Detainees in psychiatric prison wards. Developments after a pilot decision. Detention in inappropriate conditions, psychiatric wards with systemic problems and improvements.
JUDGMENT
Venken and others v. Belgium 06.04.2021 (app. no. 46130/14)
SUMMARY
The case concerns five applications concerning the detention of five Belgian nationals in the psychiatric prison ward, which followed the pilot decision of W.D. against Belgium.
The applicants alleged that they did not benefit from an remedy adapted to their mental health condition and complained about the lack of an effective remedy to improve their situation.
The Court noted that at the time of their appeal, the five applicants were being held in the psychiatric ward of a formal prison and were not receiving treatment tailored to their needs. Everyone is now being held in a facility that has been in good health since the beginning. Their detention, in circumstances contrary to Articles 3 and 5 § 1 of the Convention, is no longer valid. According to the ECtHR, the compensation granted by the national courts to the three applicants did not cover the entire period during which they were held in the psychiatric ward of the prisons, with no realistic hope of a change of circumstances and without proper medical care. For the ECtHR, this important period was a particularly painful ordeal that put them at a risk that exceeded the inevitable level of inconvenience of detention. However, two applicants, who had received adequate compensation for all the periods during which they were held in conditions contrary to the Convention, lost their status as victims.
The European Court of Human Rights has unanimously found a violation of Article 3 (prohibition of inhuman or degrading treatment) and Article 5 (1) (right to personal liberty and security) of the ECHR concerning the three applicants.
The Court also found that these three applicants, who complained about the proceedings under the Social Security Act of 1930, did not benefit from an effective precautionary measure, for the same reasons as those set out in the W.D. against Belgium, which was minimal, until the creation of additional places in the psychiatric medical centers in Ghent, Antwerp and elsewhere.
The ECtHR found that there had been a violation of Article 5 § 4 (right of immediate decision on the lawfulness of detention) concerning three applicants, and a violation of Article 13 (right of effective remedy) in conjunction with Article 3 of the ECHR concerning two of the applicants.
The Court held that appeals to the social security authorities as regulated by the Detention Act were not a remedy capable of quickly compensating the two applicants who complained. These remedies could therefore be described as ineffective. However, the Court considers that the application for interim measures is in advance an accessible remedy capable of remedying the situation of the two applicants and preventing the alleged infringements from continuing. It recalls that the Court of Cassation has specifically emphasized the complementarity of appeals before the social protection authorities and those before the judge.
Thus, by a majority (6 votes in favor, 1 against), the ECtHR ruled that there had been no violation of Article 5 § 4 (right to decide immediately on the lawfulness of detention), and Article 13 (right to an effective remedy) in conjunction with Article 3 concerning two applicants, who complained about the proceedings that took place after the entry into force of the 2014 law on detention.
The Court awarded 2,500, 6,100, 6,900 and 16,200 euros for non-pecuniary damage.
PROVISIONS
Article 3
Article 5
PRINCIPAL FACTS
The five applicants who have been found criminally unaccountable for the offenses and who have been remanded in custody on various dates, between 1992 and 2011, pursuant to Articles 1 and 7 of the Social Protection Act of 9 April 1930 concerning non-compliance normal, ordinary offenders and perpetrators of certain sexual offenses, as amended by the Law of 1 July 1964 “On Social Protection”.
The applicants were detained for acts characterized as unlawful violence and bodily harm in the Venken and Rogiers case, for theft, forgery and fraud in the case of Mr Neirynck, for arson in Mr Clauws’ case, and for acts designated as intentional homicide in the case of Mr Van Zandbergen.
These incarceration measures are ordered each time with the aim, on the one hand, of protecting society and, on the other hand, of offering tailored therapeutic support to the individual with a view to reintegrating into society.
The applicants alleged that they had not benefited from treatment tailored to their own needs in the psychiatric wards of the regular prisons and complained about the lack of an effective remedy to improve their condition.
Detention conditions in Belgium have already been described in the W.D. v. Belgium and updated in the case of Rooman v. Belgium and the measures taken by the national authorities to change the legal framework and improve the situation (W.D. v. Belgium). As part of the implementation of the above decisions, the Belgian authorities have taken general measures to improve the situation of detainees. The various “Masterplans” mainly led to the creation of a large number of reception places for care institutions (including forensic psychiatric centers) with control over the treatment of detainees. It is expected that additional positions will be created in the coming years. According to information provided by the government, in April 2016, Belgium had about 4,230 people detained in a psychiatric ward, of whom 807 were being held in prison.
