November 22, 2024
By Louise Reyntjens and Ruben Vilain
On August 27, in the B.D. v. Belgium judgment, the European Court of Human Rights (ECtHR) once again found the Belgian government at fault for its treatment of interned persons in prisons. Under Belgian law, ‘internment’ is classified as a safety measure aimed at protecting society from ‘dangerous’ individuals, i.e. those who have committed criminal acts but cannot be punished due to their unsound mind. The current judgment ranks in a long list of previous convictions. In 2016 the Court even issued a pilot judgment against Belgium in W.D. v. Belgium.
In an earlier blogpost, E. Schipaanboord pointed out how the Court in this judgment ‘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’. In the B.D. judgment, the ECtHR highlights these structural shortcomings, addressing both the lack of adequate detention facilities for interned individuals as well as the absence of a sufficient procedural framework for their internment. This blogpost will examine each of these elements in detail. Furthermore, the penitentiary reality in Belgium regrettably shows that the government’s response to systemic issues in its internment policy remains inadequate. We will explore this issue further by diving into some recent governmental initiatives taken in response to the Committee of Ministers’ follow-up of Belgian internment policy.
The applicant in this case, B.D., had been interned for many years. Between 1999 and 2015, he was held in various psychiatric sections of several prisons. During this time, the Commission de Défense Sociale (CDS), the judiciary body which determined in which facility internment is executed, repeatedly renewed B.D.’s internment in these psychiatric sections. In 2015, he was transferred to the forensic psychiatric center in Ghent, a specialized center outside of prison, where he remained until his conditional release on June 8, 2020.
B.D. had made several requests to the CDS to access his case file. On each occasion, the CDS responded that he was not permitted to view his file. Only his lawyer was able to access the file four days before CDS hearings. B.D. had also informed the CDS multiple times that he wished to appeal its decisions to continue the execution of his internment in the psychiatric sections of prison. However, he received the same generic response each time: only his lawyer could file an appeal (according to the applicable legislation at that time). Despite B.D.’s repeated requests to his lawyers to appeal the CDS’s decisions, the case before the ECtHR revealed that no appeal was ever filed by B.D.’s lawyers. In fact, this led B.D. to file a complaint against his lawyers with the president of the bar association.
We note to the reader that the new Belgian internment law of 2014 (amended in 2016) implemented the possibility for an interned person to access his own file without the assistance of a lawyer. At the same time, the new law abolished the appeal possibility against decisions of the CDS. A cassation appeal is the only remedy still available.
The applicant’s complaint before the ECtHR was twofold. His first complaint (under article 5, § 4) was procedural: he contended that the lack of access to his case file prevented him from appealing the decisions of the CDS himself, and he also complained about the repeated refusal or inaction of his lawyers to file an appeal. His second complaint (under article 5, § 1 ECHR) was substantive: he argued that the conditions of his internment were inadequate, which, in turn, hindered any prospects for improvement in his health or chances of reintegration. This combination left him trapped in a kind of catch-22.
With regard to the applicant’s first complaint, the Court began by acknowledging that requiring an interned person to be assisted by a lawyer does not, in itself, constitute a violation of Article 5, § 4 ECHR. The Court had previously ruled that a person detained in a psychiatric institution must be able to receive legal assistance in proceedings concerning the continuation, suspension, or termination of their detention. For the same reasons, the Court found that the fact that only B.D.’s lawyer had access to his case file did not breach this provision (§ 55).
However, the Court drew attention to the fact that B.D. had informed the CDS multiple times of his desire to appeal its decisions to continue his detention in the psychiatric sections in prison. He had also repeatedly asked his lawyer to appeal the CDS’s decisions and had even filed a complaint with the president of the bar association due to his lawyers’ failure to take action (§ 57). In other words, the applicant had clearly expressed his intent to challenge the legality of the CDS’s decisions, but was unable to do so because of a lack of (adequate) legal assistance(§ 59).
In a key passage that intertwines the procedural and substantive dimension of the case, the Court emphasized that offering an effective possibility of having the legality of the detention checked is all the more critical given the structural issues that characterize Belgium’s internment policy(§ 60), as described in the pilot judgment W.D. v. Belgium. Furthermore, the Court criticized the Belgian authorities, stating that ‘it cannot be claimed that the national authorities and courts were unaware of this situation at the time of the facts’, citing its series of previous judgments such as Aerts v. Belgium and W.D. v. Belgium.
The Court went on to clarify that it is not its role to prescribe how a lawyer should represent its interned clients (§ 61). However, in the specific circumstances of this case, the Court found that B.D. had, despite his clear intentions, been denied the opportunity to appeal the decisions of the CDS. Therefore, the Court ruled that B.D. was repeatedly denied the opportunity to have the lawfulness of his detention reviewed and to seek its termination, in violation of article 5, § 4 ECHR. The ECtHR reiterated that Member States are not required to establish an appeal procedure, but if one is provided, they must ensure its effective accessibility. Since B.D. was never able to appeal the decisions of the CDS, Belgium failed to ensure such access, leading to a violation of Article 5, § 4 ECHR.
