DHOEST v. BELGIUM



EUROPEAN COMMISSION OF HUMAN RIGHTS

 

Application No. 10448/83

 

Sylvain DHOEST against BELGIUM

 

REPORT OF THE COMMISSION

 

(adopted on 14 May 1987)

 

TABLE OF CONTENTS

 

 

                                                               Page

 

I.      INTRODUCTION

        (paras. 1 - 24) ....................................     1

 

        A.  The application (paras. 2 - 6) .................     1

 

        B.  The proceedings (paras. 7 - 19) ................     2

 

        C.  The present Report (paras. 20 - 24) ............     3

 

 

II.     ESTABLISHMENT OF THE FACTS

        (paras. 25 - 68) ...................................     5

 

        A.  Relevant domestic law (paras. 26 - 36) .........     5

 

        B.  Particulars of the present application

             (paras. 37 - 60) ..............................     7

 

        C.  Visit by the Delegation of the Commission to the

             Institution at Tournai (paras. 61 - 68) .......    11

 

 

 

III.    SUBMISSIONS OF THE PARTIES

        (paras. 69 - 111) ..................................    15

 

 

        A.  The applicant

            (paras. 69 - 89) ...............................    15

 

            i.  Article 3 (paras. 69 - 76) .................    15

 

           ii.  Article 5 para. 1 (paras. 77 - 86) .........    16

 

          iii.  Article 5 para. 4 (paras. 87 - 88) .........    17

 

           iv.  Article 7 (para. 89) .......................    18

 

 

        B.  The Government

            (paras. 90 - 111) ..............................    18

 

            i.  Article 3 (paras. 90 - 96) .................    18

 

           ii.  Article 5 para. 1 (paras. 97 - 106) ........    19

 

          iii.  Article 5 para. 4 (paras. 107 - 109) .......    21

 

           iv.  Article 7 (paras. 110 - 111) ...............    21

 

 

IV.     OPINION OF THE COMMISSION

        (paras. 112 - 164) .................................    22

 

        A.  Points at issue (para. 112) ....................    22

 

        B.  As regards Article 3 of the Convention

             (paras. 113 - 130) ............................    22

 

        C.  As regards Article 5 para. 1 of the Convention

             (paras. 131 - 147) ............................    25

 

        D.  As regards Article 5 para. 4 of the Convention

             (paras. 148 - 156) ............................    28

 

        E.  As regards Article 7 of the Convention

             (paras. 157 - 164) ............................    29

 

        F.  Recapitulation of the Commission's conclusions .    31

 

 

APPENDIX I -  History of the Proceedings before the

              Commission ...................................    32

 

 

APPENDIX II - Decision on the admissibility of the

              application ..................................    34

 

 

I.      INTRODUCTION

 

1.      The following is an outline of the case as submitted to the

European Commission of Human Rights and of the procedure before the

Commission.

 

A.      The application

 

2.      The applicant, a Belgian citizen, was born in 1938.  In the

proceedings before the Commission he is represented by

Mr.  P.R.W. Schaink, a lawyer practising in Amsterdam.  The Government

is represented by its Agent, Mr.  J. Niset, of the Ministry of Justice.

 

3.      On 28 March 1961 the Indictment Chamber of the Ghent Court of

Appeal directed that the applicant be confined for a period of 15

years to a special institution on the basis of the Act of Social

Protection in respect of Mental Defectives and Habitual Offenders 1930

("Loi de défense sociale à l'égard des anormaux et des délinquants

d'habitude"), it having been established that the applicant had

committed double homicide, murder and attempted murder and a series of

qualified thefts.

 

4.      He was initially detained in the custodial mental institution

("Etablissement de défense sociale") at Tournai where he spent most of

his detention until 19 May 1982 when he was transferred to Ghent.  On a

number of occasions he was moved to other institutions following

decisions by the competent Mental Health Review Board ("Commission de

défense sociale") or by the Minister of Justice by virtue of the above

Act, as amended in 1964.

 

5.      At no stage did the Mental Health Review Board consider that

the applicant fulfilled all conditions for his release.

 

        The applicant finally escaped on 7 July 1982 and fled to the

Netherlands, where he went into hiding in July 1983 after the failure

of his efforts to have the decision allowing his extradition revoked

by the Dutch authorities (1).

 

6.      The case concerns the legal and material conditions under

which the applicant was detained and presumably will be detained

if he is returned to Belgium.

 

 

 

_______

(1)  The events which have occurred in the Netherlands following

     his flight from Belgium are the object of a separate

     application directed against the Netherlands (No. 10447/83).

 

B.      The proceedings

 

7.      The application was introduced on 24 June 1983 and registered

on 27 June 1983.

 

        On 28 June 1983 the applicant was informed by the Secretary to

the Commission that the President of the Commission had decided that

the application was not of such a nature as to warrant the application

of Rule 36 of the Commission's Rules of Procedure.

 

8.      On 9 July 1983 the Commission decided, in accordance with Rule

42 para. 2 (b) of its Rules of Procedure to give notice of the

application to the respondent Government and to invite them to present

before 17 September 1983 their observations in writing on the

admissibility and merits of the application.

 

9.      At the request of the Government the time-limit for the

submission of the observations was extended until 1 December 1983 and,

following a further request, until 1 January 1984.  On 27 December

1983 the Government presented their observations on the admissibility

and merits of the application.  The applicant, having been granted an

extension for the submission of his observations in reply, submitted

these on 13 April 1984.

