FIFTH SECTION
 
 
 
 
 
 
CASE OF BERLAND v. FRANCE
 
(Application no. 42875/10)
 
 
 
 
 
 
JUDGMENT
(Extracts)
 
 
 
STRASBOURG
 
3 September 2015
 
 
This judgment is final but it may be subject to editorial revision. In the case of Berland v. France,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mark Villiger, President,
 Angelika Nußberger,
 Boštjan M. Zupančič,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 André Potocki,
 Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 26 May 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42875/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Daniel Berland (“the applicant”), on 21 July 2010. 2. The applicant, who had been granted legal aid, was represented by Mr J.C. Bonfils, a lawyer practising in Dijon. The French Government (“the Government”) were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs, Ministry of Foreign Affairs. 3. The applicant alleged that there had been a violation of Article 7 § 1 of the Convention. 4. On 31 January 2012 notice of the application was given to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1987 and is currently in the specialised hospital centre (CHS) of Sevrey. 6. On 12 September 2007 the applicant, who was 20, went to the workplace of C.G., who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on C.G., who died from a massive haemorrhage, having been wounded in the throat and thorax, and on two other individuals. On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people, and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS. 7. The applicant was examined by two boards of expert psychiatrists who found that, at the material time, he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article 122-1 of the Criminal Code .... 8. On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to the Investigation Division for a ruling as to the applicant’s lack of criminal liability, in accordance with Article 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity (hereafter “the 25 February 2008 Act”, ...). 9. In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply Article 122-1, first paragraph, of the Criminal Code. He ordered the transmission of the case file by the public prosecutor to the Principal Public Prosecutor for the purposes of referral to the Investigation Division. 10. On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant’s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in particular for a public hearing ... 11. In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing. At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively. He indicated that under the above-mentioned Article 706-122 of the Code of Criminal Procedure, the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment, for an indefinite duration, and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time. 12. In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed C.G.” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions. It ordered his compulsory hospitalisation pursuant to Article 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ..., on the grounds that “it transpire[d] from the proceedings that [the applicant’s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital”. The court also prohibited him, for a period of twenty years, from having any contact with the complainants and from possessing or carrying a weapon, those being preventive measures provided for under new Article 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant’s civil liability and on the claims of damages. The Investigation Division had previously ruled on the procedural objections raised by the applicant’s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of Article 7 of the Convention:
“... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ...
... contrary to the pleadings and contrary to the rules on preventive detention, the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article L. 3222-1 of the Public Health Code, which provides for hospitalisation arrangements specifically in such contexts, and the Prefect is immediately informed of the decisions. Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health. Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.”
13. The applicant appealed against that judgment on points of law. In his grounds of appeal he argued, relying on Articles 6 § 1 and 7 of the Convention, that the principle of “no punishment without law” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time. He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures, as this would breach the principle of the non-retrospective application of harsher criminal legislation. 14. Before the Court of Cassation, the public prosecutor, in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged, since “legally speaking, a state of criminal insanity related to a loss of discernment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law”. He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts: “as a result of such anticipation only the material element will stand, devoid of its punitive connotation, together with its ‘objective imputation’ to an individual, which would serve as a basis for granting redress to the ‘victims’ and was in itself the focus of the legislative intent”. On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally”. 15. In a judgment of 14 April 2010 the Court of Cassation dismissed the appeal on points of law:
“... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of Article 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘quasi-criminal sanctions’, being listed in the person’s criminal record. To dismiss those arguments, the judgment uses the above-mentioned reasoning. As those grounds stand, the judgment does not warrant the alleged complaint in so far as the provisions of Article 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles 706-135 and 706-136 ...
... there is sufficient evidence [against the applicant] to show that he committed the offences of premeditated murder and wounding ...”
