GRAND CHAMBER
CASE OF DENIS AND IRVINE v. BELGIUM
(Applications nos. 62819/17 and 63921/17)
 
 
 
 
JUDGMENT
Art 5 § 1 • Lawful arrest or detention • Refusal to discharge offenders with persisting mental disorders from compulsory confinement after new law reserving its use for most serious offences • Domestic courts’ approach recognising validity of confinement measures imposed under previous law neither arbitrary nor manifestly unreasonable • All three Winterwerp conditions for a lawful detention of a person “of unsound mind” met • Art 5 not requiring authorities to take into account the nature of the acts committed by the individual concerned, when assessing the persistence of the mental disorders
Art 5 § 4 • Review of lawfulness of detention • Three-year probationary period requisite for discharge from compulsory confinement not decisive in view of the offenders’ persisting mental disorders

 
STRASBOURG
1 June 2021
 
This judgment is final but it may be subject to editorial revision. In the case of Denis and Irvine v. Belgium,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Robert Spano, President,
 Ksenija Turković,
 Paul Lemmens,
 Síofra O’Leary,
 Yonko Grozev,
 Helen Keller,
 Aleš Pejchal,
 Krzysztof Wojtyczek,
 Egidijus Kūris,
 Mārtiņš Mits,
 Georgios A. Serghides,
 Lado Chanturia,
 Gilberto Felici,
 Arnfinn Bårdsen,
 Darian Pavli,
 Saadet Yüksel,
 Peeter Roosma, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 21 October 2020 and 31 March 2021,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns the alleged unlawfulness of the applicants’ continued compulsory confinement, given that the acts for which they had been placed in confinement could no longer give rise to a confinement measure under new legislation which entered into force during their detention. The applicants also complain that it was impossible for them to obtain immediate and final discharge. They rely on Article 5 §§ 1 and 4 and Article 13 of the Convention. PROCEDURE
2. 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, and a British national, Mr Derek Irvine (“the applicants”), on 21 August 2017. 3. 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. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). 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. The parties exchanged submissions on the admissibility and merits of the applications. 5. On 8 October 2019 a Chamber of that Section, composed of Jon Fridrik Kjølbro, Faris Vehabović, Paul Lemmens, Iulia Antoanella Motoc, Carlo Ranzoni, Stéphanie Mourou-Vikström, Péter Paczolay, judges, and Andrea Tamietti, Deputy Section Registrar, decided, unanimously, to join the applications and declared them admissible. 6. On 2 January 2020 the applicants requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. On 24 February 2020 the panel of the Grand Chamber granted that request. 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. At the second deliberations, Peeter Roosma, substitute judge, replaced Ivana Jelić, who was unable to take part in the further consideration of the case (Rule 24 § 3). 8. The applicants and the Government each filed further written observations on the merits (Rule 59 § 1). The British Government did not avail themselves of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 3). 9. A hearing took place in the Human Rights Building, Strasbourg, on 21 October 2020 (Rule 59 § 3); on account of the public-health crisis resulting from the Covid-19 pandemic, it was held via video-conference. The webcast of the hearing was made public on the Court’s Internet site on the following day. There appeared before the Court:
(a)  for the Government
Ms I. Niedlispacher, Agent,
Mr K. Lemmens, lawyer, Counsel,
Ms J. Lefebvre, co-Agent, Adviser;
(b)  for the applicants
Mr P. Verpoorten, lawyer, Counsel. The Court heard addresses by Mr Verpoorten, Ms Niedlispacher and Mr Lemmens and the replies given by Mr Verpoorten and Ms Lefebvre to questions put by the judges. THE FACTS
10. The applicants were born in 1984 and 1964 respectively. At the time they lodged their applications, the first applicant was detained in the Bethaniënhuis Psychiatric Hospital in Zoersel and the second applicant was being held in the social protection unit of Turnhout Prison.
