FOURTH SECTION
CASE OF BJERG v. DENMARK
(Application no. 11227/21)
 
 
JUDGMENT
Art 5 § 4 • Inability to obtain judicial review of lawfulness of decisions ordering applicant’s readmission to psychiatric ward following his conviction and sentence to psychiatric treatment • Right to judicial review of potential amendment or revocation of sentence every six months after most recent court decision sufficient to meet Art 5 § 4 requirements • Art 5 § 4 not to be interpreted as requiring judicial review of each and every decision to discharge or readmit the applicant • Access to judicial review of administrative decisions, albeit at applicant’s own cost
 
STRASBOURG
13 December 2022
 
FINAL
 
13/03/2023
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bjerg v. Denmark,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Gabriele Kucsko-Stadlmayer, President,
 Faris Vehabović,
 Iulia Antoanella Motoc,
 Jon Fridrik Kjølbro,
 Branko Lubarda,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the application (no. 11227/21) against the Kingdom of Denmark lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Danish national, Mr Rasmus Ardian Bjerg (“the applicant”), on 12 February 2021;
the decision to give notice to the Danish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 22 November 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s allegations under Article 5 § 4 of the Convention that he, as a convicted person sentenced to treatment in a psychiatric ward, was unable to obtain the judicial review of the lawfulness of three decisions ordering his readmission to the ward. THE FACTS
2. The applicant was born in 1990 and lives in Holstebro. He was represented before the Court by Mr Tobias Stadarfeld Jensen, a lawyer practising in Aarhus. 3. The Government were represented by their Agent, Mr Michael Braad, of the Ministry of Foreign Affairs, and their co‑Agent, Ms Nina Holst‑Christensen, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. On 21 November 2013 the Herning District Court (Retten i Herning) found the applicant guilty of making threats and witness tampering. Having found that his mental state fell within the scope of section 69 of the Penal Code (see paragraph 17 below), he was sentenced to treatment in a psychiatric ward, with the possibility of being discharged under supervision of the ward and the Department of Prisons and Probation (Direktoratet for Kriminalforsorgen) in collaboration, the two together being responsible for deciding whether the applicant should be readmitted to the psychiatric ward (see paragraph 18 below). No maximum period was specified for the measure itself, but the District Court ruled that the maximum period of hospitalisation in a psychiatric ward was to be one year. 6. The applicant was admitted to a psychiatric ward on 17 December 2013 and discharged on 3 January 2014. Subsequently, he took up residence in an institution, where a “coordination plan” was drawn up for his stay. 7. In accordance with the terms set out in the treatment sentence, the applicant was readmitted to the psychiatric ward several times, including from 12 to 15 June 2018, from 21 to 24 September 2018 and from 26 September to 3 October 2018. The applicant requested a judicial review of the lawfulness of the readmission decisions. In his view, he had been readmitted only as a punishment for not complying with the coordination plan (see paragraph 6 above), including for having left the institution without permission. 8. The case was brought before the Viborg District Court (Retten i Viborg) by the Prosecution Service, which requested that either the case be dismissed or, in the alternative, the readmission decisions be approved. 9. In support of the primary claim, the Prosecution Service submitted that under section 72(2) of the Penal Code (see paragraph 17 below), there was no right to a judicial review of readmissions based on a sentence of psychiatric treatment. The applicant’s sentence had already provided a basis for the Department of Prisons and Probation and the consultant psychiatrist to readmit the applicant to a psychiatric ward. Instead, by virtue of section 72 of the Penal Code, the applicant had a right to request a judicial review every six months after the most recent review in order to determine whether his sentence should be amended or revoked. In accordance with a notice (RM no. 5/2000) issued by the Director of Public Prosecutions, compulsory admissions or readmissions which were in compliance with the terms of a sentence of psychiatric treatment, and under the supervision of a psychiatric hospital and the Department of Prisons and Probation, as in the present case, should therefore not be brought before the courts. The same applied to compulsory admissions based on a sentence of outpatient psychiatric treatment with the possibility of compulsory admission to a psychiatric ward, which, under the previous instructions (no. 234 of 10 December 1976), were to be brought before the courts. Admittedly, a High Court had recently granted a judicial review in a case concerning a compulsory admission based on a sentence of psychiatric treatment (case no. TfK 2018.447K), but that decision had run counter to previous case-law. 10. The applicant relied on, inter alia, Article 5 § 4 of the Convention, the preparatory works to section 72(2) (see paragraph 18 below), and the above‑mentioned High Court decision. 