16. In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution unescorted. The Prefect’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows:
“... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave. Those assessments reached me today. One states as follows: ‘In view of Mr Berland’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation, which seems indispensable’. The other one reads: ‘his current state of health allows the possibility of unescorted leave to be envisaged. We should gradually move towards trial arrangements to consolidate the rehabilitation plans’. Moreover, in accordance with his instructions, issued following the judgment against Mr Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital unescorted. The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against Mr Berland, pursuant to Articles 706-135 to 706-140 of the Code of Criminal Procedure ... In those circumstances, even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave, it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants. Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted, depending on any assessment data that you may wish to transmit to me.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
24. Relying on Article 7 § 1 of the Convention, the applicant complained about the retrospective application of the 25 February 2008 Act. The relevant part of that Article reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
A. Admissibility
25. The Government took the view that the measures imposed on the applicant pursuant to sections 706-135 and 706-136 of the Code of Criminal Procedure did not constitute “penalties” within the meaning of Article 7 of the Convention and that the application should be declared inadmissible for being incompatible ratione materiae with the provisions of the Convention, in accordance with Article 35 § 3 (a) of the Convention. 26. The applicant did not share the Government’s view and argued that the declaration of criminal insanity and the associated preventive measures constituted a “penalty” to which the principle of non-retrospective legislation in Article 7 § 1, second sentence, should apply. 27. The Court finds that the objection as to its lack of jurisdiction ratione materiae, in the circumstances of the case, is closely linked to the substance of the applicant’s complaint under Article 7 of the Convention. It thus decides to join it to the merits. The Court observes, moreover, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Whether Article 7 of the Convention is applicable
1. The parties’ submissions
28. The Government argued that the compulsory hospitalisation and the measures ordered pursuant to Articles 706-135 and 706-136 of the Code of Criminal Procedure did not constitute penalties within the meaning of Article 7 of the Convention because they did not follow a criminal conviction. The declaration of criminal insanity and the finding by the judicial authority responsible for pre-trial investigation that there was sufficient evidence that the individual had committed the offences as charged did not amount to an assessment of guilt; only the material attribution of the acts to the person charged had thereby been ascertained. In the Government’s submission, this is what distinguished the measures at issue from the system of preventive detention (Sicherungsverwahrung) under German law, as examined by the Court in M. v. Germany [(no. 19359/04, ECHR 2009)]. 29. The Government further took the view that the impugned measures did not satisfy the other criteria established by the Court as characterising a penalty (they referred to Welch v. the United Kingdom, 9 February 1995, Series A no. 307‑A, and M. v. Germany, cited above). They were classified in domestic law as “preventive measures” (mesures de sûreté) and the entire legislative history of the provisions showed that this term had been used from the outset. The Constitutional Council and the Court of Cassation had also confirmed that these measures did not have the nature of a sanction ... Moreover, in the Government’s opinion, this classification corresponded to the purpose and nature of the measures. They sought to “improve the medical and judicial treatment of offenders suffering from mental disorders or presenting a danger” (National Assembly, report in respect of the draft Law on preventive detention and declarations of criminal insanity, 12 December 2007), to guarantee the safety of others and to prevent disorder. The Government pointed out that, unlike a penalty, the measures did not have a punitive function but were preventive and remedial, a purpose that could be clearly seen from the very wording of Article 706-135 of the Code of Criminal Procedure. Thus, in the present case, the compulsory hospitalisation had been ordered in the light of two psychiatric assessments showing the applicant’s impaired discernment and the Investigation Division had justified the measure by his mental disorders which “represented a risk for the safety of others and required long-term care in hospital”. Those measures sought not to punish but to prevent a new offence from being committed and to protect society – this being, in the Government’s submission, a Convention imperative reiterated on several occasions (they cited Mastromatteo v. Italy [GC], no. 37703/97, ECHR 2002‑VIII). They further compared the French measures to the order existing in the Netherlands for confinement in a custodial clinic (as in Morsink v. the Netherlands, no. 48865/99, § 66, 11 May 2004). 