application no. 62819/17 (Mr DENIS)Background to the proceedings being challenged before the Court

11. By a judgment of the Turnhout Criminal Court of 18 June 2007 the first applicant was placed in compulsory confinement for acts classified as 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 as amended by the Law of 1 July 1964 (the “Social Protection Act”; see paragraph 58 below), applicable at the material time. 12. In a report of 22 January 2007, prepared at the request of the Turnhout public prosecutor, 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, and he posed a danger to society and to himself, given his ongoing use of drugs and his psychotic disorders. 13. 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. 14. On 1 October 2016 new legislation, namely the Compulsory Confinement Act of 5 May 2014 (hereafter “the Compulsory Confinement Act”; see paragraphs 70 et seq. below), entered into force. This Act abrogated and replaced the Social Protection Act (see paragraph 11 above). 15. 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 used drugs but that his psychotic problems were also triggered by stress. When his psychotic problems were in abeyance, the applicant’s anti-social characteristics came to the fore. However, he seemed to be functioning in a more stable manner. The likelihood that he would commit further punishable acts was considered rather low. 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, with reclassification as an in-patient in a psychiatric hospital. 16. 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. 17. 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. The proceedings being challenged before the Court
18. On an unspecified date, in the context of the periodic review of his confinement, 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 acts 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”. He requested the application of Article 2 of the Criminal Code and Article 7 of the Convention, enshrining the principle of retrospective application of the more lenient criminal law. In addition, in the first 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 the extension of the compulsory confinement measure. He ought therefore to be released definitively. 19. On 25 January 2017 the CPS dismissed the first applicant’s request for final discharge. It also revoked his conditional 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. 20. The CPS pointed out, firstly, that Article 7 of the Convention was not applicable to the first applicant’s situation, since that provision concerned “penalties”, while compulsory confinement was a preventive measure. The criminal court’s judgment of 18 June 2007 (see paragraph 11 above) had ordered the applicant’s placement in compulsory confinement and was not a criminal conviction. It followed that Article 2 of the Criminal Code was also not applicable. The judgment in question had become res judicata and was therefore final. No appeal could be lodged against it. Even supposing that a criminal-law penalty had been lodged, it was not therefore possible to apply the more lenient criminal law retrospectively. 21. The CPS also indicated that it had jurisdiction to order final discharge under the Compulsory Confinement Act, which set out a number of conditions that had to be verified strictly. In particular, the individual concerned had to have successfully completed a minimum three-year period of conditional discharge, and his or her mental health had to have become sufficiently stable for there no longer to be reasonable grounds to fear that, whether or not on account of the mental disorder, potentially combined with other risk factors, he or she would again commit offences that harmed or threatened to harm the physical or mental integrity of another person. The Act did not provide any other legal basis for an individual’s final discharge. The CPS could merely apply the law. 22. 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 orders issued 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 (see paragraph 82 below). Thus, the CPS considered that, irrespective of whether the punishable acts which had justified the applicant’s placement in compulsory confinement in 2007 could still be considered as grounds for compulsory confinement under the new Act, the applicant could not be granted final discharge, having regard to his current mental condition and the fact that he had not completed the period of conditional discharge provided for by law. 23. The first applicant appealed on points of law. In a first argument alleging a violation of Article 5 § 4 and Article 13 of the Convention, he submitted 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 Compulsory Confinement Act was in breach of the above-mentioned provisions. The CPS judgment had thus breached those provisions in ruling that the applicant was unable at the relevant time to make a request for final discharge. 24. The first applicant raised a second argument, alleging a breach of Article 5 § 1 and Article 7 of the Convention, to the effect that the more favourable criminal law ought to be applied and that compulsory confinement measures, unlike penalties, were not imposed on a final basis, in that they ought always to be imposed lawfully and in accordance with a procedure prescribed by law, within the meaning of Article 5 § 1 (e). The danger posed to society by the applicant could therefore not be based on offences which were no longer taken into consideration in imposing such confinement. In addition, the CPS judgment did not find that the applicant’s mental illness had ever given rise to punishable acts which came within the scope of the Compulsory Confinement Act, or that the applicant represented a danger for society. 25. 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. 