According to an announcement of the government of 19.03.2020 to the Committee of Ministers, in the context of monitoring the decisions of L.B. v. Belgium and W.D. against Belgium, on 1.12.2019, the number of prisoners in prison amounted to 537.
Pursuant to Article 3 (prohibition of inhuman or degrading treatment), Article 5 § 1 (right to personal liberty and security) of the ECHR, the applicants complained that they had been held for several years in the psychiatric wards of regular prisons and had not received adequate care and treatment. the state of their mental health.
Relying on Article 5 § 4 (right to rule immediately on the lawfulness of his detention), they themselves claimed that they had not benefited from an effective remedy to improve their situation.
Some applicants also relied on Article 13 (right to an effective remedy) in conjunction with Article 3 of the Convention.
THE DECISION OF THE COURT…
Article 3 (prohibition of inhuman or degrading treatment) and 5 § 1 (right to personal liberty and security)
This complaint relates to the periods during which the applicants were held in the psychiatric wards of regular prisons without receiving treatment tailored to their condition.
The Court noted that at the time of their appeal, the five applicants were being held in the psychiatric ward of an ordinary prison where they were not receiving customized treatment. Everyone is now being held in an institution that was appropriate from the outset for their mental health condition in which they do not question receiving appropriate treatment.
Consequently, the conditions contrary to Articles 3 and 5 § 1 of the Convention no longer apply.
For all the applicants, the domestic courts recognized a breach of the Convention, and concluded that the State had committed an error within the meaning of Article 1382 of the Civil Code. The Court therefore considers that there has been an explicit acknowledgment of the infringement. As to whether the applicants received adequate compensation, the Court noted the following.
In the cases of Rogiers, Neirynck and Van Zandbergen, the Court considers that the period of detention of the three applicants in the psychiatric wards of the regular prison far exceeded the reasonable time for their placement in a suitable facility. As long as they have not applied for release from prison and their detention status has not changed, successive periods of deprivation of liberty should be considered as a whole, and therefore as a continuing violation. Noting that the damages awarded to Rogiers, Neirynck and Van Zandbergen did not cover the entire period of the continuing infringement, and thus the Court held that they had not lost their status as victims. The Court noted that these three applicants were held for several years in the psychiatric wards of regular prisons where they did not receive adequate care and treatment for their mental health condition. This resulted in the termination of the relationship between the reason for the detention and the place and conditions under which the detention took place. Keeping them in psychiatric wards without realistic hope of change, without proper medical supervision and for a significant period of time was also a particularly painful ordeal, which exceeded the inevitable level of suffering caused by detention. The Court also noted that during its last periodic visit to Belgium in 2017, the Committee for the Prevention of Torture noted that the psychiatric wards of prisons were still suffering from known systemic problems. There has therefore been a violation of Articles 3 and 5 § 1 of the Convention. with regard to these three applicants.
In the case of Venken and Clauws, the Court found that they had received compensation for all the periods for which they had claimed compensation, and that the amount of EUR 1,250 per year of detention, under conditions contrary to the Convention, was not unreasonable. These two applicants therefore received sufficient and fair satisfaction for the infringements they had suffered and could no longer claim to be victims of infringements of Articles 3 and 5 § 1. Their complaints under those provisions were rejected.
Articles 5 § 4 (right to decide on the lawfulness of detention) and 13 (right to an effective remedy) in conjunction with Article 3
This complaint concerns the effectiveness of the precautionary measures available to the five applicants in order to change the material conditions of detention which were contrary to the Convention.
The proceedings complained of by Venken, Rogiers and Neirynck fall within the 1930 Social Protection Act:
The Court notes that throughout the period during which Venken, Rogiers and Neirynck were held in a penitentiary institution and in inappropriate conditions, they did not benefit from an effective precautionary measure, for the same reasons as those identified by the Court in the pilot decision WD against Belgium, at least until the creation of additional places in psychiatric institutions in Ghent and Antwerp.
There has therefore been a violation of Article 5 § 4 of the Convention in relation to Venken, Rogiers and Neirynck. There is also a violation of Article 13 in conjunction with Article 3 of the Rogiers and Neirynck Convention.
The proceedings complained about by Clauws and Van Zandbergen took place after the entry into force of the 2014 law on detention of patients with mental disorders:
The applicants considered that these remedies were ineffective, as they did not allow them to improve their situation or to be transferred to a suitable institution. In the present case, the Court notes the following.
The annual periodic review provided by law
The Court noted that the law now provides for a system of automatic periodic review of deprivation of liberty, which must be applied within a period not exceeding one year from the decision of the Department of Social Protection of the court of execution of sentences (” CPS “). The CPS may include a shorter period in its decision if it deems it necessary. It may adjourn the proceedings only once for the next hearing, without this hearing being able to take place more than two months after the adjournment. In principle, a maximum period of sixteen months thus separates the two CPS decisions.
