From ‘enfant terrible’ to the European Court of Human Rights: the case of Bamouhammad against Belgium

By Rebecca Deruiter, PhD Researcher at the Institute for International Research on Criminal Policy (IRCP), Ghent University[1]

In recent years, the case of Farid Bamouhammed has been covered frequently by Belgian media, characterizing him as notoriously unmanageable and resulting in the widespread used nickname of Farid ‘Le Fou’. After numerous judicial proceedings, by both Farid Bamouhammed and the Belgian State at the national level, the ECtHR convicted the Belgian State of violating Articles 3 and 13 ECHR. The applicant argued that the combined effect of numerous transfers and continuously living under a security regime amounted to inhuman and degrading treatment, resulting in a deterioration of his mental health. The applicant further argued that he was denied of an effective remedy to defend his complaints.

The facts of the case

Between 1984 and 1997, the applicant was convicted to prison sentences for murder, attempted murder, theft, robbery, hostage taking, illegal possession of weapons, etc. While he received a suspension of his sentence with a view to his surrender to France, the applicant was arrested on charges of hostage-taking and illegal weapon possession. He was convicted for these facts to five years imprisonment plus serving the remainder of his previous sentence. During the applicant’s furlough in 2005, he committed new criminal acts: taking his daughter, stepmother and stepsister hostage, plus seriously injuring a policeman. He received a prison sentence of nine years for these acts. In total the applicant could be in detention until 2026.

The applicant was subjected between the period of January 2006 and December 2007 to seventeen prison transfers. On several occasions, the applicant was placed in security cells following disciplinary incidents of violent behavior. In December 2007 he was transferred to the prison of Ittre, where he was placed in solitary confinement, due to physically threatening prison staff. While being held in isolation, the applicant was put in shackles, around his wrists and ankles. In a judgment of 13 January 2014, the director of the prison of Ittre and certain prison officers were sentenced for degrading treatment. On appeal, the prison officers were acquitted. On 16 December 2007, the applicant was transferred to the overcrowded prison of Lantin in a high security unit. Following disciplinary sanctions imposed for various incidents (threats, aggression, etc.) he was placed in solitary confinement. Following his transfer from the Lantin prison in June 2008, the applicant was continuously subjected to security regimes in various prisons. Only two transfers of the total amount of transfers were requested by the applicant. In all other cases, transfers were decided following tensions with prison staff and pressure exercised by them on the prison administration.

In January 2011, the prison administration decided to impose a detention management program on the applicant including an organized rotation system between several prisons. The program also included the appointment of a psychosocial service to monitor the applicant in different prisons. Following a court order of 6 September 2012, the Belgian State had to suspend this transfer policy due to the negative effects on the mental state of the applicant. The transfer plan disrupted reintegration, prevented establishing an effective release plan and retained the image of an inmate as unmanageable, hopeless and therefore dangerous. According to the domestic courts, this transfer policy constitutes degrading treatment within the meaning of Article 3 ECHR because of the harming effects on the mental health of the applicant. During 2011 and 2012, the security regime continued and was generally motivated with reference to violent behavior. From 6 April to 22 November 2013 the applicant was detained at the prison in Nivelles in a cell of 2 meters by 3 in total isolation. A psychiatric report from that period indicates concerns in retaining the applicant in a cell with poor sanitary conditions and a lack of ventilation. Furthermore, already in January 2007 a psychiatrist reported that the applicant had a combination of symptoms which are consistent with the Ganser syndrome (‘prison psychosis’). Another report by the psychosocial service of the prison where the applicant was staying, found that the applicant’s mental condition had worsened since 2005 given the social isolation and frustration he had suffered because of his prison regime, and especially due to the constant transfers that prevents him to benefit from regular psychological monitoring.

The applicant claims he made an euthanasia request in October 2014 and started a hunger strike in the same month. According to a medical certificate from the following month, the applicant had lost 35% of his weight. He also signed a document in which he asked not to practice any resuscitation in case of a cardiac arrest or a stroke. When entering his seventh week of the hunger strike, the applicant applied for an interim measure before the court. The court judged that the applicant had to be transferred to a civilian hospital where he could receive the appropriate care for the duration of the proceedings before the court. On 30 November 2014, a court ordered the provisional release of the applicant due to health reasons. The order was immediately executed but faced strong opposition from the Belgian state. After extensive judicial procedures the applicant, following the request of the Prosecutor General, was again deprived of his liberty in the St Gilles prison on 1 April 2015. The sentencing court ordered on 10 April 2015 the provisional release of the applicant. He left prison the same day.

