FOURTH SECTION
CASE OF DENIS AND IRVINE v. BELGIUM
(Applications nos. 62819/17 and 63921/17)
 
 
 
JUDGMENT 
 
STRASBOURG
8 October 2019
 
THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 01/06/2021
 
 
This judgment may be subject to editorial revision. In the case of Denis and Irvine v. Belgium,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Faris Vehabović,
 Paul Lemmens,
 Iulia Antoanella Motoc,
 Carlo Ranzoni,
 Stéphanie Mourou-Vikström,
 Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 3 September 2019,
Delivers the following judgment, which was adopted on that date:
PROCeDURE
1. The case originated in two applications (nos. 62819/17 and 63921/17) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr Jimmy Denis (“the first applicant”), and a British national, Mr Derek Irvine (“the second applicant”), on 21 August 2017. 2. The applicants were represented by Mr P. Verpoorten, a lawyer practising in Herentals. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. 3. The applicants alleged that their deprivation of liberty was contrary to Article 5 § 1 of the Convention and that they had no effective remedy available to them within the meaning of Articles 5 § 4 and 13 of the Convention. 4. On 12 February 2018 the Government were given notice of the complaints under Article 5 §§ 1 and 4 and Article 13 of the Convention, and the remainder of the applications were declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. The British Government did not avail themselves of their right to intervene in the proceedings (Article 36 § 1 of the Convention). THE FACTS
THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1984 and 1964 respectively. At the time they lodged their applications, they were detained in the Bethaniënhuis Psychiatric Hospital in Zoersel and the Antwerp forensic psychiatry centre respectively. Application no. 62819/17
7. By a judgment of the Turnhout Criminal Court of 18 June 2007 the first applicant was placed in compulsory confinement for theft, pursuant to section 7 of the Law of 9 April 1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences (the “Social Protection Act”), applicable at the material time. 8. In a report of 22 January 2007 psychiatrist A. had described the first applicant as having a psychotic personality and being dependent on alcohol and drugs. In the psychiatrist’s opinion, the applicant was suffering from a severe mental disturbance making him incapable of controlling his actions; he posed a danger to society and to himself, given his ongoing use of drugs and his psychotic disorders. 9. The first applicant was granted conditional discharge on several occasions, but his release licence was revoked each time on the grounds that he had failed to comply with the relevant conditions. His compulsory confinement in the social protection unit of Merksplas Prison was extended at regular intervals by the social protection bodies. 10. On 1 October 2016 new legislation, namely the Compulsory Confinement Act of 5 May 2014 (hereafter “the Compulsory Confinement Act”; see paragraph 33 below), entered into force. This Act replaced the Social Protection Act of 9 April 1930 in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences (see paragraph 7 above). 11. On an unspecified date the first applicant made a request for final discharge. In his pleadings, he argued that his compulsory confinement was no longer lawful, given that the offences for which he had been placed in confinement could no longer give rise to a confinement measure under the Compulsory Confinement Act. He submitted that under Article 5 § 1 (e) of the Convention his detention was accordingly neither “lawful” nor taken “in accordance with a procedure prescribed by law”. In addition, in the applicant’s submission, the fact that the Compulsory Confinement Act no longer provided for the possibility of confinement for the offences that he had committed implied that his mental disorder was no longer sufficiently serious to justify an extension of the compulsory confinement measure. 12. On 27 October 2016 the psychosocial department in Merksplas Prison issued a report, drawn up on the basis of interviews with the first applicant, his case file, observations from the department’s staff, a social-welfare investigation conducted by the prison and an opinion from the psychiatrist. The report noted that the applicant no longer took drugs but that his psychotic problems were also triggered by stress. When his psychotic problems were in abeyance, his anti-social characteristics came to the fore. However, he seemed to be functioning in a more stable manner. After examining the applicant’s criminal record, his progress since the initial placement in confinement, the proposed reclassification and the absence of contra-indications, the psychosocial department issued a favourable opinion on his conditional discharge and reclassification as an in-patient in a psychiatric hospital. 13. On 15 November 2016 the Social Protection Division at the Antwerp Post-Sentencing Court (the “CPS”) granted the applicant a conditional discharge, with reclassification as an in-patient. 14. On 27 December 2016 the first applicant was again arrested and returned to the social protection unit of Merksplas Prison for failure to comply with the conditions imposed on him. 15. On 25 January 2017 the CPS set aside the first applicant’s conditional discharge, dismissed his request for final discharge, ordered his immediate placement in the social protection unit of Merksplas Prison, refused the applications for day release and decided that the prison governor was to issue a new opinion by 18 July 2017 at the latest. The CPS pointed out that it had jurisdiction to order final discharge under the Compulsory Confinement Act, which laid down a number of conditions: in particular, the [individual’s] mental health had to become sufficiently stable and he or she had to have successfully completed a minimum three-year period of conditional discharge. The CPS could do no more than apply the law, which provided for no other legal basis for definitive release. As a subsidiary consideration, the CPS noted that the legislature had not in any event wished to give retrospective effect to the “more lenient” law in relation to compulsory confinement decisions imposed on the basis of the previous Social Protection Act (1930). This was clear from the parliamentary drafting history. The Minister of Justice had merely suggested that those CPS which had jurisdiction in such cases were to review decisions on maintaining individuals in compulsory