Brand v The Netherlands 49902/99 [2004] ECHR 196

Transfer from prison to a clinic was delayed for 14 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.

Related case

Morsink v The Netherlands 48865/99 [2004] ECHR 197 is an almost identical case.


The claimant was made subject to a prison sentence, to be followed by a 2-year "TBS order" (preventive detention in a secure institution becuase of dangerous mental disorder). Thus detention during the TBS order was under both Article 5(1)(a) and (e). His transfer from prison at the end of the prison sentence was delayed for 14 months. The domestic courts held that the continued detention in prison after the first 6 months was unlawful, and awarded damages. The ECtHR held that he remained a "victim" because there had been no such finding in relation to the first 6 months. For Article 5 purposes it was not enough for detention to be lawful under domestic law; it had to be shown not to be arbitrary.

The ECtHR had previously held that under Article 5(1) there must be some relationship between the ground of permitted deprivation of liberty and the place and conditions of detention - in principle for mental disorder the detention must be in a hospital, clinic or other appropriate institution.

However, immediate transfer from prison was not necessary. Since the prison sentence was punitive and the TBS order non-punitive, it was acceptable to start selecting a clinic only after the TBS order took effect. Immediate transfer to an identified clinic was not required, since for funding reasons there would not always be a placement available. A reasonable balance had to be struck between the competing interests - including the right to liberty (since a delay in commencing treatment under the TBS could increase the chances of having to extend it).

The lack of placements had been a known problem for 8 years and this was no exceptional case: therefore even a 6 month delay was not acceptable, and there had been a breach of Article 5(1). Damages of EUR 1500 were awarded for feelings of frustration, uncertainty and anxiety.

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