FIFTH SECTION

CASE OF BERLAND v. FRANCE

( Application no. 42875/10 )

JUDGMENT

( Extracts )

STRASBOURG

3 September 2015

This judgment is final but it may be subject to editorial revision.

In the case of Berland v. France ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ganna Yudkivska, Vincent A. De Gaetano, André Potocki, Helena Jäderblom, judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 26 May 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 42875/10) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Daniel Berland (“the applicant”), on 21 July 2010 .

2 . The applicant, who had been granted legal aid, was represented by Mr J.C. Bonfils, a lawyer practising in Dijon. The French Government (“the Government”) were represented by their Agent, M r F. Alabrune , Director of Legal Affairs, Ministry of Foreign Affairs .

3 . The applicant alleged that there had been a violation of Article 7 § 1 of the Convention .

4 . On 31 January 2012 notice of the application was given to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1987 and is currently in the specialised hospital centre (CHS) of Sevrey.

6 . On 12 September 2007 the applicant, who was 20 , went to the workplace of C.G. , who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on C.G., who died from a massive haemorrhage , having been wounded in the throat and thorax, and on two other individuals . On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people , and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS .

7 . The applicant was examined by two boards of expert psychiatrists who found that , at the material time , he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of A rticle 122-1 of the Criminal Code ... .

8 . On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to th e Investigation Division for a ruling as to the applicant ’ s lack of criminal liability , in accordance with A rticle 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity ( hereafter “the 25 February 2008 Act” , ... ).

9 . In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply A rticle 122-1 , first paragraph, of the Criminal Code . He ordered the transmission of the case file by the public prosecutor t o the Principal Public Prosecutor for the purposes of referral to the Investigation Division .

10 . On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant ’ s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in part icular for a public hearing ...

11 . In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing . At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively . He indicated that under the above-mentioned A rticle 706-122 of the Code of Criminal Procedure , the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment , for an indefinite duration , and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time .

12 . In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed C.G. ” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions . It ordered his compulsory hospitalisation pursuant to A rticle 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ... , on the grounds that “it transpire[d] from the proceedings that [the applicant ’ s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital” . The court also prohibited him , for a period of twenty years , from having any contact with the complainants and from possessing or carrying a weapon , those being preventive measures provided for under new A rticle 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant ’ s civil liability and on the claims of damages . The Investigation Division had previously ruled on the procedural objections raised by the applicant ’ s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of A rticle 7 of the Convention :

“... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ...

... c ontrary to the pleadings and contrary to the rules on preventive detention , the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in A rticle L. 3222-1 of the Public Health Code , which provides for hospitalisation arrangements specifically in such contexts , and the Prefect is immediately informed of the decisions . Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health .

Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.”

13 . The applicant appealed against that judgment on points of law . In his grounds of appeal he argued, relying on A rticles 6 § 1 and 7 of the Convention, that the principle of “ no punishment without law ” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time . He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures , as this would breach the principle of the non-retrospective application of harsher criminal legislation .

14 . Before the Court of Cassation, the public prosecutor , in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged , since “legally speaking, a state of criminal insanity related to a loss of discern ment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law” . He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts : “as a result of such anticipation only the material element will stand , devoid of its punitive connotation , together with its ‘ objective imputation ’ to an individual , which would serve as a basis for granting redress to the ‘ victims ’ and was in itself the focus of the legislative intent ” . On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally” .

15 . In a judgment of 14 Ap ril 2010 the Court of Cassation dismissed the appeal on points of law :

“... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of A rticle 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘ quasi-criminal sanctions ’ , being listed in the person ’ s criminal record.

To dismiss those arguments, the judgment uses the above-mentioned reasoning .

As those grounds stand , the judgment does not warrant the alleged complaint in so far as the provisions of A rticle 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under A rticles 706-135 and 706-136 ...

... there is sufficient evidence [ against the applicant] to show that he committed the offences of premeditated murder and wounding ... ”

16 . In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution un escorted . The Prefect ’ s letter to the responsible psychiatrist of the Sevrey CHS reads as follows :

“... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave .

