DISSENTING OPINION OF JUDGE PAVLI

1. I regret that I am unable to agree with the Grand Chamber majority’s finding that there has been no violation of the applicants’ rights under either Article 5 § 1 or Article 5 § 4 of the Convention. For the reasons provided below, I consider that both Convention provisions have been violated in this case.

2. The current controversy stems from a significant change in the Belgian legal regime governing the compulsory confinement of persons with mental disabilities who have committed acts classified as criminal offences, through the enactment of a new law in May 2014 which replaced legislation dating back to 1930. The introduction of the Compulsory Confinement Act sought to facilitate the social reintegration of persons subject to compulsory confinement within the penitentiary system, which is the most restrictive form of involuntary commitment in the Belgian system.

A. The Introduction of a “Dangerousness Threshold” in the 2014 Act

3. One of the key reforms introduced by the 2014 Act involved a tightening of the criteria for justifying both the original imposition and the continued maintenance of compulsory confinement measures by setting a baseline level of social dangerousness. Whereas prior legislation allowed the confinement of a person suffering from a mental disorder who had been charged with any offence, irrespective of its gravity, the 2014 Act requires, among other criteria, that the person should have committed “a crime or serious offence that has harmed or could have harmed the physical or mental integrity of another person” (see paragraph 79 of the judgment).

4. In defending the proposed changes during the parliamentary procedure, the Minister of Justice indicated that the proposed “threshold” of dangerousness was meant to avoid the imposition of a “serious” and “open-ended” form of deprivation of liberty for “relatively minor offences”; and that it would be disproportionate to do so for “acts which did not reveal any real danger to society” (see paragraph 81 of the judgment). This raised obvious questions as to the legal position of those persons already subject to compulsory confinement who had never committed any offences reaching the new threshold of dangerousness. The 2014 Act did not include any transitional provisions aimed at addressing the situation of confined persons in this class; instead, the Minister of Justice indicated that the relevant authorities should examine their continued confinement, in due course, “with the necessary clemency” (see paragraph 82 of the judgment).

5. It is therefore not surprising that the current applicants have taken issue with the transitional regime of the 2014 Act: clemency is a laudable virtue in governance and other domains, but it has little to offer in terms of the legality of indefinite detention. Mr Denis and Mr Irvine have never been charged with any crimes against “the physical or mental integrity of another person”; they have been subject to compulsory confinement since 2007 and 2002, respectively, for acts classified as offences against property. They have argued, both domestically and before this Court, that their continued confinement after the entry into force of the 2014 Act lacked a legal basis and was rendered arbitrary by the lack of sufficiently clear transitional provisions in that Act (see paragraphs 103-106 of the judgment). They invoked the acknowledgment by Belgian officials that domestic courts had made “improper use” of the pre-2014 legislation by committing, under criminal law, persons who did not pose a genuine danger to society (see paragraph 117 of the judgment). However, the authorities did not consider that it was necessary to take any immediate measures to rectify past mistakes or abuses, other than by way of discretionary clemency at some future time. That is a compelling argument, in my view, to which neither the respondent Government nor the Grand Chamber judgment has provided a satisfactory answer.

B. The Transitional Regime Governing Continued Compulsory Confinement

6. The Government have argued that there was, in fact, a transitional regime in place that met the requirements of Article 5 § 1 (e) of the Convention in relation to the applicants’ continued detention. I am unable to agree with that position: the 2014 Act did set forth a transitional procedure , but provided no substantive guidance or a sufficiently speedy process for reviewing how the new threshold of dangerousness was to be applied to the applicants’ situation. As a result, the decisions of the national authorities under the 2014 Act extending the applicants’ confinement in the penitentiary system suffered from a significant lack of foreseeability and arbitrariness.

7. To begin with, the new threshold of dangerousness under the 2014 Act applies both to a fresh decision to authorise compulsory confinement and to any subsequent decisions to maintain the same measure or, conversely, order the committed person’s discharge. According to section 66 of the Act, a detainee may obtain final discharge provided that his mental disorder has stabilised sufficiently for there no longer to be reasonable grounds to fear that the detainee “will again commit offences” against another person’s physical or mental integrity (see paragraph 84 of the judgment). But how is that standard to be applied to a detainee who has never committed any offences reaching such a level of gravity? There was no clear answer to that question in the Act, its legislative history or the oral submissions made by Government counsel at the Grand Chamber hearing, in response to specific questions on this point.