26. With regard 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. 27. 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. Thus, the only consequence of this provision was that a compulsory confinement 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 had been submitted to the CPS for consideration. In so far as this argument was based on another legal premise, it was lacking in legal merit. The Court of Cassation added that, in the absence of arguments by the applicant to this effect, the CPS was not required to give specific reasons as to why the confined individual might, on account of his or her mental state, recommit offences that harmed or threatened to harm the physical or mental integrity of another person. 28. 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 the Bethaniënhuis Psychiatric Hospital in Zoersel. In particular, it considered that, given that no new offences had been committed during his compulsory confinement and the relatively low risk of re-offending, treatment in that hospital seemed to be appropriate to the seriousness of his problem and ensured the necessary level of safety. The first applicant was transferred there on 24 July 2017. Developments in the situation since the application was lodged
29. On 23 November 2017 the CPS decided that the first applicant’s therapeutic treatment should take place on an out-patient basis, with residence at his parents’ home. The psychiatrist treating him had considered that he was ready for this step, and his reclassification had been duly prepared. The first applicant gave an undertaking to take his medication regularly and to continue his psychiatric therapy. 30. On 13 July 2018 the CPS suspended the first applicant’s conditional discharge and ordered that he be placed immediately in the psychiatric wing of Antwerp Prison, on the grounds that he had been arrested by the police. The CPS considered that the reasons for the provisional arrest were so serious that it wished to discuss them with the first applicant before taking a decision on whether or not to maintain the conditional discharge. It would take a decision within a one-month period, during which the first applicant would remain in confinement. 31. On 31 July 2018 the CPS decided not to revoke the first applicant’s conditional discharge, but to order that he re-enter the Zoersel Psychiatric Hospital from the following day. It noted, in particular, that the first applicant had re-entered that hospital voluntarily on 3 April 2018 and that an incident had occurred during the night of 25 to 26 June 2018, during which he had been aggressive and had damaged property. 32. On 5 December 2018 the CPS decided once again that the first applicant’s therapeutic treatment would take place on an out-patient basis, with residence in his parents’ home. It appeared, in particular from a report by the probation officer, that his mental state had stabilised sufficiently for this to be an option. 33. The first applicant’s conditional discharge was again suspended by a CPS decision of 9 January 2019, on the grounds that he had been arrested by the police. The CPS considered that the reasons for the provisional arrest were so serious that it wished to discuss them with the first applicant before taking a decision on whether or not to continue the conditional discharge. It would take a decision within a one-month period, during which the first applicant would continue to be held in compulsory confinement. 34. On 6 February 2019 the CPS set aside the first applicant’s conditional discharge on the grounds that he had been responsible for two serious incidents involving physical and verbal aggression and damage to a room in Zoersel Hospital. As the first applicant’s return to that establishment was not possible in the foreseeable future, it was necessary to find another psychiatric hospital that was able to admit him. Since no reclassification option in a secure establishment was available, the CPS ordered that the first applicant be placed in the social protection unit of Turnhout Prison, pending the availability of a place in a psychiatric hospital. 35. On 15 July 2019 the CPS ordered that the first applicant be placed in the social protection unit of Merksplas Prison, pending a placement in a medium-security prison. 36. An appeal on points of law lodged by the first applicant against that judgment was dismissed by the Court of Cassation on 14 August 2019 (P.19.0828.N). In particular, the argument alleging a violation of Article 5 § 1 of the Convention was dismissed on the grounds that it was clear from section 66 of the Compulsory Confinement Act that an assessment of the mental health condition of an individual in confinement, and the danger that he or she posed to society, was conducted not only in the light of the offence for which confinement had been imposed, but also with regard to a range of risk factors submitted for the CPS’s analysis. 37. On 15 January 2020 the CPS confirmed that the first applicant was to remain in Merksplas Prison and his application for final discharge was rejected. The psychosocial department in Merksplas Prison had considered that there was a high likelihood of aggressive conduct and reoffending. There was also a real risk that he would resume drug use. The CPS held that the first applicant could not be released immediately, especially in view of his state of mental health as it then stood, the fact that he represented a real and serious danger to the integrity of others and that structured surveillance to avert this possibility remained necessary. It was clear that the first applicant ought to be placed as quickly as possible in an establishment which offered a therapeutic structure and sufficient guarantees for the safety of other persons. No places were currently available in this type of establishment, and there was no specific reclassification project. It was therefore necessary to order the first applicant’s continued detention in Merksplas Prison, while waiting to find an appropriate therapy plan for him in a secure setting. 