Those assessments reached m e today. One states as follows : ‘ In view of M r Berland ’ s current state of health we can envisage allowing him to go outside un escorted in the context of a trial period with a process of social rehabilitation, which seems indispensable ’ . The other one reads: ‘ his current state of health allows the possibility of un escorted leave to be envisaged . We should gradually move towards trial arrangements to consolidate the rehabilitation plans ’ .

Moreover, in accordance with his instructions, issued following the judgment against M r Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital un escorted .

The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against M r Berland, pursuant to A rticles 706-135 to 706-140 of the Code of Criminal Procedure ...

In those circumstances , even though the assessments tentatively allow for the possibility of granting Mr Berland such un escorted leave , it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants . Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted , depending on any assessment data that you may wish to transmit to me.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

24. Relying on Article 7 § 1 of the Convention, t he applicant complained about the retrospective application of the 25 February 2008 Act. The relevant part of that Article reads as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

A. Admissibility

25 . The Government took the view that the measures imposed on the applicant pursuant to sections 706-135 and 706-136 of the Code of Criminal Procedure did not constitute “ penalties ” within the meaning of A rticle 7 of the Convention and that the application should be declared inadmissible for being incompatible ratione materiae with the provisions of the Convention, in accordance with A rticle 35 § 3 ( a) of the Convention.

26 . The applicant did not share the Government ’ s view and argued that the de claration of criminal insanity and the associated preventive measures constituted a “penalty” to which the principle of non-retrospective legislation in A rticle 7 § 1 , second sentence, should apply .

27 . The Court finds that the objection as to its lack of jurisdiction ratione materiae , in the circumstances of the case , is closely linked to the substance of the applicant ’ s complaint under A rticle 7 of the Convention. It thus decides to join it to the merits . The Court observes, moreover, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Whether A rticle 7 of the Convention is applicable

1. Th e parties ’ submissions

28 . The Government argued that the compulsory hospitalisation and the measures ordered pursuant to A rticles 706-135 and 706-136 of the Code of Criminal Procedure did not constitute penalties within the meaning of A rticle 7 of the Convention because they did not follow a criminal conviction . The declaration of criminal insanity and the finding by the judicial authority responsible for pre-trial investigation that there was sufficient evidence that the individual had committed the offences as charged did not amount to an assessment of guilt; only the material attribution of the acts to the person charged had thereby been ascertained . In the Government ’ s submission, this is what distinguished the measures at issue from the system of preventive detention ( Sicherungsverwahrung ) under German law, as examined by the Court in M. v. Germany [(no. 19359/04, ECHR 2009)] .

29 . The Government further took the view that the impugned measures did not satisfy the other criteria established by the Cour t as characterising a penalty ( they referred to Welch v . the United Kingdom , 9 February 1995, Series A no. 307 ‑ A, and M . v. Germany , cited above ). They were classified in domestic law as “preventive measures” ( mesures de sûreté ) and the entire legislative history of the provisions showed that this term had been used from the outset . The Constitutional Council and the Court of Cassation had also confirmed that these measures did not have the nature of a sanction ... Moreover, in the Government ’ s opinion, this classification corresponded to the purpose and nature of the measures . They sought to “improve the medical and judicial treatment of offenders suffering from mental disorders or presenting a danger” ( National Assembly , report in respect of the draft Law on preventive detention and declarations of criminal insanity , 12 December 2007) , to guarantee the safety of others and to prevent disorder . The Government pointed out that, unlike a penalty, the measures did not have a punitive function but were preventive and remedial , a purpose that could be clearly seen from the very wording of Article 706-135 of the Code of Criminal Procedure . Thus, in the present case, the compulsory hospitalisation had been ordered in the light of two psychiatric assessments showing the applicant ’ s impaired discernment and the Investigation Division had justified the measure by his mental disorders which “represented a risk for the safety of others and required long-term care in hospital” . Those measures sought not to punish but to prevent a new offence from being committed and to protect society – this being, in the Government ’ s submission, a Convention imperative reiterated on several occasions ( they cited Mastromatteo v . Ital y [GC], no. 37703/97, ECHR 2002 ‑ VIII). They further compared the French measures to the order existing in the Netherlands for confinement in a custodial clinic ( as in Morsink v . the Netherlands , no. 48865/99, § 66, 11 May 2004).

