Venken and Others v. Belgium (European Court of Human Rights)

Information Note on the Court’s case-law 250
April 2021

Venken and Others v. Belgium – 46130/14, 76251/14, 42969/16 et al.

Judgment 6.4.2021 [Section III]

Article 34

Compensation of a sufficient amount covering the entire period of the applicants’ compulsory confinement in the psychiatric wing of a prison: loss of victim status; inadmissible

Article 3
Degrading treatment

Compulsory confinement of mentally-ill offenders for a significant period in the psychiatric wing of a prison without hope of change and without appropriate medical support: violation

Facts – The applicants had been placed in compulsory confinement in the psychiatric wings of ordinary prisons, where, they alleged, that they did not receive therapeutic treatment that was adapted to their mental-health condition; they also submitted that no effective remedy had been available to them.

The applicants are now all residents in an institution that is in principle suited to their psychiatric condition; they do not dispute that they are receiving appropriate treatment therein.

Law – Article 3 (substantive limb) and Article 5 § 1

1.  Pilot procedure and subsequent developments – In its 2016 pilot judgment W.D. v. Belgium, the Court had encouraged the Belgian State to take action within two years to reduce the number of offenders with mental disorders who were detained in prison psychiatric wings without receiving appropriate treatment.

Implementation of the measures adopted by the authorities had made it possible to reduce significantly the number of individuals in compulsory confinement who were being held in prisons. Many places had been made available outside prison structures over the past five years, including the opening of two forensic psychiatry centres. According to the most recent report from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the treatment of detainees in these institutions appeared to be satisfactory. Indeed, on the date of adoption of this judgment, the Court had received no applications challenging the conditions of detention or therapeutic structure in those centres.

However, on 1 December 2019 an appreciable number of individuals in compulsory confinement were still being detained in prisons in inappropriate conditions. The Court therefore urged the respondent State to confirm this positive trend by continuing its efforts to resolve this problem definitively and to guarantee to each detainee living conditions that were compatible with the Convention.

2.  Admissibility

(a)  Were the remedies capable of depriving the applicants of their victim status?

A compensatory remedy was in principle sufficient to redress the alleged violation where, as in the present case, the applicants were no longer, at the date of the Court’s examination, detained in conditions that they considered contrary to the Convention and where a question arose as to their continued victim status.

However, an effective preventive remedy was required for individuals who were still held in conditions that were contrary to Articles 3 and 5 § 1, that is, a remedy likely to redress the situation complained of and to prevent the continuation of the alleged violations. Therefore, in so far as the applicants were still detained in the impugned conditions when their applications were lodged, the Court would deal separately with the question of the effectiveness of the preventive remedy at their disposal for the purposes of Articles 5 § 4 and 13 of the Convention.

(b)  Had the authorities acknowledged the violations of the Convention?

The domestic courts had expressly acknowledged a breach of the Convention in respect of all the applicants and had found that the State had committed a fault within the meaning of Article 1382 of the Civil Code.

(c)  Did the applicants receive appropriate and sufficient redress?

i.  Did the compensation cover the entire period complained of?

α.  Mr Rogiers, Mr Neirynck and Mr Van Zandbergen (the applicants) – The domestic courts had applied a five-year limitation period, finding that the claim that the applicants were entitled to make arose again each day, thus extending the limitation period. However, the application of a limitation period was not compatible with the Court’s case-law. Although the applicants had occasionally been granted short periods of conditional release in external institutions, they had on each occasion been imprisoned again. The length of their detention in prison psychiatric wings had considerably exceeded the reasonable period required for them to be placed in an appropriate institution. Accordingly, in so far as they had never been granted final discharge and their status as individuals held in compulsory confinement had not changed, the consecutive periods of detention had to be considered in their entirety, and therefore as an ongoing violation.

To require applicants to pursue a compensatory remedy before the alleged ongoing violation had ended amounted to placing an excessive procedural burden on them. Such a requirement would not take account of the vulnerability of persons in compulsory confinement, arising from both their mental health condition and the fact of their detention; nor would it take account of the fact that while the applicants had been detained in the conditions complained of, their main concern had been to secure a change in those conditions, by requesting their transfer to an appropriate institution or their discharge.

