issued by the Registrar of the Court

ECHR 112 (2021)

06.04.2021

Detainees under compulsory confinement orders in prison psychiatric wings:

the Court reviews progress since its W.D. v. Belgium¹pilot judgment

The case concerned five applications related to the compulsory confinement of five Belgian nationals

in the psychiatric wings of ordinary prisons, and followed on from the pilot judgment W.D. v.

Belgium¹. The applicants alleged that they had not received therapeutic care that was appropriate to

their mental-health condition and complained of the lack of an effective remedy in order to bring

about a change in their situation.

In today’s Chamber judgment²in the case of Venken and Others v. Belgium (application

no. 46130/14) the European Court of Human Rights held:

- unanimously, that there had been:

a violation of Articles 3 (prohibition of inhuman or degrading treatment) and 5 § 1 (right to liberty

and security) of the European Convention on Human Rights in respect of three applicants.

The Court noted that when their applications were lodged, the five applicants had been detained in

the psychiatric wings of ordinary prisons, where they did not receive appropriate therapy. They were

now all accommodated in an institution that was in principle appropriate for their mental health

conditions. Their detention in conditions breaching Articles 3 and 5 § 1 of the Convention had ended.

In this connection, it found that the compensation awarded by the domestic courts to three of the

applicants did not cover the entire period during which they had been held in prison psychiatric

wings, without a realistic hope of change and without appropriate medical support. In the Court’s

view, this significant period had subjected them to particularly acute hardship, causing distress of an

intensity exceeding the unavoidable level of suffering inherent in detention. However, two

applicants, who had obtained adequate and sufficient redress for the entire period during which

they had been detained in conditions contrary to the Convention, no longer had victim status.

and

a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) in respect of

three applicants, and a violation of Article 13 (right to an effective remedy) taken together with

Article 3 in respect of two of these same applicants.

The Court held that these three applicants, who complained about proceedings which were

conducted under the 1930 Social Protection Act, had not had available an effective remedy, for the

same reasons as those identified by the Court in the W.D. v. Belgium pilot judgment, at least until

the creation of additional places in the Ghent and Antwerp forensic psychiatric centres and in non-

prison facilities.

- by a majority (six votes to one), that there had been:

no violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention), and of

Article 13 (right to an effective remedy) taken together with Article 3, in respect of two applicants

W.D. v. Belgium (no. 73548/13, 6 September 2016).

2. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,

any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges

considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final

judgment. If the referral request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

who complained about proceedings which were conducted following the entry into force of the

2014 Compulsory Confinement Act.

The Court considered that urgent applications to the social protection bodies, as set up by the

Compulsory Confinement Act, did not constitute remedies likely to redress rapidly the situation

complained of by the two applicants. These remedies could not therefore be regarded as effective.

However, the Court held that in theory urgent proceedings before the ordinary courts (recours de

référé) had constituted, and constituted, an accessible remedy, capable of affording redress for the

situation of which these two applicants were victims and of preventing the continuation of the

alleged violations. It noted that the Court of Cassation had specifically pointed out the

complementary nature of urgent applications to the social protection bodies and urgent proceedings

before the ordinary courts.

The Court also pointed out that applications similar to those in this case had been adjourned

pending expiry of the time-limit granted by the Court in the W.D. v. Belgium pilot judgment. It

considered that it would be appropriate to continue examining these cases in the light of the

principles established in the present judgment, once it had become final.

Principal facts

The five applicants are offenders who were found to lack criminal responsibility for their actions and

with regard to whom compulsory confinement orders were imposed on different dates between

1992 and 2011, in application of sections 1 and 7 of the Social Protection Act of 9 April 1930 in

respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences, as

amended by the Law of 1 July 1964 (“the Social Protection Act”).

The applicants were placed in compulsory confinement for acts classified as grievous bodily harm in

the case of Mr Venken and Mr Rogiers, for acts classified as theft, forgery and deception in the case

of Mr Neirynck, for acts classified as criminal arson in the case of Mr Clauws, and for acts classified

as intentional homicide in the case of Mr Van Zandbergen.

Those compulsory confinement measures were imposed on each occasion in order, firstly, to protect

society, and secondly, to provide appropriate therapeutic support to the detainees in question, with

a view to their reintegration into society.

The applicants alleged they did not receive therapeutic care that was appropriate to their mental-

health condition in the psychiatric wings of ordinary prisons, and submitted that no effective remedy

had been available to them in order to bring about a change in their situation.

