On 6 December 2011, the European Court of Human Rights found the Belgian internment policy to be in breach of the ECHR. The case of De Donder and De Clippel v. Belgium concerned Tom De Clippel, a mentally ill person who had committed suicide while interned in an ordinary prison. Under Belgian law, internment (“internering” / “internement”) is a “safety measure” to protect society against a dangerous mentally ill individual who was committed a serious offence, but who is not considered to be criminally liable due to his or her mental illness.
According to the Court, the authorities should have been aware that there was a real risk that Tom De Clippel, as a paranoid schizophrenic, might attempt to commit suicide while detained in an ordinary prison environment. The Court found a substantive violation of Art. 2 ECHR (the right to life) on the ground that Tom De Clippel should never have been held in the ordinary section of a prison. This was not only contrary to the decision of the prosecutor to place him in the psychiatric wing of that prison but also resulted in a lack of appropriate treatment for his medical condition. This would have been sufficient for the Court to find a violation, but it chose to go to the core of the problem by stating that Tom De Clippel’s placement in ordinary prison was caused by a chronic shortage of places in specialised institutions for interned detainees and psychiatric wings in prisons.
Secondly, the Court also found a violation of Art. 5 § 1 (the right to liberty), because Tom De Clippel’s detention was manifestly contrary to domestic law. Belgian law requires that internment takes place in a specialised institution or, in exceptional circumstances, in the psychiatric wing of a prison. The Court further recalled its finding in the case of Aerts v. Belgium (ECtHR, no. 25357/94, 30 July 1998) that detention of a mentally ill person under Art. 5 § 1 (e) can only be lawful if it is effected in a hospital, clinic or other appropriate institution.
As a Belgian, I am ashamed for the systematic detention of interned persons in ordinary prisons (approximately 1000 persons, around 10 % of the total prison population), which are not adapted to their needs and where they do not receive appropriate care. This practice is well-documented by the media, NGO’s (particularly the Belgian Human Rights League) and international bodies (such as the European Committee for the Prevention of Torture), and is generally acknowledged to be one of Belgium’s major human rights issues.
The Strasbourg Court should be hailed for making such a clear statement. On the short term, interned persons who are detained in ordinary prisons can invoke this judgment in order to get released. On the long term, the Belgian authorities must tackle the more structural problems: increase the capacity of specialised institutions, provide as far as possible alternatives to detention, limit internment to those cases which are strictly necessary to protect society and provide more support to regular psychiatric care in order to prevent internment. The message is clear: interned persons should not be treated as regular detainees, they suffer from mental illness and therefore deprivation of liberty is only allowed insofar as they receive adequate care aimed at their reintegration in society.