 

10.     The Commission re-examined the application in the light of the

above observations on 12 July 1984 and declared the application

admissible, considering that the applicant's allegations raised

substantial issues of fact and law, in particular as regards Articles

3 and 5 of the Convention.

 

11.     The Commission further examined the application on 11 October

1984 and decided to invite the Parties to present further observations

as regards the conditions of the applicant's detention in Tournai.  On

the same day it decided not to take any further action in relation to

a new request made on behalf of the applicant under Rule 36 of the

Rules of Procedure.

 

12.     At the request of the Government the time-limit for the

submission of the supplementary observations was extended until 7

January 1985 and, following a further request, until 8 February 1985.

On 4 February 1985 the Government presented their supplementary

observations.  The applicant replied on 18 March 1985.

 

13.     The Commission resumed consideration of the application on 11

May 1985.  It decided that a delegation of the Commission, designated

in conformity with Article 28 para. 2 of its Rules of Procedure,

should visit the Institution at Tournai where the applicant had been

detained.

 

14.     The delegates' visit took place on 21 June 1985.  The

Commission's delegation was composed of Mr.  H.G. Schermers, Mr.  H.

Danelius and Mr.  H. Vandenberghe.  The applicant was represented by

his lawyer, Mr.  P.R.W. Schaink; the Government were represented by

Mr.  J. Niset, Agent of the Government, Mrs.  Lauwers, Direction

Générale de l'Administration Pénitentiaire, Ministry of Justice, and

Mr.  Lefebvre, Inspector General of Prisoners, Ministry of Justice.

 

15.     The Commission resumed consideration of the application on 6

July 1985 in the light of the report by the Delegates on their visit

and decided to invite the Parties to submit additional supplementary

observations on the merits in particular on Articles 3 and 5 of the

Convention.

 

        The applicant submitted these observations on 19 September

1985; the Government submitted their observatons on 12 December 1985.

 

16.     On 14 March 1986 the Commission granted the applicant legal

aid.

 

17.     After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, also placed itself

at the disposal of the Parties with a view to securing a friendly

settlement.

 

18.     Active consultations with the Parties took place between July

1984 and July 1986.  On 2 July 1986 the applicant's counsel informed

the Commission that his client had been arrested on 23 June 1986 in

the Netherlands on several charges and requested the Commission to

suspend examination of the case pending further developments.

 

19.     In the light of the communication received from the applicant

on 3 October 1986, from which it appeared that the applicant had been

convicted and sentenced to 9 years' imprisonment for robberies in the

Netherlands, the Commission now finds that there is no basis upon

which such a settlement can be effected.

 

C.      The present Report

 

20.      The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

 

                MM.  C.A. NØRGAARD, President

                     J.A. FROWEIN

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     S. TRECHSEL

                     B. KIERNAN

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.-C. SOYER

                     H.G. SCHERMERS

                     H. DANELIUS

                     G. BATLINER

                     H. VANDENBERGHE

                Mrs.  G. THUNE

                Sir  Basil HALL

                Mr.  F. MARTINEZ

 

 

21.     The text of this Report was adopted on 14 May 1987 and is

now transmitted to the Committee of Ministers of the Council of Europe

in accordance with Article 31 para. 2 of the Convention.

 

22.     The purpose of the Report, pursuant to Article 31 of the

Convention, is:

 

        i.      to establish the facts; and

 

       ii.      to state an opinion as to whether the facts found

                disclose a breach by the State concerned of

                its obligations under the Convention.

 

23.     A schedule setting out the history of the proceedings before

the Commission is attached hereto as Appendix I and the Commission's

decisions on the admissibility of the application forms Appendix II.

 

24.     The full text of the parties' submissions, together with

the documents lodged as exhibits, are held in the archives of the

Commission.

 

 

II.     ESTABLISHMENT OF THE FACTS

 

25.     This section of the Report contains a description of the

undisputed facts found by the Commission on the basis of the

information submitted by the Parties and the visit carried out by the

Commission's Delegation.

 

A.      Relevant domestic law

 

26.     The conditions for the confinement and detention of persons of

unsound mind involved in criminal proceedings in Belgium were

originally laid down in the Act of Social Protection in respect of

Mental Defectives and Habitual Offenders ("Loi de défense sociale à

l'égard des anormaux et des délinquants d'habitude") of 9 April 1930

("the 1930 Act").

 

27.     Confinement on the basis of that Act could be ordered by the

trial court if it was satisfied that the person concerned had

committed an act defined as a criminal offence or crime and that he

was mentally insane or seriously suffering from mental disorder which

rendered him incapable of controlling his acts (Article 7).  Depending

on the nature of the offence, the confinement could last for 5, 10 or

15 years (Article 19).

 

28.     A discharge could be ordered if the mental condition of the

patient had improved to such a degree that he no longer constituted a

danger to the public (Article 20).  The decision as regards the

patient's discharge lay with a board, composed of a magistrate, a

barrister and a doctor attached to the psychiatric ward of the

penitentiary (Article 13).

 

        If discharge had not been ordered by the competent board,

the trial court could, at the request of the public prosecutor, renew

the confinement order for another 5, 10 or 15 years (Article 22).

 

29.     The provisions of this Act were replaced by new legislation

enacted on 1 July 1964 (the "1964 Act").  The major relevant features

of the 1964 Act can be described as follows:

 

30.     Confinement on the basis of the Act may be ordered by the

trial court in respect of persons who have committed a crime or a

criminal offence and who, at the time of the trial, are mentally

insane or in a serious state of mental disorder rendering them

incapable of controlling their acts (Article 7).  This decision is

subject to appeal (Article 8).

