JOINT DISSENTING OPINION OF JUDGES SERGHIDES AND FELICI

(Translation)

1. The case concerns the alleged unlawfulness of the applicants’ continued compulsory confinement after a legislative amendment which restricted the acts for which a confinement measure could be imposed. The applicants also complain that it was impossible for them to obtain immediate and final discharge.

2. With all due respect to the majority, we are unable to share their opinion that there has been no violation of Article 5 §§1 and 4 of the Convention in the present case.

3. Our starting point, like the majority’s (see paragraphs 123-124 of the judgment) is that, together with Articles 2, 3 and 4, Article 5 of the Convention is in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see Buzadji v. Republic of Moldova [GC], no. 23755/07, § 84, 5 July 2016, and S., V. and A. v. Denmark [GC], no. 35553/12 and 2 others, § 73, 22 October 2018).

Sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds on which individuals may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds.

Only a narrow interpretation of the exhaustive list of permissible grounds for deprivation of liberty is consistent with the aim of Article 5, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, for example, Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 126, 4 December 2018).

4. In the present case, the applicants submit that since the entry into force of the Compulsory Confinement Act 2014 there has no longer been a legal basis for their detention and that it is therefore in breach of Article 5 § 1 (e) of the Convention. They refer to the difference between section 7 of the Social Protection Act and section 9 of the Compulsory Confinement Act with regard to the categories of offences which can give rise to a compulsory confinement measure.

5. If the general principles set out above (§ 3) are to be applied in the present case, we are of the opinion that the most appropriate decision would be to find a violation of Article 5 § 1.

6. The majority, rightly in our view, accept the domestic courts’ conclusions that the applicants’ compulsory confinement, under domestic law, amounts to a “preventive measure” and not a penalty. It follows that the applicants were not convicted of an offence and no penalty was imposed on them. Their detention could not therefore be justified under sub-paragraph (a) of Article 5 § 1 as detention “after conviction” (see paragraphs 139-140 of the judgment).

7. In consequence, it is necessary to stress that the applicants’ detention fell within the scope of sub-paragraph (e) of Article 5 § 1 in so far as it relates to the detention of persons of unsound mind, for the following reasons: (i) they were held not to be criminally responsible for their actions on account of the mental disorders from which they were suffering; and (ii) the aim of the confinement measure was preventive (protection of society), rather than punitive.

8. Thus, while we subscribe to this analysis by the majority, we consider that they have not drawn all the ensuing consequences from it.

9. Under the Social Defence Act 1930, any offence could give rise to compulsory confinement. Since the entry into force of the Compulsory Confinement Act, the relevant act must now be an offence that harms or threatens to harm the physical or mental integrity of another person. The condition of having committed an offence labelled in this way is now supplemented by two further conditions, namely that the individual concerned must be suffering from a mental disorder which has destroyed or seriously reduced his or her capacity for discernment or ability to control his or her actions; and that there must be a danger of reoffending.

10. In the present cases, the Court of Cassation held that Article 5 § 1 of the Convention did not prevent a compulsory confinement order, imposed by a decision which had acquired legal force, from becoming final in its turn and subsequently giving rise to an execution phase, which was not governed by the same rules as those in force when imposing the order. It concluded from this that Article 5 § 1 did not mean that a compulsory confinement measure which had become final was no longer lawfully or legally imposed because the legislation had changed during the execution stage. Thus, the only consequence of the new legislation was that this particular measure could no longer be imposed in the future for the act for which the applicant had already been placed in confinement. The majority consider that the approach taken by the domestic courts corresponds to the intention of the legislature which enacted the Compulsory Confinement Act and chose to maintain the binding force of compulsory confinement decisions imposed under the Social Protection Act, and that it is accordingly neither arbitrary nor manifestly unreasonable (see paragraph 166 of the judgment).

11. In our opinion, however, such reasoning is applicable solely to a criminal conviction, in respect of which the law as applicable at the time of the acts in question irrevocably determines the penalty. It could therefore have been envisaged had the applicants’ detention fallen within the scope of sub-paragraph (a) of Article 5 § 1, which is not the case here. In contrast, this reasoning is hardly acceptable with regard to a preventive measure of unlimited duration such as compulsory confinement which, by its nature, calls for regular review.

12. Indeed, compulsory confinement can only be validly maintained where there persists a mental disorder of a kind or degree warranting compulsory confinement, in addition to any other conditions imposed by the applicable national law. It is for this reason that sub-paragraph (e) of Article 5 § 1 requires regular review of the lawfulness and thus the necessity of the confinement. It follows that, in essence, the “necessity” – and thus also the lawfulness – of such a measure must be assessed ex nunc , and not ex tunc . The confinement of individuals suffering from mental disorders who have been declared criminally insane follows a logic that is totally different from a criminal conviction. We thus perceive a certain contradiction in the reasoning of the majority, which, on the one hand, indicates that compulsory confinement falls outside the criminal sphere but, on the other hand, applies criminal-type reasoning with regard to the imposition and execution of the measure.