30 . As regards the legal provisions governing preventive measures, the Government asserted that they were not the same as those applicable to penalties . First, the provisions for the compulsory hospitalisation measure were strictly identical to those applying to other mandatory forms of hospitalisation in a non-criminal context . Unlike the situation in the case of M. v. Germany , the present case thus did not concern a prison sentence of unlimited duration . Admission to a specialised institution , like the other measures covered by A rticle 706-36, were strictly regulated. In contrast to penalties, they were temporary in nature and could be altered or lifted in the course of their implementation if the underlying reasons had disappeared . The lifting of such measures was conditional upon the result of a psychiatric assessment , thus demonstrating their remedial and preventive purpose . Lastly, the Government emphasised that any failure to fulfil the obligations resulting from these measures did not entail the activation of a suspended sentence , as in the case of a penalty, but would constitute a separate offence .

31 . The Government concluded from the above that the impugned measures were not subject to the principle of non-retrospective legislation .

32 . The applicant argued that the declaration provided for in A rticle 706-125 of the Code of Criminal Procedure was tantamount to a d e claration of guilt . Prior to the 25 February 2008 Act there had been no form of judgment because the person concerned was recognised as incapable of being guilty; the investigating judge would find that there was no case to answer before any court . Similarly, no judicial prohibition on pain of a sanction could be ordered where there was no criminal liability . Since that Act , the person concerned was committed to stand trial in open court, resulting in a declaration that there was sufficient evidence that he had committed the offences as charged, together with the endorsement of his criminal record where preventive measures were also imposed . The applicant submitted that this was undoubtedly a criminal conviction . He added that the Investigation Division was now required by law to order compulsory hospitalisation , for an unlimited duration , whereas under the former rules it had been a mere option for the Prefect to decide .

33 . As to the possibility of applying to the “liberties and detention judge” for the lifting of the preventive measures , the applicant explained that this fell under the ordinary rules governing any ancillary penalties of prohibition in criminal cases and that a convicted person could always ask the convicting court for such penalties to be disapplied during their enforcement .

34 . The applicant disputed the argument that the hospitalisation in question was like any other and depended solely on the medical profession . He cited in evidence the Prefect ’ s decision of 23 February 2011 ( see paragraph 16 above), which in his view showed that his deprivation of liberty closely resembled imprisonment, because it no longer depended solely on medical opinion but, on the contrary, remained subject to the approval of the public prosecutor, his opponent, through the intermediary of the Prefect . He claimed that he was medically imprisoned , in accordance with a new concept created by the 25 February 2008 Act .

35 . Lastly, in the applicant ’ s submission, the fact that any breach of the terms of preventive measures carried a pre-determined penalty was , contrary to the Government ’ s contention , the decisive criterion for such measures to be regarded as penalties within the meaning of Convention.

2. The Cour t ’ s assessment

36 . The Court reiterates that the concept of a “penalty” in Article 7 § 1 is, like the notions of “civil rights and obligations” and “criminal charge” in Article 6 § 1, an autonomous concept. To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “ penalty ” within the meaning of this provision ( see Welch , cited above , § 27).

37 . The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a criminal offence. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity ( see Welch , cited above , § 28, and M. v. Germany , cited above , § 120). However, the severity of the measure is not in itself decisive, since many non-penal measures of a preventive nature may have a substantial impact on the person concerned ( see Welch , cited above , § 32, and Van der Velden v . the Netherlands (d e c.), no. 29514/05, ECHR 2006 ‑ XV).

38 . The Court has previously established, in its case-law, a distinction between a penalty , such as preventive detention under German law ( see M. v. Germany , cited above ; ... ), and a preventive measure falling outside A rticle 7 of the Convention, such as the listing of an individual in a judicial register of perpetrators of sexual or violent offences ( see Gardel v . France , no. 16428/05, ECHR 2009). It found that preventive detention constitute d a “penalty”, not ing in particular that it had been ordered following a conviction for attempted murder and robbery and pursued an aim that was more punitive than preventive, as shown by its enforcement in an ordinary prison , the lack of specialised treatment to reduce the danger presented by the person concerned , the unlimited duration of the de tention, its imposition by the courts and the determination of its enforcement by the sentence execution courts, which belonged to the criminal justice system ( see M. v. Germany , cited above , §§ 124- 31).