 

31.     Detention is ordered for an indefinite period.  The execution

of the detention order falls within the competence of a Mental Health

Review Board ("Commission de défense sociale"), set up under Article

12 of the Act, consisting of three members: an actual or honorary

magistrate, who presides, a barrister and a doctor, each of them

having several substitutes (Article 12).

 

         The president and his substitutes are designated by the first

president of the Court of Appeal.  The barrister and his substitutes

are chosen by the Minister of Justice from two lists of three names,

one submitted by the public prosecutor's office, the other by the

president of the bar.  The doctor and his substitutes are designated

by the Minister of Justice.

 

32.     The Mental Health Review Board determines the place of

confinement (Article 14).  It may also order the transfer of the

patient to another institution, either ex officio or at the

request of the public prosecutor or the detainee or his counsel, or

order a limited release scheme, subject to conditions fixed by the

Minister of Justice (Article 15).

 

        In case of emergency, transfer to another institution may be

ordered provisionally by the President of the Mental Health Review

Board, subject to approval by the Board at its next meeting (Article

17 para. 1).  The Minister of Justice may also order the transfer of

the detainee to another institution for reasons of security (Article

17 para. 2).

 

33.     Before determining the place of confinement the Mental Health

Review Board may seek the advice from an independent doctor.  The

detainee may submit a medical counter-expertise by a doctor of his own

choice.  The detainee or his counsel must be heard by the Mental Health

Review Board.  The file is made available to the detainee's counsel

for four days.  Hearings by the Mental Health Review Board are held

in camera.  If the presence of the detainee is not possible

for medical reasons, the detainee is represented by counsel.  The

deliberations of the Mental Health Review Board are held in private

(Article 16).

 

34.     The competent Mental Health Review Board keeps itself

regularly informed of the state of mental health of the detainee.  It

examines the question of discharge ex officio, or at the

request of the public prosecutor, or upon application by the detainee

himself or his counsel.  Discharge may be ordered unconditionally or

conditionally if the patient's state of mental health has improved

sufficiently and if conditions for social rehabilitation are met

(Article 18 para. 1).

 

        If the discharge which is decided is conditional, the patient

is subject to medico-social supervision, details of which are

specified in the discharge order (Article 20 para. 1).

 

        Unsuccessful applications for discharge by the detainee may

only be renewed six months after the decision concerned (Article 18

para. 2).

 

35.     The decision to discharge a detainee, which may not be

executed until after two days, is notified to the public prosecutor,

who may appeal.  Appeals are examined by the Mental Health Review

Appeals Board ("Commission Supérieure de défense sociale").  The

Mental Health Review Appeals Board consists of an actual or honorary

judge at the Court of Cassation or at a Court of Appeal, a barrister

and a medical doctor with special qualifications (Article 13).  The

detainee and his counsel are heard and Article 16 applies accordingly.

The Mental Health Review Appeals Board must decide within one month

(Article 19).

 

36.     A person who is confined on the basis of this Act does not

automatically lose the capacity to administer his property.  However,

in the interest of the detainee, a provisional administrator may be

appointed (Article 29 para. 1) either by judicial decision or by

decision of the competent Mental Health Review Board.

 

B.      Particulars of the present application

 

37.     On 28 March 1961 the Indictment Chamber of the Ghent Court of

Appeal directed that the applicant be confined for a period of 15

years to a special institution on the basis of the 1930 Act, it having

been established that the applicant had committed double homicide,

murder and attempted murder and a series of qualified thefts.

 

38.     On the same day the Mental Health Review Board of Ghent

ordered that the applicant be placed in the custodial mental

institution ("Etablissement de défense sociale") at Tournai.

 

        Since then he has been kept most of the time at that

institution and most of his complaints concern his treatment there.

It should, however, be mentioned that he stayed elsewhere for certain

periods.

 

39.     In the course of December 1961 it was decided that the

applicant should be transferred to Turnhout.  In June 1962 the

applicant was returned to Tournai.

 

40.     In July 1963, following a decision by the Mental Health Review

Board, the applicant was again returned to Turnhout.  He escaped from

that institution on 6 January 1964 and was re-arrested on 11 January

1964.

 

        Following his escape, the Mental Health Review Board on

3 February 1964 ordered that he should be returned to Tournai as it

considered that this institution was the only one which was

sufficiently secure for dangerously insane persons such as the

applicant.

 

41.     In the course of December 1966 the Mental Health Review Board

acceded to the applicant's request for transfer to the psychiatric

ward of the Ghent prison in order to be examined by the psychiatrist

of his own choice, Dr.  Geirnaert.

 

42.     On 1 March 1967 the applicant was again returned to Tournai.

On 10 March 1967 the applicant made an unsuccessful attempt to escape

from the courtyard.  As from September 1967 the applicant was placed

under special surveillance.

 

43.     In December 1967 he was transferred back to the psychiatric

ward of Ghent prison, from where he attempted to escape on 21 February

1968.

 

        Following this incident the Minister of Justice ordered in

conformity with Article 17 para. 2 of the Act that, for reasons of

security, he should be transferred to Tournai.

 

44.     In December 1969 the Mental Health Review Board ordered the

applicant's transfer to the psychiatric unit of Ghent prison.

 

        On 23 February 1970, the applicant was again transferred to

Turnhout.  For security reasons he was placed for a long period under

close surveillance.

 

        The applicant was returned to Tournai on 16 August 1971.