11. By a decision of 23 October 2018, the District Court decided to hear the case on the merits and approved the readmissions of the applicant. 12. The decision was upheld by the High Court of Western Denmark (Vestre Landsret) on 4 April 2019. 13. The case was brought before the Supreme Court (Højesteret), which by a decision of 12 August 2020 dismissed it, thereby finding for the Prosecution Service. It gave the following reasons:
“The issue in these proceedings before the Supreme Court is whether section 72(2) of the Penal Code provides for the right to a judicial review of the decisions to readmit [the applicant]. Under section 72(2) [of the Penal Code], a decision to vary or discontinue a measure imposed under section 69 must be made by court order at the request of, inter alia, the convicted person. A decision on readmission in pursuance of a sentence of [psychiatric] treatment which allows for readmission does not fall within the scope of section 72(2) of the Penal Code. The preparatory works to that provision provide no basis for considering that such decisions should be deemed to fall within the scope of that provision. The Supreme Court therefore finds that a situation such as that in the case at hand, where a decision on readmission has been made in pursuance of a sentence of treatment, does not fall within the scope of section 72(2) of the Penal Code. There is no basis for assuming that this outcome would be contrary to Article 5 § 4 of the Convention. It is observed in this connection that under section 72(2) of the Penal Code, there is a possibility of requesting a judicial review of a potential amendment or revocation of the sentence every six months.
... Since [the applicant] has not raised any objection to the sanction, the Supreme Court allows the claim of the Prosecution Service seeking to have the order of the High Court revoked and the case dismissed.”
14. In the meantime, on 9 January 2020, the High Court revoked the sentence at the request of the applicant, finding that the conditions for maintaining his sentence of psychiatric treatment were no longer met. 15. The applicant did not institute any proceedings under Article 63 of the Constitution (see paragraph 16 below), allegedly because his request for free legal aid for that purpose had been refused by the Civil Affairs Agency (Civilstyrelsen) on 17 November 2021. RELEVANT LEGAL FRAMEWORK AND PRACTICE
The Constitution
16. Article 63 of the Constitution reads as follows:
“(1) The courts of justice shall be empowered to decide any question relating to the scope of the executive’s authority. No person wishing to question such authority may, by taking the case to the courts of justice, avoid temporary compliance with orders given by the executive.”
The Penal Code
17. The relevant provisions of the Penal Code read as follows:
Section 16
“(1) Persons of unsound mind due to a mental disorder or a comparable condition at the time of committing the act shall not be punished. The same shall apply to persons who are severely mentally impaired. If the offender was temporarily in a state of mental disorder or a comparable condition due to the consumption of alcohol or other intoxicants, he may be punished if this is justified by special circumstances. (2) Persons who, at the time of the act, were slightly mentally deficient are not punishable, except in special circumstances. The same shall apply to persons in a state of affairs comparable to mental deficiency.”
Section 68
“If an accused is exempt from punishment pursuant to section 16, the court may decide on the use of other measures it considers expedient to prevent further offences. If less radical measures, such as supervision, decisions on place of residence or work, rehabilitation treatment, psychiatric treatment and so on are considered insufficient, it may be decided that the person in question should be admitted to a hospital for the mentally ill or to an institution for the severely mentally impaired, or placed under supervision with the possibility of administrative placement or in a suitable home or institution offering special attention or care. A person may be committed to safe custody in the circumstances set out in section 70.”
