providing legal assistance in the proceedings, could not satisfy the requirements of necessary “legal assistance” under Article 5 § 1 (e) for persons confined as being of “unsound mind”.

Although the domestic authorities were well aware of the professional failings of the lawyer, they had failed to react to the applicant’s complaints and to take the necessary action to address the matter.


Proceedings for extradition with a view to prosecution in the requesting State (Article 5 § 1 (f ))

Gallardo Sanchez v. Italy

The applicant, Manuel Rogelio Gallardo Sanchez, is a Venezuelan national. On 19 April 2005 Mr Gallardo Sanchez was placed in detention, with a view to his extradition, by the Rome police in execution of an arrest warrant issued by the Greek authorities. On 22 April 2005 the Aquila Court of Appeal confirmed the arrest and ordered Mr Gallardo Sanchez to be kept in detention. He was extradited to Greece in October 2006.

The applicant complained before the European Court of the length of his detention pending extradition.

The Court found a breach of Article 5 § 1. Its reasons for doing so are noteworthy as they represent a development in the case-law under sub-paragraph (f ) of that provision. It was necessary to distinguish between two forms of extradition in order to specify the level of diligence required for each. These were extradition for the purposes of enforcing a sentence and extradition enabling the requesting State to try the person concerned. In the latter case, as criminal proceedings were still pending the person subject to extradition was to be presumed innocent; furthermore, at that stage their ability to exercise their defence rights in the criminal proceedings for the purposes of proving their innocence was considerably limited, or even non-existent; lastly, the authorities of the requested State were debarred from undertaking any examination of the merits of the case. For all those reasons, the protection of the rights of the person concerned and the proper functioning of the extradition proceedings, including the duty to prosecute the individual concerned within a reasonable time, required the requested State to act with special diligence.

The applicant had been placed in detention pending extradition in order to enable the Greek authorities to prosecute him. On the facts of the case, and having in mind the reasons for Greece’s extradition request and the periods of delay in complying with that request – which were attributable to the Italian authorities – the Court concluded that there had been a breach of Article 5 § 1.