Judgment

The European Court notes that between 2006 and September 2013, the applicant was subjected to 43 prison transfers. The Court notes that, taking into account the heavy judicial and disciplinary history of the applicant, security grounds could motivate certain transfers but not all 43. The Court further acknowledges the psychosocial and medical reports agreeing on the negative consequences of the transfers for the mental well-being of the applicant which feed acute anxiety feelings due to the permanent need to adapt in various places of detention. This makes a coherent medical and psychological monitoring almost impossible. As a result, the Court is not convinced a balance was pursued by the prison authorities between security claims and their requirement to ensure humane conditions of detention.

The Court is struck by the particularly long – seven years, from 2007 to 2014 – of the applicant’s continued isolation and application of other exceptional security measures. Furthermore, the often repetitive and stereotyped formulation justifying the extension of the individual security regime provides very little evidence on the applicant’s circumstances or concrete attitudes presenting a permanent threat to the security of the detention facilities. Accordingly, the Court has doubts concerning the necessity of the imposed measures over such a long period and on a systematic basis in order to achieve the security aims relied on by the prison administration.

The Court found that the manner of execution of Farid Bamouhammad’s detention, involving continuous transfers between prisons and repeated special measures, together with the prison authorities’ delay in providing him with therapy and the refusal to consider any alternative to custody, despite his declining health, had subjected the applicant to distress of an intensity exceeding the inevitable level of suffering inherent in detention. As a result, the severity threshold was exceeded, resulting in an Article 3 ECHR violation by the Belgian State.

In relation to the alleged violation of Article 13 ECHR (right to an effective remedy) the Court referred to the CPT reports recommending the Belgian authorities to install a formal and independent complaint procedure where detainees can effectively complain about their living conditions. Furthermore, the Court noted that the protection offered by the judges, when the applicant introduced criminal proceedings (in 2008 and 2012), was not effective. The Court concludes that the applicant did not have an effective remedy in respect of his complaints under Article 3 ECHR resulting in a violation of Article 13 ECHR.

The Court ruled that the Belgian state has to pay Farid Bamouhammad €42.000 in just satisfaction (€12.000 in damages and €30.000 in costs).

Comments

In most cases you have to work inside a detention facility to fully grasp the consequences of a prison regime and more particularly a security regime: isolation, very limited time outside the cell, increased supervision, etc. Also prison transfers should not be underestimated because detainees are deprived from a stable environment which is essential in order to build, to the extent possible, some type of trust relations with prison staff, administration, social and medical services. These transfers further affect visits and reintegration perspectives. On top of the fact that Belgium does not have a good reputation in the way it treats mentally-ill offenders, the State also fails to provide an effective answer and treatment when the mental health of a prisoner deteriorates while being detained.

Under Belgian law there exists a specific right for prisoners to formally file complaints to a board attached to the supervisory committees in each prison. Although this provision already dates from 2005, ten years later it still has not entered into force. Also the establishment of a National Preventive Mechanism under the OPCAT is still lacking despite the declared commitment to act on this by the Belgian Government in the framework of the Universal Periodic Review in 2011.[2] Two years ago, Belgium declared that the complex institutional structure of the country made it difficult to establish such a national mechanism.[3]

So far, there exists no mechanism for prisoners to formally complain to an independent body about the way they are treated. The supervisory boards that should be present in every prison, only have a mediating role, are extremely limited in their mandate and are composed of volunteers.

As a concluding remark it is important to note that the European Court’s judgment is not final, the justice department is currently investigating whether or not to appeal against this decision.

[1] Research interests include penology, EU criminal law & policy, asylum, cosmopolitanism.

[2] Par. 37, Report of the Working Group on the Universal Periodic Review Belgium, 11 July 2011, A/HRC/18/3.

[3] Third periodic report of Belgium related to the Torture Convention , CAT/C/BEL/3.