38. By a judgment of 18 February 2020 (P.20.0094.N), the Court of Cassation dismissed an appeal on points of law lodged by the first applicant. It noted, among other points, that inappropriate therapy could be unlawful for the purposes of Articles 5 § 1 (e) and 5 § 4 of the Convention, but that this fact did not justify the discharge of an individual from compulsory confinement if this would result in a danger to society. 39. On 20 May 2020 the Antwerp CPS ordered that the first applicant again be granted conditional discharge, in the St-Jan-Baptist psychiatric centre in Zelzate. He was transferred there on 12 June 2020. 40. On 18 June 2020 the Brussels Court of First Instance (Dutch-speaking Division) partly upheld the first applicant’s claim under Articles 1382 and 1383 of the Civil Code for compensation in respect of damage sustained as a result of his deprivation of liberty in prison without an adapted therapeutic context, in conditions which breached Articles 3 and 5 § 1 of the Convention. The court awarded the applicant 6,000 euros (EUR) in lump-sum compensation, with interest from the date of the judgment, and EUR 1,080 in respect of procedural costs. APPLICATION NO. 63921/17 (MR IRVINE)Background to the proceedings being challenged before the Court

41. On 14 November 2002 the committals division at the Turnhout Criminal Court ordered that the second applicant be placed in compulsory confinement pursuant to section 7 of the Social Protection Act for acts classified as attempted aggravated burglary. 42. In a report of 18 October 2002, prepared at the request of the investigating judge at the Antwerp Court of First Instance, 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. 43. On 27 June 2003, following contacts between the relevant Belgian and Scottish authorities, the applicant was granted conditional discharge. He was placed in a psychiatric hospital in Scotland. 44. After absconding 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 social protection unit in Turnhout Prison. 45. 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. The proceedings being challenged before the Court
46. On an unspecified date the second applicant asked the CPS to rule on a number of practical arrangements for his compulsory confinement, given that he was still detained in Turnhout Prison. In his conclusions, relying on Articles 5 and 7 of the Convention, he also requested his final discharge, on the same grounds as the first applicant (see paragraph 18 above). 47. 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 subsequently supplemented 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. 48. In a judgment of 25 January 2017, the CPS held that it was impossible to implement the CDS’s decision of 23 June 2016 (see paragraph 45 above). It therefore set aside the priority aspect of the latter decision and decided that the second applicant’s compulsory confinement was to continue in the social protection unit of Turnhout Prison, pending the availability of a place 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 paragraphs 19 et seq. above). 49. The second applicant appealed on points of law, relying on the same arguments as the first applicant (see paragraphs 23 and 24 above). 50. 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 it had used with regard to the first applicant (see paragraphs 25-27 above). Developments in the situation since the application was lodged
51. On 22 February 2018 the CPS ordered that the second applicant be placed in the Antwerp forensic psychiatry centre under the emergency procedure. That decision was executed on an unspecified date. 52. On 30 March 2018 the CPS upheld the judgment of 22 February 2018 and set out the arrangements and conditions for a placement in the Antwerp forensic psychiatry centre. 53. On 28 June 2019 the Antwerp CPS confirmed the second applicant’s continued detention in the Antwerp forensic psychiatry centre and the conditions for day-release. In spite of reasonably positive developments in the second applicant’s conduct, the CPS found, on the basis of clinical factors, that the risk of violent reoffending was high in the event of an immediate return to society. The most serious risk was related to his failure to grasp that he was ill and that he was suffering from a psychiatric problem. A new opinion by the Antwerp forensic psychiatry centre was to be delivered by 28 June 2020 at the latest, in the context of the automatic periodic review of the compulsory confinement. 54. On 8 April 2019 the Antwerp Court of First Instance partly allowed the second applicant’s claim, under Articles 1382 and 1383 of the Civil Code, for compensation in respect of damage sustained as a result of his deprivation of liberty in prison in conditions that were incompatible with Articles 3 and 5 § 1 of the Convention. The court awarded him EUR 7,350 in compensation, with interest to be paid from 23 March 2015. 55. On 26 August 2020 the Antwerp CPS decided to postpone its examination of the file until 26 October 2020 pending a reply concerning the possibility of transferring the second applicant to the United Kingdom and appointing a temporary administrator. RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE
56. The domestic legal framework 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). To facilitate reading of the present judgment, this information has been reproduced and expanded below. 57. The applicants’ initial compulsory confinement took place in application of the Law of 9 April 1930 on Social Protection 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”), now repealed and replaced by the Law of 5 May 2014 on Compulsory Confinement (“the Compulsory Confinement Act”), as amended by the Law of 4 May 2016 on Compulsory Confinement and Justice (Miscellaneous Provisions” (see also paragraph 90 below). The Compulsory Confinement Act entered into force on 1 October 2016. SOCIAL PROTECTION ACT OF 9 aPRIL 1930