Developments in the situation since the W.D. v. Belgium judgment

The types of facilities available to persons placed in compulsory confinement in Belgium was

previously described in the W.D. v. Belgium judgment, and updated in Rooman v. Belgium³, as were

the measures taken by the national authorities to amend the legislative framework and improve the

situation (W.D. v. Belgium). In the context of execution of the above-cited leading judgments, the

Belgian authorities took general measures to improve the situation of persons in compulsory

confinement. In particular, various “Masterplans” have resulted in the creation of a large number of

places for mentally disturbed offenders in health institutions (including forensic psychiatric centres),

with supervision of the manner in which those detainees are treated. Additional places were due to

be created over the next few years. According to information provided by the Government, in April

2016 there were about 4,230 persons who had been placed in compulsory confinement in Belgium,

of whom 807 were being held in prisons. Further information provided by the Government to the

Committee of Ministers on 19 March 2020, in the context of monitoring execution of the L.B. v.

³Rooman v. Belgium [GC], no. 18052/11, 31 January 2019.

Belgium⁴and W.D. v. Belgium group of judgments, indicated that 537 individuals in compulsory

confinement were being detained in prisons on 1 December 2019.

Complaints, procedure and composition of the Court

Relying on Article 3 (prohibition of inhuman or degrading treatment) and Article 5 § 1 (right to

liberty and security) of the European Convention on Human Rights, the applicants complained that

they had been detained for several years in the psychiatric wings of ordinary prisons, and submitted

that they have not received appropriate care and treatment for their mental-health conditions.

Relying on Article 5 § 4 (right to a speedy decision on the lawfulness of detention), they considered

that they did not have an effective remedy to bring about a change in their situation. Certain

applicants also relied on Article 13 (right to an effective remedy) taken together with Article 3 of the

Convention.

The applications were lodged with the European Court of Human Rights between 2014 and 2018.

Judgment was given by a Chamber of seven judges, composed as follows:

Georgios A. Serghides (Cyprus), President,

Paul Lemmens (Belgium),

Dmitry Dedov (Russia),

Georges Ravarani (Luxembourg),

María Elósegui (Spain),

Darian Pavli (Albania),

Anja Seibert-Fohr (Germany),

and also Milan Blaško, Section Registrar.

Decision of the Court

Article 3 (prohibition of inhuman or degrading treatment) and 5 § 1 (right to liberty and

security)

This complaint concerned the periods during which the applicants had been detained in the

psychiatric wings of prisons without receiving therapeutic treatment that was adapted to their

conditions.

The Court noted that when their applications were lodged the five applicants had been detained in

the psychiatric wings of ordinary prisons, where they did not receive appropriate therapy. They were

now all accommodated in an institution that was in principle appropriate to their mental health

conditions, and they did not argue that they were not receiving appropriate treatment. Their

detention in conditions that breached Articles 3 and 5 § 1 of the Convention had therefore come to

an end.

The national courts had acknowledged, in respect of all the applicants, a violation of the Convention,

and had concluded that the State had committed a fault within the meaning of Article 1382 of the

Civil Code. Accordingly, the Court considered that the violation had been expressly acknowledged.

As to whether the applicants had obtained adequate and sufficient redress, the Court noted as

follows.

In the cases of Mr Rogiers, Mr Neirynck and Mr Van Zandbergen, the domestic courts had applied a

five-year limitation period, finding that the claim that the applicants were entitled to make began

⁴L.B. v. Belgium, no. 22831/08, 2 October 2012.

again each day, thus extending the limitation period. The Court considered that the length of these

three applicants’ detention in prison psychiatric wings had significantly exceeded the reasonable

period required for them to be placed in an appropriate institution. In so far as they had never been

granted final discharge and their status as individuals held under compulsory confinement orders

had not changed, the consecutive periods of detention had to be considered in their entirety, and

therefore as an ongoing violation. Noting that the compensation awarded by the domestic courts to

Mr Rogiers, Mr Neirynck and Mr Van Zandbergen did not cover the entire period of the continuous

violation in question, the Court considered that they had not lost their victim status. The Court noted

that these three applicants had been detained for several years in the psychiatric wings of ordinary

prisons, where they had not received treatment and therapy that was adapted to their mental-

health conditions. This situation had effectively broken the link between the purpose and the

practical conditions of their detention. The fact that they had been held in prison psychiatric wings

for a significant period, with no real hope of any change and without appropriate medical

supervision, had subjected them to particularly acute hardship, causing them distress of an intensity

exceeding the unavoidable level of suffering inherent in detention. Furthermore, the Court observed

that during its last periodic visit to Belgium in 2017, the CPT⁵had noted that these well-known

systemic problems persisted in the psychiatric wings of prisons. It followed that there had been a

violation of Articles 3 and 5 § 1 of the Convention in respect of these three applicants.