Section 69
“If, when the criminal act was committed, the offender was in a condition characterised by mental or behavioural impairment or disorder albeit not of the nature referred to in section 16, the court may decide on the use of measures such as those set out in the second sentence of section 68 instead of imposing a penalty, if they are considered expedient.”
Section 69a
“(1) Where a convicted person is to be placed in an institution as a result of a measure imposed under section 69 or where the measure makes such placement possible, a maximum period of five years for such a measure shall be specified, as must also the maximum period of confinement, which shall normally not exceed one year. The maximum period of five years shall also comprise any measures subsequently specified under section 72, in conjunction with section 69 and the second sentence of section 68, which result in the relaxation of the existing measure. In special circumstances, the court may order a new maximum period of two years for the measure or a new maximum period for the confinement at the request of the Prosecution Service. (2) In the cases mentioned in subsection (1), a maximum period for the measure shall normally not be specified if the convicted person is found guilty of homicide, robbery, deprivation of liberty, aggravated violence, threats of the kind referred to in section 266, arson, rape or other aggravated sexual assault or an attempt at any of the above‑mentioned offences. The second and third sentences of section 68a(2) shall apply, with the necessary modifications. (3) In respect of measures other than those referred to in subsection (1), a maximum period not exceeding three years shall be specified for the measure. In special circumstances, the court may order an extension of the maximum period at the request of the Prosecution Service. The overall period of the measure shall not exceed five years.
...”
Section 72
“(1) The Prosecution Service shall ensure that measures imposed under sections 68, 69 or 70 are not upheld for longer and to a greater extent than necessary. (2) A decision to vary or to discontinue with final effect a measure under sections 68, 69 or 70 shall be made by court order at the request of the convicted person, his or her guardian ad litem, the Prosecution Service, the management of the institution or the Prison and Probation Service. Any request from the convicted person, his or her guardian ad litem, the management of the institution or the Prison and Probation Service shall be made to the Prosecution Service, which shall bring it before the court as soon as possible. Where a request from a convicted person or his or her guardian ad litem is not allowed, a new request may not be submitted for six months following the date of the court’s decision.
...”
preparatory works to sections 68, 69, 69a and 72 of the Penal Code
18. Sections 68 to 72 of the Penal Code largely took their current wording from Act no. 428 of 31 May 2000. The purposes of that Act (set out in paragraph 1 of the general notes on Bill no. L 144 of 8 December 1999) are to ensure certain maximum periods for the measures which can be imposed on offenders under sections 68 and 69 of the Penal Code in place of a penalty and to ensure the regular judicial review of measures which are not limited in time. Paragraph 3.3.1 of the general notes on the Bill states as follows:
“There are three main types of measures for mentally ill offenders: sentences of placement in a hospital for the mentally ill, sentences of psychiatric treatment at or under the supervision of a psychiatric hospital and sentences of outpatient psychiatric treatment. These main types of measures may be varied by, for example, setting out a requirement of supervision by the Prison and Probation Service. A person sentenced to placement in a hospital for the mentally ill must stay in the hospital. Such a person may be discharged for outpatient treatment only if this is authorised by a court order; see section 72(1) of the Penal Code. A sentence of mental health treatment at or under the supervision of a hospital for the mentally ill gives the consultant psychiatrist the power to discharge the convicted person for treatment outside the hospital, including outpatient treatment, and to admit and readmit that person to hospital. The final revocation of such a measure also requires a court order; see section 72(1) of the Penal Code. Normally, a sentence of outpatient treatment does not entail a possibility of hospitalisation. However, the sentence may include an express authorisation to admit the relevant person to hospital. It is generally assumed in the case-law that compulsory admission in pursuance of a sentence of psychiatric treatment of the type mentioned above is subject to approval under section 72 of the Penal Code. When determining the type of sentence, the issues of safety and treatment must be taken into consideration. However, the assessment must also take into account proportionality. The measure imposed must therefore be the one which entails the least interference in view of the purpose.”