That distinction must nevertheless be used prudently, in view of the differences in the criminal laws of the member States that are enacted to protect society from the risks presented by dangerous criminals . The same type of measure may be classified as a penalty in one State and as a preventive measure, to which the nulla poena sine lege principle does not apply, in another ( see M. v . Germany , cited above , §§ 74 and 126).

39 . In the present case, the Court must ascertain whether the impugned measures , namely the compulsory hospitalisation and the preventive measures ordered in accordance with A rticle 706-136 of the Code of Criminal Procedure , should be regarded as penalties to which the principle of non-retrospective legislation, as enshrined in Article 7 § 1, second sentence , is applicable .

40 . Having regard to the criteria developed in its case-law , the Court ’ s first task is to determine whether the impugned measures were imposed following a criminal conviction. In that connection the Court notes at the outset that these measures were ordered by the Investigation Division after that court had declared the applicant criminal ly insan e . While the Court has previously found that a lack of criminal liability declared by an Assize Court did not prevent the person concerned from relying on his victim status to assert his right to a fair trial under Article 6 § 1 of the Convention ( see G. v . France , no. 27244/09 , § 46, 23 February 2012 ), it should be pointed out that, under A rticle 7 § 1, the existence of a penalty will depend on whether the measure has been imposed after a criminal conviction . In the present case, the Cour t observe s that the Investigation Division delivered a judgment in which it declared, first, that there was sufficient evidence that the applicant had committed the offences as charged and, secondly, that he lacked criminal liability by reason of a mental disorder which had impaired his discernment and his ability to control hi s actions . That court went on to explain that “[t]he declaration of the existence of sufficient evidence that the person ha[d] committed the offence as charged [did] not constitute a conviction but a finding that there [was] a factual situation which could have legal consequences ...” ( see parag raph 12 above ). The Constitutional Council had previously considered that a “ d e claration of the existence of sufficient evidence that the person ha[d] committed the offence as charged” did not constitute an “assessment as to the commission of the offence” and that “the decision to declare a person criminally insane could not be characterised as a sanction” ( ... unlike the measure of preventive detention “following conviction by a court” , ... , and contrast, for example , the case of Achour v . France [GC], no. 67335/01, ECHR 2006 ‑ IV , where the applicant had alleged that his conviction for repeat offending was based on a retrospective application of the criminal legislation , contra ry to A rticle 7 of the Convention).

41 . The Cour t further observe s that the debate in the domestic courts as to the finding by the Investigation Division of the “existence of sufficient evidence that the person ha[d] committed the offences” in applying A rticle 706-125 of the Code of Criminal Procedure, was settled by the Court of Cassation, which saw fit to delete the word “intentionally” from that de claration, such that the mental element normally required for an offence to be made out could not be established where the discernment of the defendant had been impaired . The public prosecutor before that court had indeed pointed out that the lack of criminal liability precluded the finding that the acts constituted an offence under the law, adding that only the material element of the offence would stand , “ devoid of its punitive connotation ”, in such a situation ( see paragraph 14 above ).

43 . In addition, as regards the domestic classification of the measures imposed on the applicant in accordance with A rticle 706 ‑ 135 and 706-136 of the Code of Criminal Procedure , the Court notes that in France they are not regarded as penalties to which the principle of non-retrospective legislation would apply . While the hospitalisation measure provided for in Article 706- 135 of the Code of Criminal Procedure is not exp ressly designated by the law as a preventive measure , the legislature did use that description for the measures introduced by A rticle 706-136 . The circular of 8 July 2010 states that the me a sures provided for under A rticle 706-136 cannot be imposed as sanction s .. . The Court of Cassation has found, since its judgment of 16 December 2009 , that these measures are not penalties ...