confinement with the necessary clemency. Thus, the Antwerp CPS considered that, irrespective of whether the punishable offences which had justified the applicant’s placement in compulsory confinement in 2007 could still be considered as a ground for compulsory confinement under the new Act, the applicant could not be released definitively, having regard to his current mental condition and the fact that he had not completed the period of conditional discharge provided for by law. 16. The first applicant lodged an appeal on points of law. Alleging a violation of Article 5 § 1 and Article 7 of the Convention, he argued, firstly, that the extension of his detention had not been “prescribed by law” or “lawful”, given that under the wording of the Compulsory Confinement Act the offences for which he had been placed in compulsory confinement could no longer give rise to a placement in confinement. Secondly, he submitted that there had been a breach of Article 5 § 4 and Article 13 of the Convention, arguing that those provisions required that any person whose detention was no longer lawful was entitled to have access to a court which could order his or her immediate release. By requiring an individual to carry out a three-year probationary period before becoming eligible for final discharge, the Act was in breach of the above-mentioned Articles. 17. By a judgment of 21 February 2017 (no. P.17.0125.N), the Court of Cassation dismissed the first applicant’s appeal on points of law. With regard to the argument alleging a violation of Articles 5 § 1 and 7 of the Convention, the Court of Cassation considered that Article 7 of the Convention was applicable only to penalties, and not to preventive measures such as compulsory confinement. For the remainder, Article 5 § 1 of the Convention did not prevent a compulsory confinement order, imposed by a decision which had acquired legal force, from becoming final in its turn and subsequently giving rise to an execution phase, which was not governed by the same rules as those in force when imposing the order. It followed that Article 5 § 1 did not mean that a confinement measure, imposed in proceedings which had become final, was no longer lawfully or legally imposed because the legislation had changed during the execution phase, and thus meant only that this particular measure could no longer be imposed in the future for the offence for which the applicant had already been placed in confinement. Assessment of a detainee’s mental condition and the resulting danger to society was not made solely on the basis of the offence for which he or she had been placed in confinement, but also in the light of a range of risk factors which were submitted to the CPS for consideration. In so far as this argument was based on another legal premise, it was lacking in legal merit. As to the allegation of violations of Article 5 § 4 and Article 13 of the Convention, the Court of Cassation noted that, under section 66 of the Compulsory Confinement Act, final discharge was in principle subject to completion of a probationary period. This condition did not imply that an individual placed in compulsory confinement did not have access to a court or to an effective remedy as required by the Convention. This argument, derived from another legal premise, lacked legal merit. 18. On 18 July 2017 the CPS again ordered the first applicant’s conditional discharge, subject to the condition that he was accepted as an in-patient by a psychiatric hospital in Zoersel. On 24 July 2017 the first applicant was taken to this hospital. Application no. 63921/17
19. On 14 November 2002 the committals division at the Turnhout Criminal Court ordered that the second applicant be placed in compulsory confinement for offences classified as attempted aggravated burglary, pursuant to section 7 of the Social Protection Act. 20. In a report of 18 October 2002 psychiatrist D. had described the second applicant as suffering from a serious personality disorder and a psychotic disorder which made him incapable of controlling his actions. 21. On 27 June 2003 the applicant was granted conditional discharge. He was placed in a psychiatric hospital in Scotland. 22. After escaping from that institution, he was found wandering in Belgium on 1 December 2010 and arrested. On 11 January 2011 the Antwerp Social Protection Committee (the “CDS”) ordered that he be returned to the psychiatric wing in Turnhout Prison. 23. As it proved impossible to have the second applicant placed in a Scottish institution, on 23 June 2016 the CDS ordered his placement, as a matter of priority, in a forensic psychiatry centre in Ghent or Antwerp. While waiting for a bed to become available, he was placed in the social protection unit of Turnhout Prison. 24. On 6 December 2016 the second applicant asked the CDS to rule on a number of practical arrangements for his compulsory confinement, given that he was still detained in Turnhout Prison. In his conclusions, he also requested his final discharge, raising the same arguments under Articles 5 and 7 of the Convention as those previously relied on by the first applicant (see paragraph 11 above). 25. On 21 December 2016 the psychosocial department at Turnhout Prison issued a report, drawn up on the basis of an interview with the second applicant, observations from the department’s staff, the case file and previous reports. The report found that it was necessary to place the applicant in a forensic psychiatry centre or a long-stay institution, since it did not appear possible to place him in a psychiatric hospital in Scotland, despite the efforts made to that effect. The report was accompanied by an opinion from the psychiatrist attached to the psychosocial department, dated 22 December 2016, which described ongoing schizophrenic symptoms that were being treated by anti-psychotic intramuscular injections. The psychiatrist considered that the confinement measure should be maintained, and the applicant placed in a forensic psychiatry centre. 26. In a judgment of 25 January 2017, the CPS noted that it was impossible to implement the CDS’s decision of 23 June 2016 (see paragraph 23 above). It therefore set aside this latter decision and decided that the second applicant’s compulsory confinement would continue in the social protection unit of Turnhout Prison, pending availability in a forensic psychiatric centre in Ghent or Antwerp. The CPS dismissed the arguments under Articles 5 and 7 of the Convention and the second applicant’s request for final discharge, on the same grounds as those used in respect of the first applicant (see paragraph 15 above). 27. The second applicant appealed on points of law, expanding on the same arguments as the first applicant (see paragraph 16 above). 28. By a judgment of 21 February 2017 (no. P.17.0124.N), the Court of Cassation dismissed the appeal on points of law on the same grounds as those used with regard to the first applicant (see paragraph 17 above). 29. On 22 February 2018 the CPS ordered that the second applicant be placed in the Antwerp forensic psychiatry centre. That decision was executed on an unspecified date. RELEVANT DOMESTIC LAW AND PRACTICE