 

        On 27 April 1972 the applicant was transferred at his request

to Ghent for a period of 15 days in order to facilitate visits by his

mother.  The Mental Health Review Board authorised his stay in Ghent

until October 1973.  It instructed a team of three medical experts to

report on the applicant's state of mental health.

 

45.     On 9 October 1973 the Mental Health Review Board rejected a

request for release introduced by the applicant considering that no

substantial improvement in the mental condition of the applicant had

occurred and decided to return the applicant to Turnhout.

 

        The director of the prison of Turnhout informed the Minister

of Justice by letter of 16 October 1973 of his doubts as regards the

propriety of the applicant's return to that institution, in view of

the difficulties he had caused in the past for his fellow detainees

and the prison staff.  The Minister then decided on 20 October

1973, in accordance with Article 17 para. 2 of the 1964 Act,

to return the applicant to Tournai for security reasons.

 

46.     On 4 July 1975 it was decided, after consultations between the

President of the Mental Health Review Board and the prison

administration, to transfer the applicant to the prison of St.  Gilles

for a thorough personality examination.  This prison comprises a

Penitentiary Orientation Centre (Centre d'Orientation Pénitentiaire

("C.O.P.")), run by a multidisciplinary team, directed by a

psychiatrist, Prof.  De Waele, assisted by other psychiatrists,

psychologists, sociologists and criminologists as well as social

workers.

 

        On the advice of the above team laid down in a report of 1

October 1976, the Board ordered on 5 February 1977 the applicant's

release on probation for a period of 10 years.  This decision was to

become effective as soon as the Board found that a number of

conditions regarding lodging, employment and monitoring of the

applicant were fulfilled.

 

47.     The Public Prosecutor of Ghent appealed against this decision

in accordance with Article 19 of the Act.  The appeal was examined by

the Mental Health Review Appeals Board which, on 3 March 1977, allowed

the appeal and decided that the applicant's confinement should be

maintained.   The Mental Health Review Appeals Board considered that

it was insufficient for the Mental Health Review Board to find an

improvement in the mental state of the prisoner.  It required

conditions for social rehabilitation to be fulfilled simultaneously

and cumulatively.

 

48.     On 9 May 1977 the applicant again tried to escape.

 

        Having re-examined the applicant's case on 20 September 1977

the Mental Health Review Board decided on 5 October 1977 to maintain

the applicant's confinement but to place him under semi-custodial care

in the specialised institution at Merksplas, designed for male

criminals not suffering from mental illness.

 

        The Minister of Justice, in conformity with Article 17 para. 2

of the Act, decided to suspend provisionally the execution of this

decision and to request the C.O.P. to fix, together with the prison

authorities concerned, details of the applicant's detention scheme.

 

49.     In a report drawn up on 18 November 1977, the C.O.P. informed

the Mental Health Review Board and the administration of Ghent prison

that the transfer of the applicant to Merksplas was not an appropriate

way of treating the applicant.  It was suggested that he be released

on probation with a view to his gradual reintegration into society.

Pending the decision of the Board the applicant remained in Ghent.

 

50.     On 25 May 1978 the Mental Health Review Board decided to grant

a leave permit of one day for the months of June, July and August and

to allow the applicant to work as a gardener in a convent under the

surveillance of a staff member of the C.O.P.  The first leave took

place on 15 June 1978.

 

        The C.O.P. then recommended the transfer of the applicant to

the psychiatric ward of the Louvain prison in order to continue from

there in close contact with the prison authorities the rehabilitation

scheme.

 

51.     In a report drawn up on 13 July 1978 Prof.  De Waele concluded

that the applicant's conduct augured a very unfavourable future for

him in the long run.  The fact that at this advanced stage of the

rehabilitation scheme he was not willing to comply with any of the

conditions imposed made it almost certain, in his view, that if he

were free, he would try to avoid any form of control and supervision

and would behave as a "lone wolf".

 

52.     On 14 July 1978 the Minister of Justice, in accordance with

Article 17 para. 2 of the 1964 Act, decided to transfer the applicant

provisionally to Tournai.

 

        On 18 August 1978, the applicant escaped after having attacked

a staff member of the institution.  He was rearrested on 20 August

1978.

 

53.     In the course of October 1978 he was transferred for a period

of 15 days to the psychiatric ward of Ghent prison in order to

facilitate visits by his mother.

 

        He was returned to Tournai on 25 October 1978.

 

54.     On 16 April 1980 the Mental Health Review Board ordered the

applicant's transfer to the prison of Turnhout for a psychiatric

examination to be carried out by Dr.  Landuyt, head of the psychiatric

ward of the Stuyveberg hospital in Antwerp.  The applicant was

admitted there on 8 May 1980.

 

        On 9 December 1980 the Mental Health Review Board re-examined

his case on the basis of the medical report established by Dr.  Landuyt

on 20 October 1980.  The latter had concluded that the applicant did

not suffer from insanity or serious mental disorder and that he

disposed of the mental faculties to assert himself in society

"provided he could benefit from a sufficiently guided and lengthy

transitory phase in an adequate environment" ("mits een voldoende

begeleide en langdurige overgangsfase in een geschikt milieu").

 

55.     The Mental Health Review Board decided however to continue the

applicant's detention.  The applicant introduced a plea of nullity

against this decision which was rejected by the Court of Cassation on

10 February 1981.  The Court of Cassation considered that insofar as

the plea of nullity was directed against the decision not to release

the applicant, the plea was unfounded since the decision had been

taken in accordance with the law.  Insofar as it was directed against

the modalities of the execution of the detention order the Court of

Cassation declared itself incompetent.