58. Under section 7 of the Social Protection Act, the investigating judicial authorities and the trial courts could order the compulsory confinement of individuals who had been charged with an act classified as a crime or serious offence and who were suffering from one of the conditions set out in section 1 of that Act, namely: “either from a mental disorder or from a severe mental disturbance or defect making [them] incapable of controlling [their] actions”. 59. In addition, where an individual convicted of a crime or serious offence was recognised in the course of imprisonment as suffering from a mental disorder or from a severe mental disturbance or defect making them incapable of controlling [their] actions, he or she could be placed in compulsory confinement by a decision of the Minister of Justice, issued upon the advice of a Social Protection Board (Commission de défense sociale or “CDS”; section 23 of the Social Protection Act). 60. The CDS were set up in order to take charge of compulsory confinement. They were composed of a serving or retired judge, who presided, and also a lawyer and a doctor (section 12 of the Social Protection Act). 61. The CDS decided on the place of compulsory confinement. It was chosen from the institutions designated by the Government for that purpose. However, the CDS could, for therapeutic reasons and by means of a decision giving specific reasons, order the individual to be placed and held in another institution where an appropriate level of security and treatment could be guaranteed (section 14 of the Social Protection Act). 62. In practice, if the CDS decided that the compulsory confinement should take the form of a placement, the detained individual could be placed in a social protection institution, a social protection facility attached to a prison and specifically designated for persons in compulsory confinement, or in an establishment outside the usual system. 63. The CDS could, of its own motion or at the request of the Minister of Justice, the public prosecutor, the detainee or the latter’s lawyer, order that the detainee be transferred to another institution. Where an application from the detainee or his lawyer was rejected, they could resubmit it after six months. The CDS could also permit the detainee to be transferred to a semi‑custodial regime, in accordance with conditions and rules that were to be laid down by the Minister of Justice (section 15 of the Social Protection Act). 64. Before ruling under the above-mentioned sections 14 and 15, the CDS could request an opinion from a doctor of its choice, from inside or outside the public administration. The detained person could also be examined by a doctor of his or her choice and submit the latter’s opinion. This doctor was entitled to read the detainee’s file. The public prosecutor, the director or doctor of the social protection or appropriate facility, the detainee and his or her lawyer were heard. The file was made available to the detainee’s lawyer for four days. Detained persons were represented by their lawyer if it was considered harmful for them to be present while medical and psychiatric questions concerning their state of health were discussed (section 16 of the Social Protection Act). In an emergency, the chairperson of the CDS or the Minister of Justice could order a detained person’s transfer (section 17 of the Social Protection Act). 65. The CDS monitored the detained individual’s situation and could, of its own motion or at the request of the public prosecutor, the detained person or his or her lawyer, decide on final or conditional discharge, where the individua’s mental health had sufficiently improved and the conditions for social reintegration were met. To this end, the CDS could, of its own motion or at the request of the detained person or his or her lawyer, instruct the department responsible for prisons to draw up a brief information report or prepare a social welfare report. An application for discharge could be submitted every six months (section 18 of the Social Protection Act). 66. Where conditional discharge was ordered, the detainee was subject to medical and legal supervision, the duration and conditions of which were specified in the order. Where the released detainee’s conduct or mental condition revealed a danger to society, for example in the event of failure to comply with the conditions imposed, he or she could be returned to compulsory confinement in a psychiatric wing on an application by the public prosecutor (section 20 of the Social Protection Act). 67. The CDS’s decisions were open to appeal before the Higher Social Protection Board (Commission supérieure de défense sociale, or “CSDS”) within 15 days of the date of notification. The CSDS was composed of a serving or retired judge from the Court of Cassation or a court of appeal, who chaired the Board, a lawyer and the medical director of the Prison Psychological Service (Service d’anthropologie pénitentiaire) (section 13 of the Social Protection Act). 68. The CSDS gave its decision within one month of receiving an application. The detainee and his or her lawyer were heard, and the above‑mentioned provisions of section 16 were applicable (section 19bis of the Social Protection Act). 69. An appeal on points of law to the Court of Cassation could be made by a detainee’s lawyer against the CSDS’s decisions confirming decisions to dismiss a detainee’s application for discharge or declaring well-founded the public prosecutor’s objection to a discharge order (section 19ter of the Social Protection Act). THE COMPULSORY CONFINEMENT ACT OF 5 maY 2014General context