45 . In conjunction with its decision in which it declared the applicant to be lacking in criminal liability, the Investigation Division ordered two other preventive measures, namely a twenty-year ban on entering into contact with the complainants and on possessing a weapon . The Court notes that, under A rticle D. 47-29-6 of the Code of Criminal Procedure , those measures can be ordered only if they are necessary to prevent the person declared criminally insane from reoffending , to ensure the protection of that person or of the victim or the victim ’ s family, or to put an end to any public disorder .. . Such measures are decided following a psychiatric assessment and must not prevent the person concerned from continuing to receive treatment . The Court further notes that while these me a sures are limited in time – thus making them penalties according to the applicant – the person concerned is entitled to apply to the liberties and detention judge for the measures to be lifted or altered and the decision will be taken on the basis of a psychiatric assessment (A rticle 706-137 of the Code of Criminal Procedure , ... ). The Court is thus persuaded that the ordering of the impugned measures and the judicial review of their application had a preventive function . The applicant has not, moreover, adduced any concret e evidence to indicate that those measures served the purpose of punishing him. He did not show that he had applied to the judge, nor therefore that the judge had refused to take account of the evolution in his mental health and to draw the requisite conclusions . Lastly , the Court notes that, while the applicant would be liable for a two-year prison sentence and a fine in the event of non-compliance with the impugned measures , fresh proceedings would then have to be brought ( see, mutatis mutandis , Gardel , cited above , § 44) and the sanctions would apply , under A rticle 706-139 of the Code of Criminal Procedure , “subject to the provisions of the first paragraph of A rticle 122-1 of the Criminal Code” , in other w ords they would only be applicable to persons who, at the time of their failure to comply with the prohibitions , were criminally liable for their actions .. .

46 . Having regard to the foregoing , the Court finds that the de claration of criminal insanity and the associated measures do not constitute a “penalty” within the meaning of A rticle 7 § 1 of the Convention, but must be seen as measures of a preventive nature which are not therefore bound by the principle of non-retrospective legislation enshrined in that Article .

47 . A rticle 7 § 1 of the Convention is not applicable in the present case and the Cour t upholds the Government ’ s objection . Consequently there has been no violation of that Article .

FOR THESE REASONS, THE COURT

1. Declares , by a majority, the application admissible;

2 . Joins to the merits , unanimously, the Government ’ s objection that the application is incompatible ratione materiae with the Convention ;

3 . Holds , by five votes to two , that Article 7 is not applicable and that there has been no violation of that Article.

Done in French , and notified in writing on 3 September 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Mark Villiger Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zupančič, joined by Judge Yudkivska, is annexed to this judgment.

M.V. C.W.

DISSENTING OPINION OF JUDGE ZUPANČIČ JOINED BY JUDGE YUDKIVSKA

I

1. I regret that I cannot join my colleagues in the majority concerning this admittedly borderline case.

2. Superficially speaking, this case hinges upon the question whether retroactivity concerned a criminal sanction, i.e., punishment –, or whether it concerned only a therapeutic security measure imposed on the applicant. If the latter were true, the security measure would be , in its overall benevolence, akin to civil co mmitment (involuntary hospitalis ation) of ordinary mental patients –, which is why the issue of retroactivity would not have arisen.

3. The majority maintain that the retroactivity of the law enac ted on 25 February 2008 was acceptable, due to the fact that it concerned treatment rather than punishment –, although the law came into force four months and thirteen days after the nominally criminal act of the insane person had been committed. Seemingly, therefore, everything depends on the question whether this was, or was not, a criminal sanction.

4. The applicant maintains ( see paragraph 13 of the judgment ) that the prin ciple of legality enshrined in A rticle 7 of the European Convention on Human Rights should be seen as an obstacle to the sanction imposed on him given that the old law, valid at the time of the offenc e, did not foresee that direct route to incarceration in a mental hospital.

5. It is of course eminently acceptable that the legal system should, once it has established that an insane person had committed an act that is objectively imputable to him or her, react. In most other countries there are provisions for security measures to be applied in cases concerni ng the “ n ot guilty by reason of insanity” verdict . It is somewhat surprising that the French system did not have such provisions in place until 25 February 2008. Instead, it had a cumbersome system where the investigating judge would acquit the person in question. Only after the acquittal did the Prefect obtain the power to commit that person to a mental hospital.

6. In other words, I do not object at all to the parameters of the law of 25 February 2008. Seemingly, the only slight impediment in this case concerns the retroactivity of the said law. As usual the thorny questions in law arise only once we appreciate that the case is predicated on other tacit premises.

7. In the case of Achour v. France (as cited in the judgment) I concurred in the outcome. In that case, too, the problem was retroactivity , except that it concerned the retroactivity of a law on the consequences of the multi-recidivism. The French Cour t of Cassation in that case had very pertinently introduced a distinction between retroactivity in rem and retroactivity ad hominem . In other words, the Cour t of Cassation saw retroactivity concerning the status of being a multi-recidivist something that concerned him or her personally ( ad hominem ), and not only his or her criminal acts ( ad rem ). Therefore, being a multi-recidivist was something to be distinguished from having committed several criminal-recidivist acts. Thus it was possible for the Cour t of Cassation to maintain that there was no retroactivity given the fact that the applicant had, in the interim period, remained a multi-recidivist: once a recidivist , always a recidivist.