 

56.     On 12 March 1981 the applicant made a new attempt to escape

from Turnhout, after which he was returned to Tournai on 25 March 1981

by decision of the Minister of Justice in accordance with Article 17

para. 2 of the 1964 Act.

 

        On 16 August 1981 the applicant escaped and was rearrested on

18 August 1981.

 

57.     In September 1981 and March 1982 the applicant was

provisionally transferred to the psychiatric ward of Ghent prison for

a period of three weeks, each time in order to allow him to be

visited by his mother.

 

58.     A medical report of 12 February 1982 drawn up by the doctors

of Tournai for the attention of the Mental Health Review Board

qualified the applicant as a "cold psychopath, particularly dangerous,

although not in an overt manner, whose continued detention was

necessary but whose transfer to a prison in a Flemish establishment

was highly desirable for obvious cultural reasons".

 

59.     On 13 May 1982 the Mental Health Review Board decided to

transfer the applicant provisionally to Ghent prison for a period of 3

months and to grant him a gradual leave scheme under the supervision

of the Ghent social rehabilitation office.

 

        Leave was first granted on 27 May 1982.  The applicant devoted

most of his time to gardening in a home.  Leave was again granted on

9 June 1982.

 

 

60.     On 29 June 1982 the Mental Health Review Board re-examined the

applicant's case and decided to continue the one-day leave permits.

 

        During the third leave, which took place on 7 July 1982, the

applicant escaped and left Belgian territory.  Two days later he was

arrested in the Netherlands.  In December 1982, in the framework of

extradition proceedings which followed, the applicant underwent a

psychiatric examination.  The psychiatrist, Dr.  Leloup, concluded that

the applicant was not mentally ill.

 

C.      Visit by the Delegation of the Commission to the

        Institution at Tournai

 

61.     The Delegation of the Commission, designated in conformity with

Article 28 para. 2 of the Convention (cf. para. 14), visited the

custodial mental institution ("Etablissement de défense sociale") at

Tournai in order to enquire about the conditions under which the

applicant had been detained in this institution, in particular having

regard to the applicant's complaints under Article 3 of the

Convention.  The Delegation established the following:

 

62.     The institution was built at the end of the 19th century

(1883) and has partly been renewed since.  The building was composed

of two wings, separated by an administrative unit in the centre.  The

west wing was designed for the treatment of psychiatric (civil)

patients on a voluntary basis or compulsorily (following a "mesure de

collocation") and the east wing for the treatment of mentally abnormal

offenders confined on the basis of the Act of Social Protection.  The

two wings were strictly separated.  The "offenders" unit had

accommodation for 240 patients.  At the time of the visit it housed

219 patients.  It comprised 280 warders and nurses and 8 doctors while

at the time of the applicant's confinement there had been only 6

doctors.  The unit was composed of a number of pavilions, three of

which (Nos. 8, 9 and 10) had been closed down for lack of means.

Three other pavilions (Nos. 14, 15 and 16) were operative.

 

        The applicant spent most of his confinement in pavilion 15,

the special security unit, and only short periods in pavilion 16.

 

63.     Pavilion 15 is composed of two stories, the ground floor for

patients representing a special security risk and the first floor for

the more chronic patients.  The pavilion is surrounded by a courtyard

and a wall.

 

        The admittance/observation ward, which has a capacity of 30

patients, is located on the ground floor.  It consists of a large

dormitory (approx. 80m2) which contains 8 beds.  The dormitory gives

direct access to a toilet, separated from it by a door with a small

window.  Wash basins are inside the dormitory.  Water supply is

regulated externally.  The dormitory has large barred windows looking

onto a courtyard and pavilion 16.

 

         Adjacent to this dormitory is a dining room and lounge of

approximately the same size, furnished with two bare tables and four

long benches.

 

         On the other side of the corridor there is a bathroom with

5 showers and 1 bathtub.  Each patient is entitled to two showers a

week.  The bathtub is used only for special cases such as for patients

who cannot stand up.  The ground floor further comprises the

psychologist's and the psychiatrist's offices, a chaplain's office and

a visitors' room.  Visits are allowed every second Sunday and

non-alcoholic beverages may be served (against payment).

 

64.     The ground floor also comprises single rooms, one of which the

applicant had occupied a number of times.  All single rooms are

identical.  They are approximately 10-12m2 and are furnished with a

bed, cemented to the floor, an inbuilt flush lavatory, a table and a

wash-basin.  The external windows, although fairly large (1-1.5m2),

are situated above eye level and cannot be looked through unless by

climbing on the bed or table which is prohibited.  The rooms can be

inspected from the corridor through observation windows which are

screened by small curtains.  No television or radio is allowed in

these rooms.

 

         The first floor comprises a large dormitory, a kitchen, a

recreation/TV room and a dining room.  There are further single rooms

of the same size and containing the same furniture as those on the

ground floor.  The applicant had occupied a room on the first floor in

the ward referred to as "the small corridor" ("le petit couloir")

which accommodates 5 to 7 inmates.  He had been allowed to use a

separate room adjacent to his to stock the material for his work

(folding cardboard boxes).  The applicant performed his work in his

room and not in a common workshop.

 

        The detention conditions in pavilion 16 were quite different:

Patients in these wards had the possibility to give a personal

character to their rooms by decorating them.  A number of the patients

had a transistor and/or TV in their room.  The time spent by the

applicant in this ward was, however, short.