70. In the context of the execution of leading judgments delivered in a series of cases brought against Belgium concerning the detention of perpetrators of acts classified as crimes or serious offences who suffer from psychiatric disorders and are detained in the psychiatric wings of prisons (see L.B. v. Belgium, no. 22831/08, 2 October 2012; Claes v. Belgium, no. 43418/09, 10 January 2013; Dufoort v. Belgium, no. 43653/09, 10 January 2013; and Swennen v. Belgium, no. 53448/10, 10 January 2013), the Belgian authorities, motivated by a wish to achieve optimal reintegration into society, have taken general measures to improve the situation of detainees. In this context, amendments have been made to the legislative framework on placement in specialised psychiatric establishments. 71. The Compulsory Confinement Act (Law of 5 May 2014), which repeals the Social Protection Act of 9 April 1930, provides for several areas of progress, intended to place emphasis on the care package for individuals in compulsory confinement. It defines compulsory confinement as a security measure, intended both to protect society and to ensure that the detained individual receives the treatment required by his or her condition, with a view to reintegration into society. Account being had to public safety and the health condition of the detainee, this individual must be offered the necessary treatment in order to live his or her life in a manner compatible with human dignity. This treatment must enable the detainee to reintegrate into society as successfully as possible and is administered – where this is indicated and practicable – as part of a care path, in order to be adapted to the individual (section 2). 72. The Compulsory Confinement Act provides that a psychiatric expert report or forensic psychological report must be drawn up prior to any compulsory confinement measure (section 5 § 1). The experts must comply with professional standards. The expert reports must be prepared by a panel or with the assistance of other specialists in behavioural sciences (section 5 § 2). The experts are required to submit a detailed report, drawn up on the basis of a standard format (section 5 § 4). There must be a possibility to request a report by another expert (section 8 § 1). Another new feature of this Act is that the individual concerned by a report may be assisted not only by his or her lawyer, but also by a doctor or psychologist of his or her own choosing (section 7). 73. Placement remains the central measure under this system. It must take place in a social protection institution or unit or a forensic psychiatry centre in the case of “high risk” detainees, or in a facility recognised by the relevant authority, run by a private institution, a community, a region or a local authority, for detainees who represent a “low or moderate risk” (section 19, in conjunction with section 3(4)(b), (c) and (d)). 74. An external institution which has signed a cooperation agreement – specifying, in particular, its capacity, the profile of detainees admitted and the procedure to be followed for admittance (section 3 (5)) – cannot refuse to accept a patient (section 19). Case-by-case approval is not required, provided that the criteria in the placement agreement are met. 75. Under the new Act, the sole bodies with responsibility for managing and monitoring compulsory confinement are the social protection divisions (chambre de protection sociale - “the CPS”), which have been set up within the courts responsible for the execution of sentences (section 3(6)). These divisions are composed of a judge (in the chair), a specialist adviser on reintegration into society and a specialist adviser on clinical psychology (Article 78 of the Judicial Code). They decide on the placement and transfer of detainees. They also rule on day-release, short-term leave of absence, limited detention, electronic, surveillance, conditional discharge, early discharge with a view to expulsion or extradition, and, at last instance, final discharge. They have wide discretion, the aim being to draw up an individualised confinement path for the detainee, adapted to his or her mental disorder and risk level, while complying with the rules applicable to the relevant placement facility. 76. Where the CPS orders a placement, it sets out in its judgment the date by which the director of the establishment or the head of the treatment team – depending on the establishment in which the detainee is resident – must submit an opinion. This period must not exceed one year from the date of the judgment (section 43). 77. A review hearing before the CPS must take place not later than two months after receipt of the opinion from the director of the establishment or the head of the treatment team and following an opinion from the public prosecutor’s department (section 50). 78. An appeal on points of law may be lodged by the public prosecutor or by the detainee’s lawyer against the CPS’s decisions concerning the granting, refusal or setting aside of limited detention, electronic surveillance, conditional discharge, early discharge with a view to expulsion or extradition, and final discharge (section 78). Criteria justifying a compulsory confinement measure
79. The relevant parts of section 9 of the Compulsory Confinement Act, as amended by the Law of 4 May 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 acts as referred to in i. above on account of his or her mental disorder, possibly combined with other risk factors. The investigating judicial authorities or the trial courts shall assess, providing reasons, whether the acts harmed the physical or mental integrity of another person.