19. The issue of compatibility with the Convention was considered in paragraph 4 of the general notes on the Bill, which states as follows:
“If, on the other hand, it is a matter of imposing a penalty which entails deprivation of liberty based on conditions that may change over time, for example if the deprivation of liberty is based on the mental state of the convicted person or the fact that the convicted person is considered to endanger the safety of others, it follows from Article 5 § 4 of the Convention that the convicted person must have the right to request a review of the lawfulness of the continued deprivation of liberty at reasonable intervals (see, for example, X v. the United Kingdom, 5 November 1981, Series A no. 46; Thynne, Wilson and Gunnell v. the United Kingdom, 25 October 1990, Series A no. 190-A; and Hussain and Singh v. the United Kingdom, 21 February 1996, Reports [of Judgments and Decisions] 1996-I, pp. 252 and 280). If such a review is not possible, this may, depending on the circumstances, constitute a violation of Article 3 (see Hussain and Singh, [both cited above]). Considering, among other things, that section 72 of the Penal Code provides for the possibility of requesting regular judicial reviews of the question of upholding a measure entailing, inter alia, compulsory admission to a hospital for the mentally ill, the use of indefinite measures can hardly be considered to give rise to issues involving Article 3 or Article 5 § 4 of the Convention.”
Monitoring by the prosecution service of the enforcement of measures (section 72(1) of the Penal Code)
20. Under section 72(1) of the Penal Code (see paragraph 17 above), the Prosecution Service has a duty to ensure that a sentence of treatment is not upheld for longer and to a greater extent than is necessary. In accordance with paragraph 7.2 of the Notice of the Director of Public Prosecutions, the State Prosecutor must carry out the duty of monitoring the enforcement of measures by requesting that the institutions and authorities in charge of enforcing sentences of treatment issue an opinion once per year on the need to uphold the individual measure. If a sentence is enforced jointly by more than one institution or authority, for example a psychiatric ward and the Prison and Probation Service, both institutions or authorities are requested to issue an opinion. This also applies when a maximum period of the measure has been specified. The State Prosecutor must pay attention to whether there are considerations of treatment or proportionality justifying the need to uphold the measures and whether there continues to be a risk of recidivism. If there is no such risk, the State Prosecutor must initiate a judicial review of whether the measure should be upheld. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
21. In its General Report published in 1998 (CPT/Inf(98)12-part), the CPT stated, inter alia:
“56. Involuntary placement in a psychiatric establishment should cease as soon as it is no longer required by the patient’s mental state. Consequently, the need for such a placement should be reviewed at regular intervals. When involuntary placement is for a specified period, renewable in the light of psychiatric evidence, such a review will flow from the very terms of the placement. However, involuntary placement might be for an unspecified period, especially in the case of persons who have been compulsorily admitted to a psychiatric establishment pursuant to criminal proceedings and who are considered to be dangerous. If the period of involuntary placement is unspecified, there should be an automatic review at regular intervals of the need to continue the placement. In addition, the patient himself should be able to request at reasonable intervals that the necessity for placement be considered by a judicial authority.”