8. Therefore, we seem to be dealing with an underlying problem that has not, in criminal law doctrine, been addressed before let alone resolved. Namely, the question recurs as to whether a criminal actor is being punis hed only for the act that he has committed, or inversely, whether he or she is being punished for being a murderer, an arsonist, a rapist, etc.

II

9. Here, the question becomes noteworthy. There is an essential difference between the implications of criminal procedure on the one hand and the implications of an ordinary civil procedure on the other hand. In the latter case, it is easy to separate the object of the civil litigation from the subjectivity of the defendant. Even in tort , to take a more difficult case bordering on criminal law, the defendant may be liable to pay damages due to the fact that he had been negligent, reckless etc. –, b ut the damages that he must pay do not involve his whole personality. In other words, what is at stake in the civil litigation is clearly detachable from the personality of the defendant – the tortfeasor. In other instances of civil litigation, what is objectively at stake in the lawsuit has little or no connection to the subjectivity (personality) of the defendant.

10. However, this is not so in criminal procedure. Here, the criminal liability, the blame, the imputation of the crime, etc ., go directly to the defendant ’ s personality. Criminal law explores meticulously whether the act objectively imputable to the defendant is a genuine subjective expression of his overall personality: self-defence, defence of another, duress, insanity, mistake of fact , etc. – these are all reasons that break the cau sal link, as in the present case, between the personality of the defendant and the nominally criminal a ct. By comparison, even in tort the liability is more objective because there is no requirement of an intimate link between the damages and the personality of the tortfeasor. For this reason it is sometimes maintained that a criminal act is a tort in conjunction with sin, i.e., historically many acts that are criminal today were treated as torts. The damages for thes e acts were called wereg ild [1] .

11. Additionally, in civil litigation the tortfeasor may be found guilty and may be obliged to pay damages. If he has paid the damages, this is the end of the matter. Thus there is no recidiv ism or multi-recidivism in tort even though the tortfeasor may reiterate his objectionable behaviour. The inference never arises in law that he is a tortfeasor.

12. In criminal law and in criminal procedure, the personality of the defendant ( actor ) and the question of his or her criminal liability are inextricably linked. At its monocentric stage in criminal procedure, liability depends exclusively on the relevant subjective (personal) attitude of the criminal defendant (which is not even explored in civil litigation). Moreover, at the polycentric sentencing stage everything depends on the mitigating and aggravating circumstances and on other traits of the convicted person ’ s personality.

13. For this reason it is, in criminal law and criminal procedure, sometimes difficult to distinguish between the person ’ s criminal liability for the act as such ( per se ) on the one hand and his personality on the other . On the one hand we have the criminal act, which must be firmly connected to the personality of the actor and on the other hand we have the personality as such. Achour v. France demonstrates this elusive problem, as does the case at hand: in rem versus ad hominem .

14. The criminal sanction lato sensu , likewise , whether it is punitive or something else depends largely upon the very personality of the actor -defendant. If it is in fact punitive, the government cannot pretend otherwise ( see Blokhin v. Russia , no. 47152/06, 14 November 2013 , Chamber judgment pending before the Grand Chamber). And while in civil procedure the payment of damages represents the end of the case, in criminal procedure the convicted person – the defendant in person – must go to prison. Thus, the criminal sanction, too, whatever it is, cannot be detached from the convicted person ’ s personality.

15. The situation in this particular ca se is therefore ambiguous. The “objective imputation” of the material facts by the investigating judge depended on the sheer act of the defendant. In turn, once it ( the actus reus ) is objectively established, the circumstance that he is “ criminally insane ” ( the mens rea ) depends on his (mentally ill) personality. Yet this is only the exacerbation of the split in criminal procedure itself, where the finding of guilt is strictly separate from the criteria of sentencing.

16. There is no doubt in my mind that in criminal law and procedure the defendants are punished not only for what they have done ( an act) but also and primarily for who they are (being).