...”
80. With regard to the reasons for amending the criteria justifying a compulsory confinement measure as provided for by section 9 of the above-cited Act, the draft law on compulsory confinement (miscellaneous provisions) of 18 January 2016, examined by the House of Representatives (Parliamentary Documents, House of Representatives, 2015-2016, DOC 54‑1590/001, p. 101), which became the above-cited Law of 4 May 2016, stated:
“The first paragraph of section 9 has been redrafted with a view to refining the possibility of imposing compulsory confinement. The aim is to focus on those individuals for whom this preventive measure is genuinely necessary from the outset, for an indefinite period, and from whom society and the victims must be protected. ... This will make it possible to avoid improper use of the compulsory confinement measure.”
81. According to the report on the first reading of the draft law by the Justice Committee of the House of Representatives (Parliamentary Documents, House of Representatives, 2015-20016, DOC 54‑1590/006), the Minister of Justice explained that 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 questions posed by members of the Committee, the Minister of Justice indicated that compulsory confinement was a preventive measure rather than a penalty. It was a serious measure, in that it was open-ended and it could give rise to a deprivation of liberty. For that reason, it was disproportionate to authorise this measure for acts which did not reveal any real danger to society (page 37). 82. With regard to the transitional provisions (see paragraph 88 below), the Minister of Justice indicated that 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 acts 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. The relevant CPS should examine these decisions with the necessary clemency under section 135 of the Compulsory Confinement Act (page 46). Provisions concerning the discharge of persons in compulsory confinement
83. The Compulsory Confinement Act 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). 84. 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, whether or not on account 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). 85. On becoming res judicata a judgment granting final discharge discontinues the compulsory confinement (section 72). 86. 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 clarified the scope to be given to the manner of execution of confinement orders as provided for in the Law of 5 May 2014, in the light of Article 5 § 1 of the Convention. In particular, it stated that if it appeared that the mental disorder in question has stabilised sufficiently but that there are reasonable grounds to fear that the detainee will again commit the offences referred to in section 9 of the Act, the CPS cannot grant final discharge. If it appears that the detainee’s condition has progressed to such an extent that there is no longer any question of a mental disorder, it is for the CPS to decide whether, having regard to the risk of reoffending and the aims of Article 5 § 1 (e) of the Convention, placement is still necessary and whether the above-mentioned risk cannot be averted by less restrictive means of executing the compulsory confinement, such as conditional discharge. In contrast, if it appears that the detainee’s condition has progressed to such an extent that there is no longer any question of a mental disorder and there are no longer reasonable grounds to fear that the individual concerned will again commit the offences referred to in section 9 of the Law of 5 May 2014, the CPS must grant the individual in confinement final discharge, even if the three-year probationary period has not yet been completed. The Court of Cassation held that to interpret section 66 of the Compulsory Confinement Act otherwise, that is, as implying that an individual in compulsory confinement who satisfies the condition regarding stabilisation of his or her mental state could only be granted final discharge on expiry of this probationary period, would be contrary to Article 5 §§ 1 and 4 of the Convention. Transitional provisions
87. Section 134 of the Compulsory Confinement Act states that its provisions are to apply to all pending cases, subject to the application of section 135 § 4. 88. In so far as relevant, section 135 provides:
“§ 1. When the present Act enters into force, all the files of the individuals in compulsory confinement for whom the Social Protection Committees have jurisdiction shall be entered ex officio and without payment in the general register of the relevant social protection division at the post-sentencing court.
...
§ 4. The director or person responsible for treatment shall draw up, in accordance with section 47, an opinion, no sooner than four months and no later than six months after the entry into force of the present Act. If no opinion is issued six months after the entry into force of the present Act, the public prosecutor shall apply to the social protection division.