Thus, during the period of detention in conditions that were incompatible with the Convention, only a preventive remedy, capable of ending the contested  situation, could be regarded as effective.

Thus, given that the compensation awarded to the applicants by the domestic courts did not cover the entirety of the period of the ongoing violation concerned, they had not lost their victim status.

β.  Mr Venken and Mr Clauws – The applicants had obtained redress for the entirety of the period for which they had requested compensation. It was therefore necessary to verify whether the amount of the compensation they received had been appropriate and sufficient.

ii.  Was the amount of the compensation appropriate and sufficient?

A wide margin of appreciation had to be left to the national authorities in assessing the amount of compensation. This had to be organised in a manner consistent with their own legal system and traditions and consonant with the standard of living in the country concerned, even if that resulted in the awards of amounts that were lower than those fixed by the Court in similar cases.

The Court had also to take account of the measures taken by the authorities to put an end to the structural problem identified, as the applicants in the present case had benefited from those measures.

Having regard to these considerations, the length of the disputed situations, the amounts awarded by the Court in similar cases and the circumstances of the present case, the sum of EUR 1,250 per year of detention in conditions contrary to the Convention was not unreasonable. It followed that Mr Venken, who had received EUR 1,250 per year of detention in conditions contrary to the Convention, and Mr Clauws, who had received more than EUR 2,000 per year of detention in the conditions complained of, had obtained appropriate and sufficient redress for the violations they had endured.

Lastly, the division of procedural costs equally between the parties had been decided by a court taking into account all the elements of the case, particularly the fact that Mr Clauws had been only partially successful and that he had received legal aid. The Court did not consider that any disproportionate burden had been imposed.

Conclusion: inadmissible (incompatibles ratione personae) (Mr Venken and Mr Clauws).

Conclusion: preliminary objection dismissed (victim status) (Mr Rogiers, Mr Neirynck and Mr Van Zandbergen)

3.  Merits

As with the cases previously examined by the Court, the fact that Mr Rogiers, Mr Neirynck and Mr Van Zandbergen had been held in a prison psychiatric wing for a significant period, with no real hope of any change and without appropriate medical supervision had effectively broken the link between the ground for their detention and the place and conditions of detention. This had also amounted to particularly acute hardship, causing them distress of an intensity exceeding the unavoidable level of suffering inherent in detention.

Furthermore, during its last periodic visit to Belgium in 2017, the CPT had noted that these well-known systemic problems persisted in the psychiatric wings of prisons.

Conclusion: violation (unanimously).

With regard to the existence of an effective remedy in practice, likely to redress the situation of which the applicants were victims and to prevent the continuation of the alleged violations, the Court also concluded, unanimously, that there had been a violation of Article 5 § 4 in the case of Mr Venken; a violation of Articles 5 § 4 and 13 taken together with Article 3 in the cases of Mr Rogiers and Mr Neirynck; and, by six votes to one, no violation of Articles 5 § 4 and 13 taken together with Article 3 with regard to Mr Clauws and Mr Van Zandbergen.

Applications similar to the present cases had been adjourned pending expiry of the time limit set by the Court in the W.D. v. Belgium pilot judgment. The Court considered it appropriate to continue their examination in the light of the principles established in the present judgment once that time limit had expired.

Article 41: EUR 2,500 to Mr Venken, EUR 6,100 to Mr Rogiers, EUR 6,900 to Mr Neirynck and EUR 16,200 to Mr Van Zandbergen in respect of non-pecuniary damage.

(See also W.D. v. Belgium, 73548/13, 6 September 2016, Legal summary; Rooman v. Belgium [GC], 18052/11, 31 January 2019, Legal summary; Ulemek v. Croatia, 21613/16, 31 October 2019, Legal summary; J.M.B. and Others v. France, 9671/15 et al., 30 January 2020, Legal summary; Shmelev and Others v. Russia (dec.), 41743/17 et al., 17 March 2020, Legal summary; Barbotin v. France, 25338/16, 19 November 2020, Legal summary)

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