In the Court’s view, the period provided for by the law on detention cannot be regarded as reasonable for persons deprived of their liberty under conditions contrary to Articles 3 and 5 § 1 of the Convention. Indeed, the precautionary measure should be able to quickly terminate imprisonment under conditions contrary to Articles 3 and 5 § 1 e) of the Convention, which obviously does not apply to the annual periodic review provided by the law on confinement. people with psychiatric problems. In that case, in the case of Mr Van Zandbergen, the CPS examined, during its periodic review, that it had no power to rule on the State’s inability to transport the applicant to a suitable facility within a reasonable time. Despite the CPS’s observation that multiple bodies supported the transfer of the applicant to another facility, there was no specific relocation plan and it rejected the transfer request to a suitable facility, setting a deadline for a new notice from the prison director one year later.
The emergency process
The emergency procedure provided for in Article 54 of the Detention Act, invoked by Mr Clauws, is the only option left for the detainee and his lawyer in proceedings before the social security authorities. This provision empowers the CPS to make a decision on an application in the event of an emergency transfer of an arrested person, with an exit permit, restricted detention, electronic surveillance, parole. The Constitutional Court has ruled that this procedure contains a very strong guarantee of compliance with Article 5 of the Convention.
The Court noted, however, that in Mr Clauws’ case, the CPS refused to acknowledge that detention under conditions contrary to the Convention was an emergency. The Court of Cassation then upheld that the fact that the detainee was being held in conditions unsuitable for his mental state within the meaning of Articles 3 and 5 of the Convention alone did not constitute grounds for considering that the situation required an urgent decision by the CPS. At this point, the Court insisted that it was up to the authorities to take the necessary measures to provide detainees with appropriate care and adapted to their mental health status. This is an obligation of the state. Indeed, in the case of patients and for the most part they had not benefited from regular and independent psychiatric follow-up for several years, the determination of the “appropriate solution”, which also depends on the profile of the stakeholders and the risk they pose to society , it is impossible to do by themselves. We must also not overlook the fact that these detainees suffer from mental disorders and therefore may not be able to complain or even complain about the treatment intended for them and its effects on them.
In these circumstances, the interpretation given by the national courts of the concept of ‘urgency’ in the case of Mr Clauws, in combination with the interval between two CPS decisions according to the automatic periodic review, has the effect of appealing to the social authorities, as organized by the law on the detention of the mentally disturbed, should not constitute remedial measures capable of promptly rectifying the situation of the victims Clauws and Van Zandbergen and preventing the continuation of the alleged violations. These remedies could therefore not be considered effective.
Interim measures (Article 584 of the Judicial Code)
The Court of Cassation specifically recalled the complementarity of appeals before the social protection authorities and those before the judge.
The Court had already ruled that the application for interim measures could in theory prove to be complementary to the remedies before the social protection authorities and, in some cases, allow interested parties to take a decision that complies with the efficacy requirements set out in the Convention. . This procedure allows a detainee to ask the judge to note the possible inability on the part of the Belgian State to fulfill his obligation to transport the detainee to a suitable facility within a reasonable time and orders the Belgian State to provide adequate care.
In this case, in particular given the creation of a large number of posts in psychiatric institutions to which the applicants could actually be transferred and the positive development of the case law of the competent court, the Court considered that the summary procedure was an accessible solution and capable of correcting situation in which the applicants Clauws and Van Zandbergen were victims and would prevent the alleged infringements from continuing.
Therefore, in view of the possibility that those applicants would apply for interim measures under Article 584 of the Judicial Code and in the absence of recent evidence of the de facto ineffectiveness of this remedy, the Court concluded that they had at their disposal a effective remedy.
This conclusion does not in any way prejudge the possible reconsideration of the question of the effectiveness of the Court’s summary proceedings on the basis of judgments given by national courts and their effective enforcement. There has therefore been no violation of Article 5 § 4 of the Convention and Article 13 in conjunction with Article 3 of the Convention for these two applicants.
Similar complaints
The Court recalled that similar complaints were adjourned during the suspension granted by the Court in the pilot W.D. against Belgium. The Court considered it appropriate to continue their examination on the basis of the principles set out in this Decision once it has become irrevocable.
Just satisfaction (Article 41)
The Court ruled by a majority that Belgium owed 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 for non-pecuniary damage.
Separate opinion
Judge Pavli expressed a partly dissenting opinion, the text of which is attached to the judgment.