30. As regards the legal provisions governing preventive measures, the Government asserted that they were not the same as those applicable to penalties. First, the provisions for the compulsory hospitalisation measure were strictly identical to those applying to other mandatory forms of hospitalisation in a non-criminal context. Unlike the situation in the case of M. v. Germany, the present case thus did not concern a prison sentence of unlimited duration. Admission to a specialised institution, like the other measures covered by Article 706-36, were strictly regulated. In contrast to penalties, they were temporary in nature and could be altered or lifted in the course of their implementation if the underlying reasons had disappeared. The lifting of such measures was conditional upon the result of a psychiatric assessment, thus demonstrating their remedial and preventive purpose. Lastly, the Government emphasised that any failure to fulfil the obligations resulting from these measures did not entail the activation of a suspended sentence, as in the case of a penalty, but would constitute a separate offence. 31. The Government concluded from the above that the impugned measures were not subject to the principle of non-retrospective legislation. 32. The applicant argued that the declaration provided for in Article 706-125 of the Code of Criminal Procedure was tantamount to a declaration of guilt. Prior to the 25 February 2008 Act there had been no form of judgment because the person concerned was recognised as incapable of being guilty; the investigating judge would find that there was no case to answer before any court. Similarly, no judicial prohibition on pain of a sanction could be ordered where there was no criminal liability. Since that Act, the person concerned was committed to stand trial in open court, resulting in a declaration that there was sufficient evidence that he had committed the offences as charged, together with the endorsement of his criminal record where preventive measures were also imposed. The applicant submitted that this was undoubtedly a criminal conviction. He added that the Investigation Division was now required by law to order compulsory hospitalisation, for an unlimited duration, whereas under the former rules it had been a mere option for the Prefect to decide. 33. As to the possibility of applying to the “liberties and detention judge” for the lifting of the preventive measures, the applicant explained that this fell under the ordinary rules governing any ancillary penalties of prohibition in criminal cases and that a convicted person could always ask the convicting court for such penalties to be disapplied during their enforcement. 34. The applicant disputed the argument that the hospitalisation in question was like any other and depended solely on the medical profession. He cited in evidence the Prefect’s decision of 23 February 2011 (see paragraph 16 above), which in his view showed that his deprivation of liberty closely resembled imprisonment, because it no longer depended solely on medical opinion but, on the contrary, remained subject to the approval of the public prosecutor, his opponent, through the intermediary of the Prefect. He claimed that he was medically imprisoned, in accordance with a new concept created by the 25 February 2008 Act. 35. Lastly, in the applicant’s submission, the fact that any breach of the terms of preventive measures carried a pre-determined penalty was, contrary to the Government’s contention, the decisive criterion for such measures to be regarded as penalties within the meaning of Convention. 2. The Court’s assessment
36. The Court reiterates that the concept of a “penalty” in Article 7 § 1 is, like the notions of “civil rights and obligations” and “criminal charge” in Article 6 § 1, an autonomous concept. To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch, cited above, § 27). 37. The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a criminal offence. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, cited above, § 28, and M. v. Germany, cited above, § 120). However, the severity of the measure is not in itself decisive, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned (see Welch, cited above, § 32, and Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006‑XV). 38. The Court has previously established, in its case-law, a distinction between a penalty, such as preventive detention under German law (see M. v. Germany, cited above; ...), and a preventive measure falling outside Article 7 of the Convention, such as the listing of an individual in a judicial register of perpetrators of sexual or violent offences (see Gardel v. France, no. 16428/05, ECHR 2009). It found that preventive detention constituted a “penalty”, noting in particular that it had been ordered following a conviction for attempted murder and robbery and pursued an aim that was more punitive than preventive, as shown by its enforcement in an ordinary prison, the lack of specialised treatment to reduce the danger presented by the person concerned, the unlimited duration of the detention, its imposition by the courts and the determination of its enforcement by the sentence execution courts, which belonged to the criminal justice system (see M. v. Germany, cited above, §§ 124-31). That distinction must nevertheless be used prudently, in view of the differences in the criminal laws of the member States that are enacted to protect society from the risks presented by dangerous criminals. The same type of measure may be classified as a penalty in one State and as a preventive measure, to which the nulla poena sine lege principle does not apply, in another (see M. v. Germany, cited above, §§ 74 and 126). 39. In the present case, the Court must ascertain whether the impugned measures, namely the compulsory hospitalisation and the preventive measures ordered in accordance with Article 706-136 of the Code of Criminal Procedure, should be regarded as penalties to which the principle of non-retrospective legislation, as enshrined in Article 7 § 1, second sentence, is applicable. 40. Having regard to the criteria developed in its case-law, the Court’s first task is to determine whether the impugned measures were imposed following a criminal conviction. In that connection

Article of the Convention at issue: Article 7
Outcome: no_violation