§ 5. The persons in compulsory confinement who, at the date of entry into force of the present Act, are placed in an institution which is not recognised by the competent authority or with which no agreement concerning the placement has been drawn up, may remain there after the entry into force of the present Act, unless the social protection division decides that they are to be placed in an institution which has received the relevant licence.
...”
89. Thus, the Compulsory Confinement Act does not contain any transitional measure derogating from the principle of the immediate application of the new legislation, as interpreted by the Court of Cassation. The latter has ruled that new legislation is in principle applicable to situations which arise after its entry into force and to the future effects of situations arising under the former legislation which appear or continue under the new legislation, to the extent that that application does not interfere with rights that are already irrevocably settled (Cass., 21 February 2014, C.13.0277.F, and Cass., 2 January 2017, C.15.0018.F). On the other hand, as a general rule, situations that became final under the previous legislation fall outside the scope of the new legislation, even if it is one of public policy (Cass., 9 September 2004, C.03.0492.F). ALTERNATIVES TO COMPULSORY CONFINEMENT
90. When section 9 of the Compulsory Confinement Act was being amended (see paragraph 79 above), the following observations were made when the draft law was examined by the House of Representatives (Parliamentary Documents, House of Representatives, 2015-2016, DOC 54 1590/001, pp. 102-103):
“If the facts do not correspond to the situations [provided for by section 9 of the Law of 5 May 2014] and if at the time of assessing the facts the person is suffering from a mental disorder which seriously reduces his or her capacity for discernment or ability to control his or her actions, compulsory confinement is not an option. However, if these persons seriously endanger their health or safety or if they represent a serious threat to the life or integrity of others, the Law of 26 June 1990 on the protection of persons of unsound mind could be applied.”
91. The Law of 26 June 1990 on the protection of persons of unsound mind provides for the possibility of imposing protection measures in the form of non-voluntary hospitalisation of a mentally-ill patient who seriously endangers his or her health or safety or if he or she represents a serious threat to the life or integrity of others. These measures may only be imposed if there is no other treatment option but to resort to involuntary treatment (section 2). The measure is imposed by a magistrate (juge de paix) (section 1 § 2) for a maximum duration of 40 days (section 12), but it may be extended for a period that may not exceed two years (section 13). 92. The compulsory admission provided for by this Law is the only alternative to compulsory confinement in order to deprive persons suffering from mental disorders of their liberty in a binding manner. It may take the form of placing the patient under observation in a psychiatric unit, continued placement in a psychiatric unit, post-detox treatment or treatment in a family setting. 93. Other forms of intervention which do not entail deprivation of liberty are available to assist convicted persons who suffer from mental disorders and to avoid the risk of reoffending. Their use depends on the circumstances of the case and it is the courts alone which rule on whether they are appropriate in a given case. THE LAW
SCOPE OF THE CASE BEFORE THE GRAND CHAMBER
94. The Government raised a preliminary objection concerning the scope of the case referred to the Grand Chamber, and the admissibility of certain of the complaints submitted by the applicants. The preliminary objection raised by the Government
95. In their observations before the Grand Chamber and during the hearing, the Government pointed out that, before the domestic courts, the applicants had merely alleged that their compulsory confinement no longer had a legal basis and that they should therefore be immediately released. The issue of the assessment of the level of danger posed by the applicants and of the relevant factors for continuing their confinement was new and, in addition, different from that which had been discussed before the domestic courts. 96. The Government noted that the applicants had not argued in their application to the Court or in their appeals on points of law that their compulsory confinement was in breach of Article 5 § 1 of the Convention in that the disorders from which they suffered were no longer present. In their view, this was a new interpretation of the ground of appeal, to which they replied only subject to the argument being found admissible, leaving it to the Court to decide whether the domestic remedies had been exhausted. They further noted that the Chamber had confirmed this approach in finding that, since the applicants had not contested that they still met the three conditions identified in the Winterwerp v. the Netherlands judgment (24 October 1979, § 39, Series A no. 33), it was not required to examine compliance with them. Accordingly, the Government submitted that the scope of the dispute before the Grand Chamber should be limited in consequence. 97. The applicants did not comment at the public hearing on the preliminary objection raised by the Government.

Outcome for Article 5: no_violation