 

65.     The Delegation also interviewed various members of the staff

of the institution.

 

        The principal doctor of the institution pointed out that no

linguistic problem had ever arisen for the applicant during his stays

at the institution.  His knowledge of French was adequate and he even

spoke French when he was under emotional stress.  On the other hand he

could always address the doctors and staff in Flemish, and had had

access to the Flemish library.  The allegation that he had been

subject to sneers by the staff on linguistic grounds was totally

unfounded.  Even if some misunderstandings might have occurred for

linguistic reasons, it had not affected the therapeutic relationship.

 

        Although the transfer of the applicant to a unilingual

Flemish institution might have been desirable, it had not been

indispensable for the effectiveness of his treatment.  Since 1948 the

institution in Tournai hosted the most difficult patients and

dangerous offenders, being the most secure institution that existed

within the country.

 

66.     At the time of the visit 30 patients were housed on the ground

floor and 40 on the first floor of pavilion 15.  At the time of the

applicant's confinement, the pavilion housed a total of 80 inmates.

 

        Night accommodation in pavilion 15 was of two types:

dormitory and single room (chambrette).

 

        Day accommodation on the first floor consisted of a dining

room and a recreation/TV room.

 

        Upon admission each patient was first kept in the observation

ward on the ground floor, where he was accommodated in a dormitory and

an adjacent lounge/dining room.

 

        Subsequently patients were placed by the psychiatrist in

charge of their case in other wards, either on the ground floor or on

the first floor, according to their degree of dangerousness.

 

        The ordinary daily time schedule in pavilion 15 was the

following:

 

                 6.30  -  7.30  - rise

                 7.30  -  8.30  - breakfast

                 8.30  - 11.30  - courtyard (préaux)

                12.00  - 13.00  - lunch

                13.00  - 14.00  - rest

                14.00  - 17.00  - therapy work

                17.00  - 20.00  - dinner followed by recreation

                20.00  - 20.30  - preparation for the night

 

        With the exception of the special admittance ward, meals on

the ground floor were served in the rooms.  On the first floor meals

were served either in the rooms or in the joint dining room.  During

daytime the doors of the rooms in the "small corridor section" were

normally open and inmates were free to move around.  At the time of the

applicant's confinement, therapy work consisted in the folding of

cardboard boxes.

 

        A doctor passed by every day in each ward and could be called

upon by each patient.  The medical visit upon admittance served to

diagnose the nature of the abnormality and subsequently to cure the

patient.

 

67.     The doctor who had treated the applicant in 1962 and

between November 1970 and 1974, described the applicant as a

psychopath with a psychotic propensity and as dangerous, the danger

being mainly caused by his determination to escape.  Prognostics for

his future were not favourable.  The main treatment had consisted in

efforts to dialogue with the applicant.  Discussions with the

applicant were however difficult, the applicant being mainly obsessed

with the idea of leaving the institution.  As far as this doctor could

remember tranquillisers had sometimes been administered to the

applicant.

 

 

68.     The doctor who had been the director between 1967 and 1972 and

had also treated the applicant described him as follows: the applicant

had been confined as a serious case of mental illness.  He was a

psychopath with deeply rooted character disorder.  He was a

simple-minded person of limited intelligence, sly and cunning.  He had

a very closed character, was touchy, had a tendency towards

persecution mania and was distrustful.  His dangerous character could

be inferred from his total lack of self-criticism or remorse.  He had

a tendency to minimise his crimes and lacked any degree of human

warmth or emotions.

 

        The treatment by psychotherapy had been much hampered by the

applicant's uncooperative attitude.  He was always very tense and

sometimes recourse had to be taken to neuroleptics in order to ease

the tension and facilitate the dialogue.  The institutional therapy

(prison work) was hampered by the necessity to be constantly on one's

guard, since the applicant had a permanent desire to evade.  Although

one could not state categorically that the applicant was incurable the

applicant's chances of recovery seemed small.  Frequent incidents had

occurred in which the applicant had not hesitated to make use of

violence.  The staff feared to expose itself to this risk of violence.

 

 

III.    SUBMISSIONS OF THE PARTIES

 

A.      The applicant

 

(i)     Article 3

 

69.     The applicant complains that the conditions of his detention,

taken as a whole, including the extreme isolation to which he was

subjected during some 14 years, constitutes inhuman and degrading

treatment contrary to Article 3 of the Convention.

 

        The applicant's grievances in this respect focus on the

conditions of detention at the custodial mental institution at

Tournai.

 

70.     If, as the authorities seemed to believe, the applicant was

mentally ill, some form of medical treatment would have been

appropriate.  The only "medical" treatment he received was the

administration of tranquillisers.  On some occasions these drugs were

administered to him against his will and the applicant was tied down

with a leather belt.  The same leather belt was used to tie him to his

bed overnight to prevent him from escaping via the window.  Even if

physical force was not used, tranquillisers were often mixed into his

coffee or soup.  The purpose of the administration of these drugs was

to reduce the applicant's will-power and hence his attempts to escape.

 

71.     The applicant had not received any proper psycho-therapeutic

treatment while in detention.  In any event, patients were only

medically examined upon request and not systematically.  Moreover, the

only psychiatrist in Tournai was French-speaking, which reduced the

interest of the already scarce interviews he had had.

