Information Note on the Court’s case-law 237

February 2020

Denis and Irvine v. Belgium (referral) - 62819/17 and 63921/17

Judgment 8.10.2019 [Section IV]

Article 5

Article 5-1-e

Persons of unsound mind

Compulsory confinement maintained on the basis of judicial decisions which had become final, after legislation narrowing the conditions for the use of confinement by the criminal courts: case referred to the Grand Chamber

Article 5-4

Review of lawfulness of detention

Speediness of review

Three-year probation period imposed as prerequisite for the final release of a person placed in compulsory confinement by a criminal court: case referred to the Grand Chamber

After committing, respectively, the offences of theft and burglary with attempted theft, the applicants, who were mentally unstable, were placed in psychiatric confinement by the criminal court under the “Social Protection Act” of 1930.

In 2016 a new law entered into force, having been adopted in 2014, reserving compulsory confinement to the two most serious categories of offences involving an assault on the “physical or mental integrity” of third parties. The applicants thus applied for permanent release, arguing that the acts they had committed no longer fulfilled the condition for confinement under the new legislation.

Their applications were dismissed on the ground that their mental disorders were not sufficiently stabilised and that t hey had not completed the probation period prescribed by law in order to benefit from permanent release. The Court of Cassation dismissed their appeals on points of law, finding as follows:

– that it was not precluded by Article 5 § 1 (e) of the Convention that a confinement measure imposed by a decision which had become res judicata should be final or that it should give rise thereafter to an enforcement period for which the applicable rules would not be the same as those governing the imposition of the me asure;

– that the mental state and ensuing dangerousness of the person confined should not be assessed merely on the basis of the facts for which the measure was ordered but also on account of a series of risk factors to be examined by the Social Protectio n Division;

–  that the condition of the fulfilment of a probation period was not incompatible with Article 5 § 4 of the Convention.

In a judgment of 8 October 2019 a Chamber of the European Court of Human Rights found unanimously as follows.

No violation of Article 5 § 1, finding in particular: that the Court of Cassation’s interpretation of the new law on compulsory confinement, which was consistent with the law’s drafting history, was neither arbitrary nor manifestly unreasonable; that the a pplicants had not disputed that they fulfilled the three criteria of the Winterwerp v. the Netherlands (1979) judgment; and that the applicants’ confinement was thus still validly based on the court decisions taken under the former Social Protection Act.

N o violation of Article 5 § 4, finding in particular: that under section 66 of the new 2014 Act, permanent release could be granted only after a period of release with probation for three years, provided that the mental disorder was sufficiently stabilised, to ensure that it could no longer reasonably be feared that the person placed in confinement would commit fresh offences causing harm to or threatening the physical or mental integrity of third parties; that the three-year probation condition had only bee n a secondary ground, since the mental health condition had not been met (the applicants themselves had not claimed that their mental health had sufficiently improved); bearing in mind that in another case recently before the Court of Cassation the fact th at the three-year period had not expired had not precluded the permanent release of a person in confinement who was no longer considered to be dangerous.

On 24 February 2020 the case was referred to the Grand Chamber at the applicants’ request.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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