8. There is no convincing answer in today’s judgment either: the majority finds that the nature of the original act committed by the detainee is “not, as such, taken into account during the periodic review of the confinement” but concedes that nevertheless “the [social protection division] must have regard to a range of risk factors including, where appropriate, the acts for which the individual was initially placed in compulsory confinement” (see paragraph 162 of the judgment). It concludes, however, that only “the current mental-health condition of the confined person and the current risk of reoffending” are taken into account in making decisions on continued confinement (see paragraph 174 of the judgment). With respect, I find this bifurcated line of reasoning hard to reconcile not only with the plain language of section 66, but also the interpretation of the same provision adopted by the Belgian Court of Cassation in the case of the first applicant, finding that the decision ought to be taken inter alia “in the light of the offence for which confinement had been imposed” (see paragraph 36 of the judgment). Furthermore, the section 66 review does not require an assessment of any “risk of reoffending”, but a risk of “reoffending” reaching a certain level of dangerousness that corresponds to the offence originally committed. It is not clear to me how a detainee who has never committed a crime against another person’s integrity can be deemed to present a risk of “reoffending” (that is, committing again) a crime of the same gravity.

9. The difficulties of applying section 66 to the situation of the current applicants, in the absence of any proper guidance by the legislature, are also manifest in my view in the decisions adopted by the national authorities in their specific cases. I find nothing in those decisions that would suggest that the social protection divisions or the courts have found a way to reconcile or mitigate the inherent vagueness and lack of foreseeability in the application of section 66 of the 2014 Act to the situation of the current applicants (and others detainees in the same category).

10. Preventive detention for an indefinite period is one of the harshest restrictions of personal liberty contemplated by the Convention, whose necessity as a measure of last resort must be clearly established (see paragraph 130 of the judgment and the cases cited therein). Seen from this perspective, the Belgian 2014 Act was based on a presumption that only persons with mental disabilities presenting a certain baseline level of social dangerousness should be subjected to the harshest form of involuntary commitment available in that jurisdiction. Consistent with such a presumption, an Article 5-compliant transitional regime would have required, in my view, a process whereby a review of the legality of the continued commitment of persons in the applicants’ situation would be carried out (i) in a speedy fashion upon the entry into force of the 2014 Act; (ii) with a view to assessing whether, following their original confinement for lesser offences, they had nevertheless committed or attempted offences against another person’s integrity or showed a clear propensity to do, not based on mere conjecture; and (iii) which would be capable of ordering their immediate discharge from the penitentiary system if those conditions were not met.

11. The transitional arrangements provided for in section 135 of the Act (see paragraph 88 of the judgment) do not come close to meeting such requirements. First, they did not address in any specific way the situation of those detainees who had never committed a threshold offence. Secondly, they provide for the issuing of an opinion by the director or person responsible for treatment within six months of the 2014 Act’s entry into force, but without any substantive guidance for the application of section 66 to those in the applicants’ situation. Thirdly, no final discharge was possible before the expiration of the automatic, three-year probationary period, at least prior to the interpretation adopted by the Court of Cassation in its April and June 2019 decisions (see paragraphs 84 and 86 of the judgment).

12. It is our established case-law that where any form of deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention (see paragraph 128 of the judgment and cases cited therein). I consider that sections 66 and 135 of the Belgian Compulsory Confinement Act (2014), as applied in the current applicants’ case, did not meet these standards. As a result, the applicants’ continued detention under that Act was in violation of Article 5 § 1 (e) of the Convention.

13. The majority’s finding of no violation in this respect rests on the arguments that Article 5 § 1 (e) does not require that a person “of unsound mind” ought to have committed a previous offence in order to be lawfully detained (see paragraph 168 of the judgment); and that, if such an offence has in fact given rise to the original confinement, the national authorities are not required to take account of its nature in assessing the legality of the person’s ongoing confinement based on a persisting mental disorder (see paragraph 169 of the judgment). These arguments are beside the point, in my view: we judge the legality and potential arbitrariness of a detention based on the domestic legal regime that has been actually used, in the specific case(s) before us, to deprive an applicant of his or her liberty; and the two above-mentioned factors are in fact conditions for the legality of the applicants’ continued detention under that specific national regime. Another crucial factor under that same regime is a risk of recommitting an offence meeting a certain level of gravity (cf. the conclusion in paragraph 175 of the judgment). As I have argued, the lack of clarity in the application of that latter standard creates a degree of arbitrariness that cannot be cured by the abstract application of the Winterwerp criteria, removed from the actual detention regime applied in these cases.