22. In a report dated 7 January 2020 (CPT/Inf (2019) 35) subsequent to its visit to Denmark from 3 to 12 April 2019, the CPT stated as follows:
“188. Involuntary hospitalisation may also be ordered by a criminal court in order to provide care to persons declared not responsible or of diminished responsibility, or to carry out a psychiatric assessment in the context of criminal proceedings, or to provide treatment to prisoners (hereinafter ‘forensic patients’). The patient in question may be accommodated in a forensic psychiatric unit or a civil psychiatric department. Patients admitted in the context of criminal proceedings can request a review of their placement every six months (and are informed about this right in writing when receiving the court’s placement decision). Apart from that, the Public Prosecutor in charge assesses the need for continued hospitalisation on the basis of the treating psychiatrist’s opinion once a year and may, in this connection, initiate a judicial review by a court. Otherwise, a regular court review takes place five years after the deprivation of liberty and thereafter every second year. During the court review, which usually takes place at the hospital, the patient is heard in person and represented by a lawyer free of charge. The CPT recommends that regular ex officio reviews of any involuntary forensic placement decision are carried out at least once every six months by an independent authority, preferably a court. Such reviews should be based on the opinion from a doctor who is independent of the department holding the patient concerned. 189. From the examination of patients’ files and numerous interviews with patients and staff, it transpired that the legal safeguards described were adhered to in practice. In particular, the decisions on involuntary placements and their reviews were well documented and reasoned and the procedural safeguards appeared to be respected. The significant number of appeals indicates that the patients were well informed about their right to appeal.”
THE LAW
ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
23. The applicant complained that he had not had a judicial review of the lawfulness of three specific readmissions decisions (see paragraph 7 above, that is from 12 to 15 June 2018, from 21 to 24 September 2018 and from 26 September to 3 October 2018), all ordered on the basis of his sentence of treatment in a psychiatric ward imposed on 21 November 2013 (see paragraph 5 above). He relied on Article 5 § 4 of the Convention. In so far as relevant, Article 5 of the Convention reads as follows:
“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:
(a)  the lawful detention of a person after conviction by a competent court;
... (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;
... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
...”
Admissibility
24. The Government submitted that the application should be declared inadmissible as manifestly ill-founded. 25. The applicant disagreed. 26. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

(a)   The applicant
27. The applicant submitted that the District Court in its judgment of 21 November 2013 (see paragraph 5 above) had essentially transferred the power to detain him to the administrative authorities, namely the Chief Physician in collaboration with the Department of Prisons and Probation. Their wide discretion meant that their decisions on detention should have been subjected to a subsequent judicial review in order to comply with Article 5 § 4 of the Convention. 28. The applicant argued that the one-year limitation on the period of hospitalisation in a psychiatric ward set out in the sentence had provided him with little reassurance, since the Prosecution Service could always request an extension of that period. 29. Moreover, the provision in section 72(2) of the Penal Code (see paragraph 17 above) only provided for a right to submit a request for a judicial review. It did not entail any statutory requirements as to when the case would actually be heard by the courts. Thus, it did not guarantee a judicial review every six months, as the wording of the provision might appear to indicate. 30. Lastly, he contended that Article 63 of the Constitution (see paragraph 16 above) did not meet the requirements of Article 5 § 4 of the Convention. The proceedings in question were civil and were not conducted with the requisite promptness. In addition, a plaintiff would be liable to pay court fees in an amount based on the monetary value of the claim, which would not be possible for the applicant given his financial situation. (b)   The Government
31. The Government maintained that there had been no violation of Article 5 § 4 of the Convention. They pointed out that the applicant had not been compulsorily confined in a psychiatric institution for an indefinite or lengthy period. The sentence imposed on 21 November 2013 had specifically provided for the possibility that the Department of Prisons and Probation, together with the consultant psychiatrist, could decide to readmit him to a psychiatric ward, but had specified a maximum period of one year in that regard. The three readmissions in dispute (see paragraph 7 above) had lasted between four and eight days. Moreover, the applicant had had access to judicial reviews of his sentence of treatment at reasonable intervals. In addition to his right to request a judicial review of the sentence every six months under section 72(2) of the Penal Code, the Prosecution Service had had to ensure that the measure was not being upheld for longer and to a greater extent than necessary (section 72(1) – see paragraph 17 above). 32. The Government also submitted that Article 63 of the Constitution (see paragraph 16 above) in any event provided for access to a judicial review of the administrative decisions regarding readmission to a psychiatric ward.

Outcome for Article 5: no_violation