17. In the famous case of Robinson v. California , that I have dealt with in Achour v. France , the Los Angeles City ordinance incriminated the status ( ad hominem ) of being a drug addict. The Supreme Court of the United States then directed that the so-called “ status crimes ” we re inadmissible: there must always be an act of the criminal defendant, to which we attach criminal liability. Thus the issue of whether a criminal defendant is being punished for what he is (being) or for what he had committed (an act) has been settled , albeit superf icially . Neither the US Supreme Court nor other courts , nor criminal law doctrine , however, have ever succeeded in explaining why the principle of lega lity in criminal law, as enshrined in Article 7 of the Convention, is always dependent on the act of the defendant and seems to ignore the obvious fact that the personality of the actor is at the very centre of a ny criminal procedure.

18. The reason for this, as I have explained in Achour v. France , is pragmatic. The act of a defendant is determined in terms of place, of time and of modus ( operandi ). This is not true of the status of defendant. The status persists in time, has no abode, except hidden in the defendant ’ s personality, and may not have a consistent modus operandi .

19. In other words, the act is easily litigable, arguable, disputable , etc.; the status is not. (This comes to the fore even in the predetermined issue of insanity – mental illness as the cause of the act – , i.e., there may arise a battle between psychiatric experts, which may have no obvious conclusion.) Were it not for that reason, it would make much more sense to declare the defendant innocent or guilty strictly in terms, not of his instant act, but in terms of his enduring personality. After all it is the personality that is being punished. To put it otherwise, it is this “ enduring personality ” which goes to prison – the act is merely its symptom. Yet, the disease cannot be treated separately from the body of the patient.

III

20. The problem recurs in all cases that are somehow on the border line between the classical responsibility for the act on the one hand and those where the being of the actor is determinative of the case on the other. To name just a few, in Blokhin v. Russia (cited above) and in De Tommaso v. Italy (no. 43395/09), both now pending before the Grand Chamber, in M. v Germany (cited in the judgment) a nd prior to that in the above- mentioned Achour v. France case (cited in the judgment) , etc., the dangerousness of the actor was the de terminative factor. In juvenile delinquency cases the parens patriae doctrine, as in Blokhin , pretends that it is referring to the personality of the young offender in order to reform him (his personality, his being). In the case at hand, likewise, the S tate pretends that the indefinite forced incarceration in a mental hospital is for the benefit of the applicant. The gist of this beneficial assistance ( parens patriae ) theory is that there is no conflic t between the interests of the S tate and the interests of the person “ benefitting ” from this incarceration. In my opinion, the Court should look be hind these appearances. These cases also make it patent that the boundary between the act and the being of the actor is fuzzy.

21. This kind of uncertainty is not acceptable and thus the question arises as to how the human rights machinery must react in order to protect the applicant and the rule of law. One way or the other , all these cases are about Article 7 of the Convention , i.e., about the principle of legality. The latter, for the reasons we have explained above, concerning the time, place and modus of the offence, expressis verbis requires an act for the punishment to be legal and acceptable.

22. The position taken in M. v. Germany to the effect that retroactive prolongation of the security measu res wa s not acceptable under Article 7 of the Convention was perfectly correct. However, although they are essentially the same, the present judgment ( see paragraph 38 ) makes short shrift of distinguishing this case from M. v. Germany —, although this ought to have been the nucleus of the assessment. Thus, what is punitive on the other side of the Rhine is unexpectedly remedial on this side of the river.

23. Moreover, already subsequent to the 12 February 2008 Act and to the D ecree of 16 April 2008 (to the effect that the provisions of the law are applicable immediately), the Cour t of Cassation took the “ punitive ” position on 21 January 2009 — and then suddenly changed tack and reversed itself ( le revirement de jurisprudence ) nine months and twenty- two days later, on 16 December 2009.

24. This testifies to the chronic and widespread opacity of the legal situation. In the context of this fiction, clearly, the “ punishment ” is permitted for the criminal act of the defendant, whereas only “ treatment ” is permissible in so far as the being (the personality) of the defendant is concerned .

