Denis and Irvine v. Belgium [GC] (European Court of Human Rights)

Information Note on the Court’s case-law 252
June 2021

Denis and Irvine v. Belgium [GC]62819/17 and 63921/17

Judgment 1.6.2021 [GC]

Article 5
Article 5-1
Lawful arrest or detention

Refusal to discharge offenders with persisting mental disorders from compulsory confinement after new law reserving its use for most serious offences: no violation

Article 5-4
Review of lawfulness of detention
Speediness of review

Three-year probationary period requisite for discharge from compulsory confinement not decisive in view of the offenders’ persisting mental disorders: no violation

Facts – After committing, respectively, the offences of theft and attempted aggravated burglary, the applicants, who were mentally unstable, were placed in compulsory confinement by the criminal court under the Social Protection Act of 1930. On 1 October 2016 a new law, the Compulsory Confinement Act (“CCA”), entered into force reserving compulsory confinement to the two most serious categories of offences involving an assault on the “physical or mental integrity” of third parties. The applicants applied for permanent release, arguing that the acts they had committed no longer fulfilled the conditions for confinement under the new law. Their applications were dismissed on the ground that their mental disorders were not sufficiently stabilised and that they had not completed the three-year probation period prescribed by law in order to benefit from permanent release. The Court of Cassation dismissed their appeals on points of law.

In a judgment of 8 October 2019, a Chamber of the European Court found unanimously no violation of Article 5 §§ 1 and 4. The case was referred to the Grand Chamber at the applicants’ request.

Law –

Article 5 § 1: The Court found the applicants’ detention continued to have a valid legal basis and that their deprivation of liberty was lawful. In particular:

(a) As to the ground for the deprivation of liberty – It had not been disputed that the applicants’ deprivation of liberty fell withing the scope of Article 5 § 1 (e): they had not been convicted of an offence and no penalty had been imposed but had been found to lack criminal responsibility on account of the mental disorders from which they suffered; their compulsory confinement was a security measure of a preventive and not punitive nature.

(b) As to the lawfulness of the deprivation of liberty – the Court took into account the following:

(i) The legislative amendment in issue and the question raised before the Court: Although the CCA applied in principle to all pending cases it did not set out a specific transitional measure for persons, such as the applicants, who had been placed in confinement on the basis of the previous legal regime and who had committed acts which did not reach the new and higher threshold required. Accordingly, the question to be determined was whether this threshold affected the lawfulness of their detention, having regard to the requirements of Article 5 § 1 (e).

(ii) The application of the new legislation by the domestic courts: The domestic courts held that the lawfulness of the applicants’ compulsory confinement had not been affected by the legislative amendment in issue. More specifically, the Court of Cassation held that the decisions in the applicants’ cases had become res judicata and the compulsory confinement orders issued against them final. Article 5 § 1 did not mean that a final compulsory confinement measure was no longer lawfully or legally imposed due to a change of legislation during the execution phase. Moreover, the assessment of the mental state and the ensuing dangerousness of the person was not made solely on the basis of the offences for which he or she had been placed in confinement but also on account of a range of risk factors. It thus transpired that the domestic system envisaged two successive phases of compulsory confinement which were governed by different provisions and criteria. The first phase was that of the judicial proceedings resulting in the decision to impose compulsory confinement. This decision remained valid throughout that confinement so long as no final judgment for discharge was given. After the measure’s imposition, the second phase began, during which the social protection divisions at the post-sentencing courts (CPS) reviewed the situation of persons in confinement at regular intervals and examined requests made by the detainees for a change in practical arrangements or their discharge. Different rules applied, in particular with regard to the conditions for final discharge, for which the CPS had to assess whether the mental disorder of the individual had stabilised sufficiently and, having regard to a range of risk factors, whether there was a risk that the punishable acts in question would be committed again. Having regard to the domestic law as interpreted by the Court of Cassation, given that the applicants had not been granted final discharge, their deprivation of liberty continued to be validly based on the court decisions which, though taken under the previous legislation, maintained their binding force.