 

72.     The conditions of his detention were also inhuman on account

of the fact that he had been segregated from other detainees almost

throughout his confinement in Tournai.  The cell in which he was

detained contained only a bed and a flush toilet and no table or

chair.  It had only one small window which was situated above

eye-level.  He had his daily exercise in a courtyard separate from

other inmates.  His meals were served in his cell and work, if

provided at all, had to be carried out in his cell.  The only

"distraction" offered was a weekly interview with the prison priest.

There were no facilities in the form of a common workshop or any

recreation in the form of listening to the radio or watching

television.

 

73.     Whereas it is true that, as the Commission had held in the

past, the segregation of a prisoner does not in itself constitute

inhuman or degrading treatment, specific circumstances might render

detention conditions contrary to Article 3 of the Convention.

 

        Decisive in this respect was the severity of the measure

concerned, its length, its purpose and its effect on the detainee

concerned and the availability of a minimum of social contacts.

 

74.     Isolating him for such a long period of time was a

disproportionate sanction to his escapes or attempts to escape.

Medical expert opinion had confirmed that he did not constitute a

danger to other prisoners.

 

75.     Finally the applicant's continued detention was also inhuman

because he had no prospects of being released, which was against

generally recognised principles regarding treatment of long-term

prisoners.

 

        He had always regarded the 15-year period as definite and

never even expected any extension.  Moreover, medical expert

opinions tended to confirm that he was not insane.

 

76.     In the absence of any firm criteria for the Mental Health

Review Board, hopes of ever being released became vain.  In his

opinion, with the passage of time his individual interest ought to

prevail over that of the general interest of society, the chances of

a relapse having decreased after 15 years of detention.  His

attempts to escape were the result of the absence of any prospect of

being released and he found himself in a vicious circle.

 

(ii)    Article 5 para. 1

 

77.     The applicant maintains that his continued detention does not

meet any of the requirements of Article 5 para. 1 (a) and (e), these

provisions being concurrently applicable.

 

78.     Following the decision by the Indictment Chamber of the Court

of Appeal of Ghent of 28 March 1961, the applicant's detention

constituted a "lawful detention after conviction by a competent court"

within the meaning of Article 5 para. 1 (a) of the Convention.  The

detention ceased however to be lawful within the meaning of Article 5

para. 1 (a) in 1976, when the 15-years' term expired.

 

79.     For the detention to continue to be lawful beyond that date a

new decision by a court would have been necessary; Article 22 of the

1930 Act provided for a decision of that kind at the request of the

public prosecutor's office.

 

80.     However no such decision could have been taken in 1976, that

judicial competence having been removed by law and replaced by an

automatic conversion of running detentions into detention without

limit of time, discharge being within the discretionary power of the

Mental Health Review Boards.

 

81.     It would appear that the 1964 Act places an excessive emphasis

on the aspect of protection of the public to the detriment of the

fundamental rights of "old" detainees to a judicial decision as a

basis for their detention.  He criticises the absence of transitory

provisions in the 1964 Act.

 

82.     Under the 1930 Act, release before the expiry of the

judicially imposed term was possible if the conditions of the

detainee's mental health had improved to a degree that it could be

assumed that he no longer constituted a danger for the public (Article

20).  The 1964 Act added a further condition for release: it also had

to be ascertained that the conditions for rehabilitation had been

complied with.  As a result of this further condition his detention

had in fact become indefinite without the intervention of a judge.

 

83.     The Mental Health Review Board cannot be assimilated to a

"competent court" for the purposes of Article 5 para. 1 (a).  The

Mental Health Review Boards envisaged by the 1964 Act were as regards

task and composition analogous to those instituted by the 1930 Act.

Whereas the 1930 Act assigned distinct tasks to the Boards and the

judiciary, the 1964 Act conferred increased powers to the Mental

Health Review Boards and reduced the role of the judiciary.

 

84.     The applicant also maintains that his deprivation of liberty

does not meet the requirements of Article 5 para. 1 (e).  Referring to

the judgment of the Court in the case of Winterwerp (Eur.  Court H.R.,

Winterwerp judgment of 24 October 1979, Series A, no. 33, para. 39),

he submits that it has not reliably been shown that he is of "unsound

mind".

 

85.     Whereas at the time of his confinement he could, according to

the medical expertise available at the time, be regarded as suffering

from a mental disorder, for the continued detention to be valid it was

necessary that such disorder persisted.  The medical evidence

indicated the contrary.  The Government have admitted that the Belgian

authorities in 1976 had found an improvement in his condition.  The

applicant further refers in this respect to the medical opinion

establised on 20 October 1980 by a psychiatrist, Dr.  Landuyt, who

concluded in his report that no signs of insanity or mental disorder

could be detected.  The same doctor considered that the initial

diagnosis according to which the applicant showed signs of

schizophrenia was mistaken, since no progressive deterioration of his

personality had occurred in the course of his detention.

 

86.     This medical opinion had subsequently been confirmed by two

medical experts in the Netherlands who examined the applicant in

December 1982 at the request of the Netherlands' Minister of Justice

in the framework of the extradition proceedings.

 

(iii)    Article 5 para. 4

 

87.     The applicant is of the opinion that the Mental Health Review

Board does not satisfy the requirements of Article 5 para. 4 both from

the point of view of its composition and of the proceedings before it.

In fact the Mental Health Review Board systematically rejected the

applicant's request for release, without examining afresh the merits

of his requests.  As regards its composition, the applicant submits

that the judicial members of the Board are of advanced age and have

outdated views.  The medical member has often an administrative link

with the institution where the detainee is confined and lacks

objectivity.

 

88.     As regards the proceedings, the applicant criticises the

excessive importance which is being attached to the initial diagnosis.