This judgment addresses the important requirement in Belgian law that interned individuals must have legal assistance from a lawyer. However, when the appointed lawyer fails to assist that person or does so inadequately, the question arises how to overcome the lawyer’s inaction, which can effectively block an interned person’s chances of challenging (and improving) their situation. Unfortunately, the Court does not directly address this issue. While it subtly acknowledges the inaction of B.D.’s lawyers by stating that the mere appointment of a lawyer does not guarantee the effectiveness of the assistance provided (§ 51), the Court ultimately limits its findings to the fact that the Belgian government failed to ensure effective access to the remedy for reviewing the lawfulness of detention. We consider this as a missed opportunity to identify the key actors responsible for Belgium’s flawed internment policy that affected B.D. This failure was not only due to the lack of sufficient facilities for interned individuals (see further), but also to the absence of an effective and robust procedural framework, including necessary control mechanisms, for those detained under internment.
Based on the arguments presented by B.D., the Court focused solely on his inability to appeal the decisions of the CDS and seek their termination (§§ 31-33 and 38). This, of course, addresses only one specific aspect of the broader question of whether, at the time, there was an effective remedy available to B.D. under Article 5, § 4 ECHR to challenge the lawfulness of his detention and seek its termination. The ECtHR did assess this more general question extensively in the cases of W.D. (2016) and Venken (2021). For an assessment of this question, as well as one of the 2014/2016 Belgian internment law, we therefore refer to these decisions (and the joint communication of three Belgian NHRI’s, which we will discuss below).
The Court’s ruling on B.D.’s second complaint came as no surprise, given the Court’s numerous prior judgments against the Belgian State. Consistent with its previous case law, the Court found that the applicant had been detained under inadequate conditions from 2011 to 2015. It ruled that B.D. did not receive the appropriate care and treatment for his mental health while interned in the psychiatric sections of different prisons. As a result, the Court concluded – unsurprisingly – that there had been a violation of Article 5, § 1 of the ECHR (§§ 75 and 78).
The general situation of interned individuals in Belgian prisons remains grim, even a small decade after the 2016 W.D. v. Belgium pilot judgment. The European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) even issued a public statement in 2017 highlighting the disastrous effects of strikes in Belgian prisons, which disproportionately affected interned persons. The CPT noted that ‘the lack of effective control of industrial action in prisons has caused further suffering and exacerbated the already uncertain conditions in which these individuals find themselves, pending the provision of appropriate care.’ This statement ranks Belgium as one of only six CoE Member States that have been the subject of such a public statement.
Very soon, in December 2024, the Committee of Ministers will revisit the situation of interned persons in Belgian prisons, as part of the ongoing follow-up to a series of judgments, including the W.D. case. In June 2023, the Belgian State submitted its ninth action plan to the Committee of Ministers, in which it claimed that ‘the systematic reform of Belgian policy on internment continues and is characterized by a philosophy of dynamic, path-dependent concerns.’
In turn, in July 2023, three National Human Rights Institutions (NHRIs) jointly submitted a communication under Rule 9.2 of the Rules of the Committee of Ministers. In their communication, the NHRIs criticized the Belgian State’s efforts as insufficient to address the ongoing human rights violations faced by interned individuals in prisons. The NHRIs pointed to troubling statistics, such as the 64% increase in the number of interned detainees (from 537 in 2019 to 886 in the first half of 2023), and the slow pace of building specialized psychiatric care facilities outside of prisons.
The Committee of Ministers’ opinion on the matter remains to be seen. At its last meeting in September 2023, it expressed concern over the ‘significant increase in the number of internees in prison’ and ‘urged the authorities to expedite the creation of forensic psychiatric centers and to continue expanding the number of places for internees in the regular care circuit, to ensure the smooth flow of care for all.’ In its updated, tenth action plan submitted in October 2024, the Belgian State reported that the number of interned detainees had risen to 990 in the first eight months of 2024. In response to this most recent action plan, the three NHRIs highlighted that, by September 2024, the number of interned detainees had exceeded 1,000. They also reiterated that the measures proposed by the Belgian State in the (updated) action plan remain inadequate to address the various human rights violations faced by interned individuals in prisons.
Since September 2023, the Committee of Ministers has had a draft interim resolution in place if no ‘tangible progress’ has been made by December 2024. It is not unlikely the Committee will adopt such an interim resolution, given the continued rise in the number of internees, the inadequate care within prisons, and the insufficient number of specialized centers outside of prisons remain a grim reality in 2024. An interim resolution would not be the first – nor likely the last – reprimand of the Belgian State, which continues to violate the human rights of hundreds of interned detainees.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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