Information Note on the Court’s case-law 188

August-September 2015

Berland v. France - 42875/10

Judgment 3.9.2015 [Section V]

Article 7

Article 7-1

Retroactivity

Compulsory hospitalisation and additional measures ordered following a declaration of exemption from criminal responsibility not amounting to a “penalty”: Article 7 not applicable

Facts – In a judgment of February 2009 the Investigation Divis ion of a court found that there was sufficient evidence that the applicant had “wilfully taken the life” of his former girlfriend and that he could not be held criminally responsible for his acts because he suffered from a psychiatric disorder that deprive d him of his discernment and his ability to control his actions. The Investigation Division ordered his compulsory hospitalisation and barred him for twenty years from making contact with the civil parties and possessing or carrying a weapon. The Court of Cassation amended the wording of the judgment but dismissed an appeal on points of law lodged by the applicant.

In the Strasbourg proceedings the applicant complained of the retroactive application of the legislation providing for the measures ordered in h is case.

Law – Article 7 § 1: The Court first had to determine whether the measures in question had been imposed following the applicant’s conviction of an offence. The Investigation Division had delivered a judgment in which it found, firstly, that there was sufficient evidence that the applicant had committed the acts of which he was accused and, secondly, that he lacked criminal responsibility on account of a mental disorder that deprived him of his discernment and his ability to control his actions. The Investigation Division had been careful to specify that “... the finding that there is sufficient evidence that an individual committed the acts of which he is accused in no sense amounts to a conviction but rather establishes the existence of a state tha t may have legal consequences ...”. Previously, the Constitutional Council had ruled that the “finding that there is sufficient evidence that an individual committed the acts of which he is accused” did not amount to an “assessment concerning the commissio n of those acts” and that the “decision to declare a person exempt from criminal responsibility on account of a mental disorder is not in the nature of a penalty”. Furthermore, the discussions among the domestic courts regarding the Investigation Division’ s finding that there was “sufficient evidence that [the applicant had] committed the acts” had been resolved by the Court of Cassation, which considered that the word “wilfully” should be deleted from such a finding, so that the mental element normally req uired as one of the constituent elements of an offence could not be taken into consideration in cases where the person being prosecuted had lost his or her discernment. The advocate-general had argued that the state of being exempt from criminal responsibi lity barred the court from ruling on whether the acts constituted an “offence” under the law, adding that only the substantive element of the offence, “stripped of its punitive connotations”, could be assessed in such a situation. In view of the foregoing considerations, the measures in question could not be regarded as having been ordered following the applicant’s conviction of an “offence”.

Furthermore, in France, the measures imposed on the applicant were not regarded as penalties to which the principle of non-retroactivity applied.

As to the nature and purpose of the applicant’s compulsory hospitalisation, such a measure could only be ordered if a psychiatric expert assessment had established that the mental disorder from which the person declared exempt from criminal responsibility suffered “required treatment and compromised individuals’ safety or seriously disrupted public order”. Hence, the aim had been firstly to allow the applicant to receive treatment by placing him in a specialised hospital rather than in an ordinary prison, and secondly to prevent a repetition of his actions. Furthermore, the arrangements governing compulsory hospitalisation were the same as those concerning admission for psychiatric treatment following a decision by the represent ative of the State; in both cases, an application could be made to the courts at any time for the lifting of the measure. The courts then gave a decision based on the recommendations of a panel made up of two psychiatrists and a representative of the hospi tal team caring for the patient, and after obtaining two expert reports prepared by psychiatrists. Hence, compulsory hospitalisation, the duration of which was not determined in advance, served a preventive and curative purpose rather than a punitive one a nd did not constitute a penalty.

As to the other two security measures imposed on the applicant, namely the twenty-year bans on making contact with the civil parties and possessing a weapon, the Court noted that these could be ordered only if they were necessary in order to prevent a repe tition of the actions committed by the person declared exempt from criminal responsibility, to protect that person, the victim or the victim’s family or to put an end to the disturbance of public order. They were ordered following a psychiatric assessment and must not stand in the way of the treatment being received by the person concerned. Furthermore, while these measures were of limited duration, it was open to the applicant to apply to the judge to have them lifted or varied. The judge gave a ruling on the basis of the findings of a psychiatric expert report. Accordingly, the ordering of the measures in question served a preventive purpose. Lastly, while the applicant risked incurring a penalty if he failed to comply with the measures complained of, a ne w set of proceedings had to be opened in such a case, and the penalty applied only to persons who were criminally responsible for their actions at the time of their failure to comply.

Consequently, the finding that the applicant was exempt from criminal re sponsibility and the accompanying security measures did not constitute a “penalty” within the meaning of Article 7 § 1 of the Convention and were to be regarded as preventive measures to which the principle of non-retroactivity under that Article did not a pply. Article 7 § 1 of the Convention was therefore not applicable in the present case.

Conclusion : Article 7 § 1 not applicable (five votes to two).

The Court further held that there had been no violation of Article 7 § 1.

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

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