Too little, too late? The ECtHR’s pilot judgment on the Belgian internment policy

Guest post by Els Schipaanboord, LL.M. – PhD Researcher at the Institute for International Research on Criminal Policy, Ghent University

On 6 September 2016, the European Court of Human Rights condemned Belgium once more, after 22 previous convictions, for its internment policy. This safety measure, under the Belgian law referred to as ‘internering’, aims to protect the society against ‘dangerous’ mentally ill offenders who cannot be held accountable for the offence they have committed, due to their illness. This time, however, the verdict granted Belgium the questionable honor of a pilot judgement. Applying the ‘pilot procedure’, the Court classifies Belgium’s internment policy as systematically and structurally dysfunctional and imposes an obligation upon it to address these problems within a limited amount of time. The Court gave Belgium a deadline of two years.

Summary of the W.D. v Belgium case

The judgment (of September 6, 2016, app. no. 73548/13, W.D. v. Belgium) refers to the case of W.D., who was interned in 2007 at the age of 19 for indecent assault of a minor. W.D. suffers, inter alia, of an autism spectrum disorder. Due to this mental disorder, he was not considered criminally liable for his actions. Therefore, W.D. was condemned to a ‘safety-measure’, i.e. the ‘internment measure’. Since 2007 W.D. was interned at a psychiatric wing of the prison Merksplas, where he has not received any form of treatment nor has he had any prospect of readmission to society.

Judgment and contextualization

First and foremost, the Court established that Belgium breached art. 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment) as it had not provided any treatment to W.D. during his stay at the psychiatric wing of the prison that was adequate and necessary for his mental health condition and for the absence of any possibility of readmitting him into society after being appropriately treated. The Court acknowledged the actions that the government had taken to find external support for the treatment of applicant. These actions, however, did not harvest any result, mainly in light of the structural problem of Belgium’s policy regarding the internment measure. The Court argued that the medical support of interned persons at psychiatric wings of prisons is insufficient and that external placement is often impossible, either because of a lack of available places or because of the fact that the Belgian legal framework does not permit to impose the placement of an interned person on an external residence that considers the interned person as undesirable.

Secondly, the Court found a violation of art. 5, § 1 (the right to liberty and security) on the ground that appropriate help and therapy in detention were absent. The government pleaded that the lack of improvement in the applicant’s condition was due to the applicant’s attitude, his lack of motivation, and his pathology. The Court however, in turn, was not convinced that the applicant demonstrated an attitude, which prevented any change in his situation. Instead, the Court noted that the applicant had clarified his wishes and asked to undergo the specific therapy for sexual offenders. In the eyes of the Court this request could not be considered as patently unreasonable. Furthermore, the Court ruled that a request prima facie corresponds to ‘appropriate care’ when it is filed by a person who, in addition of being condemned for a criminal assault, suffers from personality disorders and who has little to no knowledge about the best suitable therapy for his/her mental disorders. Additionally, the Court recalled four of its previous judgments against Belgium. In this case law the Court found a violation of art. 5, § 1 on the ground that the detention of mentally ill persons in a psychiatric wing of a prison, which was recognized as unsuitable for their needs, for a significant period of time, had the effect of breaking the linkage between the purpose of detention and the conditions in which it occurred. Accordingly, the Court concluded that also in the case of W.D. there had been a mismatch between the purpose of detention and the conditions in which it took place and, therefore, this led to a violation of art. 5, § 1 ECHR.

Finally, the Court found violations of art. 5, § 4 (the right to access to a court for the speedy determination of the lawfulness of the detention) and art. 13 (right to an effective remedy). These violations can almost be considered as an inherent derivative of the preceding violations of art. 3 and art 5, § 1. According to the Court’s ruling, the lack of an effective remedy is part of the overall structurally dysfunctional internment policy in Belgium. The Court conceded that no legal proceeding would have led to an immediate and tangible improvement of the applicant’s detention conditions or to any change of applicant’s residence. A favorable court decision would only have led to granting financial compensation. In view of the Court’s preceding establishments in this case, the Court concluded that the lack of an effective remedy, that is to say of a remedy capable of redressing the situation and of preventing the continuation of the alleged violations, led to a violation of art. 5, § 4 and art. 13 in conjunction with art. 3.

Conclusion

For decades now, the European Court of Human Rights has condemned Belgium’s internment policy. 23 verdicts so far; the last one is a pilot judgment. Applying the pilot procedure, the Court qualifies the status quo in respect to the treatment of mentally ill offenders in Belgium as systematically and structurally dysfunctional. The Court set a deadline of two years for Belgium to put its affairs in order and to improve the legal and factual situation of this population. At the end of these two years the situation will be re-evaluated. The treatment of mentally ill offenders in Belgium should be considered as a disgrace in the justice system of Belgium.

This pilot judgment can be considered as an even bitterer pill to swallow, since it was issued less than one month before the new ‘internment-law’ would enter into force (October 1, 2016). Although this new law, in comparison to the old one, contains a lot of positive elements, it has been reasonably doubted whether it provides a sufficient foundation for a thorough overhaul of the legal position of offenders with mental disorder and, therefore, whether it overcomes the fundamental objections raised by the Court. Bearing in mind the long history of human right violations concerning the legal position of mentally ill offenders, all eyes are on Belgium. Will this new law be enough to change the legal position of mentally ill offenders in Belgium in the eyes of the Court? Or will it be too little, too late for Belgium and will a ‘favorable’ Court decision (favorable to the appellant), again, only lead to granting financial compensation?

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