30. The domestic law and practice in respect of compulsory confinement were set out in the Rooman v. Belgium judgment ([GC], no. 18052/11, §§ 75‑104, 31 January 2019). Particular attention is drawn to certain relevant provisions. Criteria justifying a compulsory confinement measure
31. Section 7 of the Law of 9 April 1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Persons Convicted of certain Sexual Offences, as in force at the time of the original confinement orders in respect of the applicants, was worded as follows:
“Except in cases of serious crimes committed for political motives or through the medium of the press, the investigating judicial authorities and the trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in section 1. ...”
32. Section 1 of the Act refers to persons who are suffering “either from a mental disorder or from a severe mental disturbance or defect making [them] incapable of controlling [their] actions”. 33. Section 9 of the Law of 5 May 2014 on compulsory confinement (“the Compulsory Confinement Act”), which entered into force on 1 October 2016, reads as follows:
“§ 1. Except in cases of crimes or serious offences committed for political motives or through the medium of the press, with the exception of press offences motivated by racism or xenophobia, the investigating judicial authorities and the trial courts may order the compulsory confinement of an individual:
i. who has committed a crime or serious offence that has harmed or could have harmed the physical or mental integrity of another person, and
ii. who, at the time of the order, is suffering from a mental disorder which destroys or seriously reduces his or her capacity for discernment or ability to control his or her actions, and
iii. in respect of whom there is a danger that he or she will commit fresh offences as referred to in i. above on account of his or her mental disorder, possibly combined with other risk factors.
...”
34. According to the report on the first reading of the draft law by the Justice Committee of the House of Representatives (Doc. 54‑1590/006), the introduction of a “threshold” in order to impose compulsory confinement was intended to focus the confinement measure on the target group which needed it, and to avoid a situation where compulsory confinement without limit of time could be imposed for relatively minor offences (page 4). In reply to a question posed by members of the Committee, the Minister of Justice indicated that, legally speaking, the provisions amending the scope of the Compulsory Confinement Act could not be considered as criminal-law provisions. In consequence, the principle of the retrospective application of the more lenient criminal law was not applied and the Compulsory Confinement Act did not, in principle, affect decisions in respect of persons suffering from mental disorders who had committed offences capable of giving rise to compulsory confinement under the Social Protection Act of 1930, but for whom compulsory confinement would no longer be possible under the new legislation (page 46). Provisions concerning the discharge of persons in compulsory confinement
35. In so far as relevant, section 18 of the Law of 9 April 1930, as in force at the time of the initial decisions to place the applicants in compulsory confinement, provided:
“The Social Protection Board may, of its own motion or at the request of the public prosecutor, the detainee or the latter’s lawyer, order the detainee’s release, without conditions or on a trial basis, where his mental condition has improved sufficiently and the appropriate conditions for his social rehabilitation have been established. If an application from the detainee or his lawyer is rejected, it may not be resubmitted within six months of the date of the rejection becoming final...”
36. The Compulsory Confinement Act (Law of 5 May 2014), provides that conditional discharge is one means of executing the compulsory confinement order, whereby the detainee is subject to the preventive measure imposed on him or her in the context of an in-patient or out-patient care path, subject to compliance with the conditions imposed during the probationary period (section 25). It may be granted at any point during compulsory confinement to the individual concerned, if there are no obstacles to discharge that cannot be addressed by imposing specific conditions and if the individual in question agrees to these conditions (section 26). 37. A detainee may be granted final discharge on expiry of a three-year probationary period, provided that the mental disorder in question has stabilised sufficiently for there no longer to be reasonable grounds to fear that, irrespective of his or her mental disorder, possibly combined with other risk factors, the individual concerned will again commit offences that harm or threaten to harm the physical or mental integrity of another person (section 66). 38. By two judgments, of 9 April 2019 (no. P.19.0273.N) and 11 June 2019 (no. P.19.0245.N) respectively, the Court of Cassation held that an individual in compulsory confinement who is no longer mentally ill and who is no longer dangerous must be granted final discharge, even if the three-year trial period has not yet expired. The Court of Cassation held that to interpret section 66 of the Compulsory Confinement Act otherwise would be contrary to Article 5 §§ 1 and 4 of the Convention. THE LAW
JOINDER OF THE APPLICATIONS
39. In view of the similarity between the applications, the Court considers it appropriate to order that they be joined (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
40. The applicants alleged that the fact of maintaining the compulsory confinement measure following the entry into force of the Compulsory Confinement Act was no longer compatible with Article 5 § 1 of the Convention, the relevant part of which provides:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
...”
Admissibility
41. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions

a)      The applicants
42. The applicants noted that the offences committed by them which had initially justified their placement in compulsory confinement could no longer give rise to a confinement measure, following the entry into force of the Compulsory Confinement Act. In consequence, they alleged that their deprivation of liberty no longer had a legal basis, which amounted to a breach of Article 5 § 1 of the Convention. They argued that the Compulsory Confinement Act provided that the offences they had committed did not justify the imposition of a confinement measure and that the Minister of Justice had indicated that the new legislation was intended to avoid “improper use” of compulsory confinement. In addition, before the new legislation entered into force, the Ghent Social Protection Board had reportedly granted final discharge to all persons in compulsory confinement who had committed offences that would no longer be considered grounds for confinement under Compulsory Confinement Act. The applicants in the present case were in an identical situation to those persons. It was thus clear that the continued imposition of compulsory confinement measures against them was not lawful.
b)     The Government
43. In the Government’s submission, it was indisputable that the criteria set out in the Winterwerp v. the Netherlands judgment (24 October 1979, § 39, Series A no. 33) had been met in the present case. Both applicants had been placed in compulsory confinement in compliance with the legal procedure in force at the material time and therefore “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1. With regard to the lawfulness of extending the compulsory confinement measures in spite of the fact that, under the Compulsory Confinement Act, the applicants were no longer liable for confinement on the basis of the offences they had committed, the Government drew attention to the Court’s case-law on Article 7 of the Convention, to the effect that the courts are obliged to apply the law whose provisions are most favourable to the defendant only where he or she has been the subject of a final decision that has not acquired the force of res judicata (they referred to Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 109, 17 September 2009). In the present case, however, the orders imposing compulsory confinement in respect of the applicants had been taken many years previously, had acquired the force of res judicata and had become final. With regard to the persistence of the mental disorders, the Government considered that the social protection bodies had duly verified if this was indeed the case on the basis of recent psychiatric and psychological reports, and had concluded that the applicants’ mental health did not allow their release.

Article of the Convention at issue: Article 5
Outcome: no_violation