With regard to Mr Venken and Mr Clauws, the Court noted that they had been awarded redress in

respect of all of the periods for which they had requested compensation, and that the sum of

EUR 1,250 per year of detention in conditions contrary to the Convention was not unreasonable.

These two applicants had received adequate and sufficient redress for the violations they had

endured and could no longer claim to be victims of a breach of Articles 3 and 5 § 1. Their complaints

under those provisions were therefore dismissed.

Articles 5 § 4 (right to a speedy decision on the lawfulness of detention) and 13 (right to an

effective remedy) taken together with Article 3

This complaint concerned the effectiveness of the preventive remedies available to the five

applicants with a view to bringing about a change in their material conditions of detention, which

were contrary to the Convention.

The proceedings complained of by Mr Venken, Mr Rogiers and Mr Neirynck had been conducted

under the 1930 Social Protection Act:

The Court noted that throughout the entire period that Mr Venken, Mr Rogiers and Mr Neirynck

were detained in a prison, and in inappropriate conditions, they had not had available an effective

preventive remedy, for the same reasons as those identified by the Court in the W.D. v. Belgium

pilot judgment, and that this situation had persisted at least until the creation of additional places in

the Ghent and Antwerp forensic psychiatric centres and in non-prison facilities. It followed that

there had been a violation of Article 5 § 4 of the Convention in respect of Mr Venken, Mr Rogiers

and Mr Neirynck. There had also been a violation of Article 13 taken together with Article 3 of the

Convention in respect of Mr Rogiers and Mr Neirynck.

The proceedings complained of by Mr Clauws and Mr Van Zandbergen had been conducted

following the entry into force of the 2014 Compulsory Confinement Act: the applicants considered

that these preventive remedies had not been effective, in that they had not enabled them to secure

an improvement in their situation, or their transfer to an appropriate institution. In this connection,

the Court made the following observations.

1. The annual periodic review foreseen by the Act

⁵The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

(“the CPT”).

The Court noted that the Compulsory Confinement Act now provided for a system of automatic

periodic review of the detention of persons in compulsory confinement; it had to be initiated within

a maximum time-limit of one year after the preceding decision of the social protection division at

the post-sentencing court (the “CPS”). The CPS could specify a shorter time-limit in its judgment if it

considered that to be necessary. It could adjourn examination of the case only once to a subsequent

hearing, which had to be held within two months after the adjournment. In principle, a maximum

period of sixteen and a half months thus separated the CPS’s two decisions.

In the Court’s opinion, the interval provided for in the Compulsory Confinement Act could not be

considered reasonable with regard to persons in compulsory confinement who were detained in

conditions contrary to Articles 3 and 5 § 1 of the Convention. A preventive remedy had to be capable

of putting a rapid end to imprisonment in conditions that were contrary to Articles 3 and 5 § 1 (e) of

the Convention, which was clearly not the case for the annual period review provided for in the

Compulsory Confinement Act. In the present case, with regard to Mr Van Zandbergen, the CPS had

held, during its periodic review, that it did not have powers to rule on a possible failure by the State

to fulfil the obligation to transfer the applicant to a suitable establishment within a reasonable time.

In spite of the CPS’s finding that the various entities involved had recommended that he be

transferred to another institution, it had been obliged to note that no specific reclassification project

had been drawn up, and it had dismissed the request for transfer to an appropriate institution,

setting the deadline for a new opinion by the prison governor for exactly one year later.

2. The urgent-application procedure

The urgent-application procedure, provided for in section 54 of the Compulsory Confinement Act

and made use of by Mr Clauws, was now the only possibility for action left to the individual in

compulsory confinement and his or her lawyer in the context of the procedures before the social

protection bodies. This provision granted the CPS competence, in urgent situations, to take a

decision concerning a request for the detainee’s transfer, day-release, short-term leave of absence,

limited detention, electronic surveillance, conditional discharge, early discharge with a view to

expulsion or extradition, or final discharge. The Constitutional Court had held that this procedure

contained a very strong safeguard with regard to compliance with Article 5 of the Convention.