13. Nevertheless, in our opinion, there is no longer a legal basis for the applicants’ detention. In this connection, it should be pointed out that, in accordance with the Court’s case-law, the lawfulness of detention under Article 5 § 1 of the Convention is required in respect of both the ordering and the execution of the measure entailing deprivation of liberty (see Engel and Others v. the Netherlands, 8 June 1976, § 68 in fine, Series A no. 22; Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33; and, in the same vein, Rooman v. Belgium [GC], no. 18052/11, § 191, 31 January 2019). Thus, it is not enough that the applicants’ initial compulsory confinement was decided “in accordance with a procedure prescribed by law”; the execution of this measure must also comply with domestic law and with the purpose of Article 5, which is to protect every individual from arbitrariness.

14. However, the domestic law as amended by section 9 of the Compulsory Confinement Act has added two supplementary conditions to that laid down by the previous Social Protection Act in order for compulsory confinement to be valid: in addition to a mental disorder, the legislation now requires that the individual concerned must have committed a crime or serious offence that has harmed or threatened the physical or mental integrity of another person, and that there is a danger of reoffending. Thus, in Belgian law, these conditions must be satisfied cumulatively.

15. Like the other conditions, the new condition regarding the nature of the offence is accordingly one of the “procedures prescribed by law” required under Article 5. As indicated above in the context of sub-paragraph (e) of Article 5 § 1, compliance with all of these conditions must be assessed ex nunc . It would be unreasonable and highly artificial to accept that one part of the conditions set out in Article 5 § 1 (e) is to be assessed ex nunc and another part ex tunc .

16. Having regard to these considerations, we had no option but to conclude that the domestic courts, which did not apply ex nunc the new condition introduced by section 9 of the Compulsory Confinement Act in the present case, clearly failed to comply with the “procedures prescribed by law” as required under Article 5. In consequence, we consider, unlike the majority, that there has been a violation of Article 5 § 1 (e) of the Convention.

17. Furthermore, the majority are mistaken in relying on the absence of transitional measures in the new legislation, since, by nature, in the area governed by Article 5 § 1 (e) this Act was immediately applicable. Indeed, the Minister of Justice had stated before the House of Representatives that the CPS were required to review decisions that had become final with the necessary “clemency”.

18. In our opinion, any other conclusion would lead to arbitrary results. We cannot see how it is possible to defend a situation where it is considered, on the one hand, that compulsory confinement will in future not be justified for persons who commit acts such as those committed by the applicants in this case, but that, at the same time, it is unnecessary to assess whether the confinement of persons detained before the entry into force of the new law is still justified, again in the light of the same considerations which led to the enactment of that law.

19. In conclusion, we are unable to concur with the majority’s finding that two individuals suffering from mental disorders which have destroyed or seriously reduced their capacity for discernment and who committed acts that did not harm the integrity of another person may or may not be subjected to a measure as serious as compulsory confinement without limit of time solely on the basis of whether they were judged before or after the entry into force of the Compulsory Confinement Act 2014.

20. Under Article 5 § 4 , the applicants clearly complained in their application form that they could not secure immediate discharge.

21. According to the Court’s case-law, the notion of “lawfulness” under Article 5 § 4 has the same meaning as in Article 5 § 1 (see, in particular, A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009). Thus, the conditions to be met under Article 5 § 4 necessarily reflect those which apply under Article 5 § 1. How can one imagine that the determination of the lawfulness of detention (Article 5 § 4) is not based on the same criteria as those which permitted this detention ab initio (Article 5 § 1)?

22. As stressed above, however, the conditions for lawfulness under Article 5 § 1 are cumulative, which means that the detention will be illegal until such time as all these conditions have been met. This requires the existence not only of a metal disorder but also of an adequate legal basis – to be assessed ex nunc . It is only where all these conditions are fulfilled that compulsory confinement can be lawful under Article 5 § 1. Accordingly, where one of these conditions is not met, even when the mental disorder persists, the compulsory confinement would no longer be lawful, entailing an obligation under Article 5 § 4 to end it, failing which it would be arbitrary. We consider that maintaining a compulsory confinement measure in the absence of one of the conditions which constituted its initial lawfulness is completely illegal and thus contrary to Article 5 § 4, as in the present case.

23. Having regard to the foregoing, we cannot agree with the majority’s decision not to mention the need for the Belgian authorities to bring to an end an arbitrary situation which is the direct consequence of the finding of a violation of Article 5 § 1. In the present case, there has also been a violation of Article 5 § 4 of the Convention.

24. This broad reading of Article 5, the only one which secures effective protection of the right guaranteed therein and which is in line with the approach taken by the Court with regard to interpretation of the Convention’s provisions, has, however, not been followed by the majority; on the contrary, they have opted for a restrictive interpretation of the rights in issue. When called upon to choose between two possible interpretations of a single Convention provision, the Court, having regard to the aim and the purpose of the provision, and thus following a teleological interpretation and the principle of effectiveness, has refused the restrictive interpretation and has given a more extensive interpretation of the provision (see Wemhoff v. Germany , no. 2122/64, 27 June 1968, which concerned Article 5 § 3 of the Convention, and Delcourt v. Belgium , no. 2689/65, 17 January 1970, a judgment dealing with the right to a fair hearing, and in which the Court decided that in a democratic society, within the meaning of the Convention, the right to fair administration of justice held such a prominent place that a restrictive interpretation of Article 6 § 1 would not correspond to the aim and the purpose of that provision).

25. In conclusion, and in the light of the foregoing considerations, we reiterate that we are completely unable to subscribe to the position taken by the majority and emphasise that there has been a violation of Article 5 §§ 1 and 4 in the present case.