With regard to individuals placed in compulsory confinement on the basis of a decision which had become res judicata prior to 1 October 2016, the effects of the CCA were limited to decisions on extending the measure, the practical arrangements of its execution and on those individuals’ possible discharge. In the Court’s view the domestic courts’ approach in the present case was neither arbitrary nor manifestly unreasonable.

(iii) As to the compatibility of the approach taken with Article 5 § 1 (e): In the instant case, it had not been contested that the three conditions of the Winterwerp v. the Netherlands (1979) judgment were met: notably, it had been reliably shown that the applicants were of unsound mind, that their mental disorders were of a kind or degree warranting compulsory confinement, and that the disorders persisted throughout the entire period of the confinement. The Convention did not require the authorities, when assessing the persistence of the mental disorders, to take into account the nature of the acts committed by the individual concerned which had given rise to his or her compulsory confinement. As to the persistence of the disorder, domestic law introduced an automatic periodic review during which individuals in compulsory confinement were able, among other things, to argue that their mental-health condition had stabilised and that they no longer represented a danger to society as well as to request various practical arrangements for the execution of the order, including as in the applicants’ case, their final discharge. Under section 66 of the CCA this could only be granted under two cumulative conditions: first, the completion of a three-year probationary period; and second, that the mental disorder had sufficiently stabilised, to ensure that it could no longer reasonably be feared that the person placed in confinement, on account of his or her mental disorder, possibly combined with other risk factors, would commit fresh offences causing harm to or threatening the physical or mental integrity of third parties. Thus, only the current, mental-health condition of the confined person and the current risk of reoffending, at the time that the review was carried out, were considered in deciding on an individual’s release or continued placement in compulsory confinement. It was in the light of those considerations that the CPS had examined the applicants’ requests for final discharge. The nature of the punishable acts they had committed, which had formed the basis of their detention, had not been taken into account. In contrast, the CPS had assessed whether their mental disorders had stabilised to a sufficient degree and found in view of the information available that they had not. In doing so, the CPS had examined whether the mental disorders persisted as required by Article 5 § 1 (e). In any event, during the most recent periodic review of the applicants’ situation the CPS had considered that there still existed a high risk that they would commit violent crimes.

Conclusion: no violation (unanimously)

Article 5 § 4: Given the conclusion that the applicants’ detention was lawful, Article 5 § 4 did not require in the present case that their immediate release should be ordered. Further, the applicants had benefited from annual automatic judicial review by the CPS, to which they had been able to submit, inter alia, their discharge requests, and had been able to appeal to the Court of Cassation. Less than a month had elapsed between the CPS’s judgments and the appeal ones. The applicants had not argued that they did not have a judicial remedy at their disposal ruling promptly on the lawfulness of their detention and on their release applications. Their sole complaint was rather that it was impossible to secure their immediate and final discharge on account of the three-year probationary period imposed by the new law.

Indeed, that requirement seemed in principle to thwart the right, enshrined in Article 5 § 4, to obtain a judicial decision ordering the termination of detention if it proved unlawful. The Court, however, had to limit itself to verifying whether the manner in which the law had been applied in the particular circumstances of the case complied with the Convention and not to take a decision in abstracto. In the present case, the domestic courts had refused the applicant’ request for final discharge on the grounds that neither of the two cumulative conditions under section 66 of the CCA had been met. The probation condition had, therefore, not been decisive as their state of mental health had also not improved sufficiently. Further, the Court welcomed the fact that in the meantime the Court of Cassation had interpreted section 66 in the light of Article 5 §§ 1 and 4, ruling that an individual who was no longer dangerous must be granted final discharge, even if the three-year probationary period had not yet been completed.

Conclusion: no violation (unanimously)

(See also Winterwerp v. the Netherlands, 24 October 1979; Radomilja and Others v. Croatia [GC], 37685/10 and 22768/12, 20 March 2018, Legal Summary; Ilnseher v. Germany [GC], 10211/12 and 27505/14, 4 December 2018, Legal Summary)

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