However, the Court noted that in the case of Mr Clauws, the CPS had refused to acknowledge that

his detention in conditions contrary to the Convention amounted to an urgent situation. It had

considered that Mr Clauws had not submitted a specific reclassification project and that, in

consequence, his transfer to another institution could not be ordered and other arrangements for

his compulsory confinement could not be envisaged. The Court of Cassation had then confirmed that

the fact that a person in compulsory confinement was detained in conditions that were ill-suited to

his mental-health condition within the meaning of Articles 3 and 5 of the Convention did not in itself

constitute a reason to hold that the situation required an urgent decision from the CPS. On this

point, the Court stressed that it was for the authorities to take the necessary measures in order to

ensure appropriate and individualised therapy, adapted to their mental-health conditions, to

detainees in compulsory confinement. This was an obligation imposed on the State. It was not for

these detainees themselves to make arrangements for their reclassification in such institutions. In

the case of offenders with mental disorders, the majority of whom had not been given regular

independent psychiatric counselling for several years, it was impossible to expect them to be able to

identify the “appropriate solution” themselves, since this also depended on their individual profile

and the danger they posed to society. Nor could it be overlooked that persons in compulsory

confinement were suffering from mental disorders and might thus be unable to complain coherently

or at all about how they were being affected by any particular treatment.

In those circumstances, the domestic courts’ interpretation of the concept of “urgency” in the case

of Mr Clauws, combined with the length of the interval between two CPS decisions in the context of

the annual periodic review, had meant that the appeals before the social protection bodies as these

had been set up by the Compulsory Confinement Act did not amount to remedies likely to redress

rapidly the situation of which Mr Clauws and Mr Van Zandbergen were victims and to prevent the

continuation of the alleged violations. These remedies could not therefore be regarded as effective.

3. Urgent proceedings (recours en référé) (Article 584 of the Judicial Code)

The Court reiterated that even if a single remedy did not by itself entirely satisfy the requirement of

“effectiveness”, the aggregate of remedies afforded by domestic law could do so. With regard to

Belgian law, the Court of Cassation had specifically pointed out the complementary nature of urgent

applications to the social protection bodies and urgent proceedings before the ordinary courts.

The Court had already considered that urgent proceedings could in theory be complimentary to an

urgent application before the social protection bodies and could, in certain cases, enable the

individuals concerned to secure a decision complying with the Convention requirements of

effectiveness. Such proceedings enabled an individual in compulsory confinement to request a ruling

by the ordinary courts to the effect that the Belgian State had failed in its obligation to transfer the

detainee concerned within a reasonable time to an appropriate facility, and to order the Belgian

State to organise a transfer, on pain of day-fines, or at least to order that appropriate treatment be

provided.

In the present case, having regard in particular to the creation of a large number of places in the

forensic psychiatric centres to which detainees could effectively be transferred, and positive

developments in the approach taken by urgent-applications judges, who did not refrain from

imposing day-fines for non-compliance when issuing such orders, the Court considered that urgent

proceedings had constituted in principle and still constituted a remedy that was accessible and

capable of providing redress in respect of the situation of which the applicants Mr Clauws and Mr

Van Zandbergen were victims and of preventing continuation of the alleged violations.

Accordingly, having regard to the option open to these applicants to bring urgent proceedings under

Article 584 of the Judicial Code, and in the absence of recent evidence showing de facto the

ineffectiveness of this remedy, the Court concluded that they had had available to them an effective

remedy. This conclusion in no way prejudiced any subsequent re-examination by the Court of the

question of the effectiveness of urgent proceedings, in the light of the decisions to be taken by the

national courts and their enforcement in practice. It followed that there had been no violation of

Article 5 § 4 of the Convention and Article 13 taken together with Article 3 of the Convention in

respect of these two applicants.

Similar applications

The Court also pointed out that applications similar to the five applications in this case had been

adjourned pending expiry of the time-limit granted by the Court in the W.D. v. Belgium pilot

judgment. The Court considered that it would be appropriate to continue their examination in the

light of the principles established in the present judgment, once it had become final.

Just satisfaction (Article 41)

The Court held, by a majority, that that Belgium was to pay 2,500 euros (EUR) 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.

Separate opinion

Judge Pavli expressed a separate opinion, which is annexed to the judgment.

The judgment is available only in French.