25. The reverse logic thus came into play , whereby the majority judgment maintains by legalistic fiat , i.e., on very formalistic grounds, that what affected the defendant in this case was not punishment but treatment. Since it was treatment, unlike the situation in M. v. Germany , retroactivity had been permissible. Thus in paragraph 38 of the majority judgment we read:

“ That distinction must nevertheless be used prudently, in view of the differences in the criminal laws of the member States that are enacted to protect society from the risks presented by dangerous criminals. The same type of measure may be classified as a penalty in one State and as a preventive measure, to which the nulla poena sine lege principle does not apply, in another (see M. v. Germany , cited above , §§ 74 and 126) .”

26. We would then expect a piece of persuasive reasoning as to why this dissimilarity , so difficult to explain and justify, does apply in France whereas it did not apply in Germany. However, in paragraphs 40, 41 and 42 we only read that “ the Court finds that the impugned measures imposed on the applicant, who was declared criminally insane, were not ordered following a conviction for a ‘ criminal offence ’ ”.

27. In other words, the Court ’ s doctrine according to which rights must not be illusory and theoretical and the Court ’ s intent must be to look behind mere appearances, has been sacrificed to this exquisite piece of legal formalism in which one notes the absence of a “ criminal offence ” even though we are told that the “ measures were ordered by the [Criminal!] Investigation Division after that court had declared the applicant criminally insane ” ( paragraph 40) . In view of this formalist ic distinction it is no wonder that the Cour t of C assation changed its mind within less than ten months.

IV

28. It remains to be explained why I assented to the majority judgment in Achour v. France , i.e., to the idea there , as opposed to the present case , that retroactivity was not a problem. In Achour the status of being (remaining) a multi-recidivist all along was seen as permitting the retroactive application of the law concerning multi-recidivists.

29. Why is it that here, in my opinion, the status of being a mental patient – since the applicant was apparently mentally ill from the outset – should not permit the Court to cover the retroactivity period of four months and thirteen days? Clearly, first, if it were a question of pure civil commitment (forcible hospitalisation of any mental patient), there would have been no problem as to the precise timing of the commitment. Secondly, the issue has never been raised, as it was in Achour , in terms of protraction (continuation) of the applicant ’ s being (argument ad hominem ) a dangerous mental patient. Thirdly, and most importantly, the status of continuous ly being a multi-recidivist in Achour was based on r ecurring criminal acts that had been legally proven since he had been, several times, finally convicted.

30. Ad primum , in the present case the commitment pronounced by the Criminal Investigation Division was not a civil commitment; it was imposed on the applicant by a division of the criminal court. Ad secundum , the Cour t of C assation has never reasoned in terms of civil commitment (forcible hospitalisation of any mental patient) because the commitment clearly came about in consequence of the “ objective imputation”, i.e., of a criminal-judicial finding that the applicant had in fact committed the act. Ad tertium , in Achour we had several proven criminal acts whereas in this case th ere were none: the applicant had acted once and had a mental il lness as an excuse, i.e., he had never been convicted of anything.

31. Furthermore , the mere findings by the investigating judge and Investigation Division did not amount to a conviction. The question of fair trial h ad never been raised, but since the “objective imputation” was determinative of the outcome (incarceration in a mental hospital) it, too, represents a major problem in the case at hand.

32. At any rate, in the absence of a fair trial in accordance with Article 6 of the Convention, the mere “objective imputation” cannot be considered as having established that the applicant had committed a criminal act. Even i f this is so, the presumption of innocence still prevails! Since such an act has not been fairly and legally established, it remains impossible to maintain that the applicant had been incarcerated in consequence of a criminal act.

33. Moreover, the French courts and this Court maintained that the sanction (to use a neutral term) was not a punishment, whereas if we go beyond appearances and if we grant the applicant a right that is not only theoretical and illusory, we must conclude that the incarceration in a mental hospital ward for the criminally insane is often much worse than ordinary imprisonment. There are a number of cases in our jurisprudence that testify to this (see for example the recent case of Zaichenko v. Ukraine (no. 2) , no. 45797/09, 26 February 2015 ). On top of that, the duration of this incarceration is, in contradistinction to ordinary p enal imprisonment, without the time- limit that otherwise applies to every criminal penalty. In view of this, to maintain that the applicant here was not punished is simply not true.

[1] I have borrowed this idea from the late Professor Harold Berman of Harvard Law School. See his work Law and Revolution: the Formation of the Western Legal Tradition , Harvard University Press, Cambridge, Massachusetts, 1985.