C. “Without Losing Sight of the General Context”

14. There is yet another important consideration that receives only a brief mention in the judgment: the structural problems affecting “an appreciable number of persons” subject to compulsory confinement in Belgium who find themselves in the psychiatric wings of prisons (see paragraph 110 of the judgment and the cases cited therein). These problems concern primarily the lack of proper psychiatric treatment and long-term detention, sometimes for decades, under conditions of serious therapeutic neglect – a situation that raises not only questions of the legality of detention, but also potentially of inhuman and degrading treatment of these detainees within the meaning of Article 3 of the Convention. As recently as April 2021, a Chamber judgment in the case of Venken and Others v. Belgium (no. 46130/14 and 4 others, § 125, 6 April 2021, not yet final) found that a significant number of detainees in the prison wings (several hundred, to be precise) continue to find themselves under “inappropriate conditions” of detention. While a considerable number of places has been created in recent years in the so-called “external circuit” of the compulsory confinement regime – primarily through the creation of two forensic psychiatry centres that offer adequate treatment – a significant number of detainees in the prison psychiatric wings are either not eligible or unable to secure a spot in the external centres (ibid).

15. This situation had important implications for the current applicants at the time of their applications for discharge: they had a strong Convention interest not merely in regaining their freedom, or at least a greater measure thereof outside the criminal confinement regime, but also in being removed from a penitentiary system where their Article 3 and 5 rights were under threat of persistent violation. I am in agreement with the majority position that, in formal terms, the applicants were late in bringing their Convention claims based on inadequate treatment, which had therefore to be considered inadmissible (see paragraph 110 of the judgment). In a broader sense, however, nothing prevents the Court from taking note of its own recent judicial findings regarding the structural problems in the Belgian confinement regime. This is an overarching consideration that, in my view, should have led the Grand Chamber to apply much closer scrutiny to the flaws of the transitional regime under the 2014 Act.

16. The structural problems may also provide some insight into the rather inexplicable choice of the Belgian authorities not to put in place a proper transitional regime for a class of detainees that, by their own admission, no longer belonged in criminal confinement. Without wishing to engage in too much speculation, it seems reasonable to assume that the scarcity of places offering adequate treatment outside the prison wings may have argued against the immediate discharge of a potentially sizeable number of detainees who might have required treatment under a less restrictive regime. While one can sympathise with the practical challenges of such a transition, matters of mere convenience cannot justify the arbitrary detention of individuals. Furthermore, it is relevant that the entry into force of the 2014 Act was delayed for a significant period, presumably to allow time to prepare for implementation of the reforms. In a broader sense, the Belgian authorities have been aware of the structural problems in their compulsory confinement system, as identified by this Court and other international monitoring bodies, for a good number of years, if not decades (see W.D. v. Belgium , no. 73548/13, §§ 71-77, 6 September 2016).

D. Alleged Violation of Article 5 § 4 of the Convention

17. The applicants have argued, under this heading, that the mandatory three-year probationary period envisaged in section 66 of the 2014 Act, which is to be applied even in those cases where continued confinement no longer meets the Winterwerp criteria, is inconsistent with Article 5 § 4 of the Convention on its face (see paragraph 183 of the judgment). They submit that the Belgian Court of Cassation reached effectively the same conclusion in two judgments that post-dated that same court’s decisions in their respective cases. The Government argued that the matter of the three-year probationary period is irrelevant in the applicants’ case as their continued detention was lawful under the Winterwerp criteria in any event (see paragraph 185 of the judgment) – a position which the Grand Chamber majority upholds in essence.

18. Being of the view that the applicants’ continued confinement following the entry into force of the 2014 Act was unlawful and arbitrary due to a fatal lack of clarity in the new domestic provisions governing such detention, I cannot but find that their rights under Article 5 § 4 of the Convention were also violated. This was a structural problem that could not have been remedied on a case-by-case basis, given that the domestic courts had no proper guidance as to the very standards that they were to apply in determining whether the applicants’ continued detention was lawful under the 2014 Act, particularly, with regard to the assessment of the level of dangerousness they presented at the time of the relevant decisions. Thus, the domestic authorities’ conclusions that the applicants did in fact present the requisite level of dangerousness cannot be said to be consistent with the requirements of Article 5 § 4, considering that the notion of “lawfulness of detention” under that provision has the same meaning as in paragraph 1 of Article 5. Furthermore, the mandatory statutory period of probation deprived the national courts, at the relevant time, of the authority to order the applicants’ immediate discharge had a proper review of legality shown that they no longer met the domestic and/or Convention criteria for continued compulsory confinement. There has therefore been an additional violation of their rights under Article 5 § 4 of the Convention.