In reality no fresh assessment of the detainee's mental health is

carried out and the periodic medical reports are very superficial.  The

proceedings before the Mental Health Review Board do not offer the

guarantees of an independent and impartial tribunal.  The detainee did

not have the possibility of having witnesses or experts heard, the

proceedings lacked the required publicity, and decisions were not

properly reasoned.

 

        In any event the applicant is convinced that the system set up

by the 1964 Act was detrimental to his chances of being released.

 

(iv)    Article 7

 

89.     The applicant also maintains that as a result of the new

legislation he is in a less favourable position than when he was

under the previous Act, which was applicable at the time the criminal

offences were committed, and that this constitutes a breach of

Article 7 of the Convention.

 

        According to the 1930 Act, and in particular its provisions 20

and 21, release was subject to the fulfilment of one requirement only,

relating to the state of mental health of the detainee.  The 1964 Act

added a further requirement thereto relating to social rehabilitation.

As a result of this additional requirement the applicant had been

kept in detention, whereas he would have been released in 1976 if the

provisions of the 1930 Act had still been applicable.

 

B.      The Government

 

(i)     Article 3

 

90.     The Government stress that the custodial mental institution at

Tournai offers the best guarantees of security in Belgium for persons

like the applicant.  It had been medically established that the

applicant constituted a real danger for others.

 

91.     Different forms of treatment had been applied to the

applicant in order to facilitate his integration into society:

instituting a dialogue between the applicant and the medical staff,

medicinal treatment to facilitate the dialogue and work therapy.  All

these methods were to no avail.  This failure was certainly not due to

linguistic obstacles.  His knowledge of French was adequate and the

medical and para-medical staff were sufficiently versed in the Dutch

language to understand the applicant or to make themselves understood

by him.

 

92.     Although his detention lasted from 1961 until May 1982, the

medical and occupational treatment had been constantly adapted to the

requirements of the applicant's state of mental health.  As far as

medical treatment is concerned, the Government confirm that the

applicant had regular interviews with the psychiatrist responsible for

the pavilion to which he was confined.  Every six months a medical

report was drawn up relating to his conduct and the development in his

state of mental health for the attention of the competent Mental

Health Review Board.

 

93.     In view of his propensity to act on impulse the psychiatrist

had recommended sedative drugs, designed to produce a tranquillising

effect on the applicant and facilitate contact with his environment.

He initially accepted the medicaments but refused them when it became

clear to him that he would not be released.  The applicant considered

that his muscular exercises, which he performed in his cell, were

hindered by the use of drugs.

 

94.     As far as prison work is concerned, the Government explain

that the applicant was provided with work which he carried out in a

work-shop.  However as soon as the authorities noticed his firm

intention to escape from prison, the material to work (folding

cardboard boxes) was provided in his cell and he was allowed to stock

the material in an adjacent cell.  Work facilities had been suspended

when he was caught using the material to prepare an escape.  It was

finally the applicant himself who decided not to work any longer as he

preferred to do muscular exercises in his room.  In fact it was his

muscular strength which allowed him to succeed in some of his escapes.

 

95.     As far as the segregation of the applicant is concerned, the

Government stress that he was regarded as a dangerous person and that

this measure was both justified to protect others and for the

maintenance of discipline, order and security in the institution.  The

confinement of the applicant to the special security wing was

proportionate to the applicant's conduct and justified on objective

grounds:  his frequent attempts to escape (7 in all), his failure to

submit to a less strict prison regime and disregard of the prison

rules.

 

96.     Apart from periods when he was subject to disciplinary

sanctions following his attempts to escape, the isolation of the

applicant was not complete.  He had regular exercise and the door of

his cell was opened to allow him to smoke or drink and when the meals

were served.  When he was under disciplinary sanctions the rights to

exercise and smoking were suspended.  Following particularly violent

incidents in connection with his attempts to escape, the applicant had

indeed been tied to his bed by a leather strap around his ankles.  His

room was furnished and he had a wash-basin and a private lavatory in

his room.  In general his detention conditions did not differ from

those of other prisoners who required special surveillance.

 

(ii)    Article 5 para. 1

 

97.     The Government regard the detention of the applicant to be in

conformity with the requirements of sub-paras. 1 (a) and 1 (e) of

Article 5.  The applicant's detention had been ordered in accordance

with the provisions of the 1930 Act by the Indictment Chamber of the

Ghent Court of Appeal on 28 March 1961 for a period of 15 years.

 

98.     Detention ordered on the basis of the Act had a dual aim: on

the one hand the protection of society and on the other hand the

treatment of the offender, in his own interest, in accordance with a

scientifically planned curative scheme.

 

99.     The applicant's confinement had therefore to be envisaged as

lawful detention after conviction by a competent court within the

meaning of Article 5 para. 1 (a) (cf.  Eur.  Court of H.R., case of X v.

the United Kingdom of 5 November 1981, Series A no. 46, para. 39).

However, in view of the specific nature of detention ordered under the

Mental Defectives and Habitual Offenders' Act, control of the

lawfulness under Article 5 para. 1 (a) at the same time corresponded

to control in the light of Article 5 para. 1 (e).

 

100.     The 1964 law reform did not fundamentally modify the

philosophy or structure of the 1930 Act.  Under the 1930 Act the court

which had ordered the detention could, at the request of the public

prosecutor, renew the detention order for a period equal to that

initially imposed (Article 22).  It was for the Mental Health Review

Boards to assess, at any time in the course of these terms, whether

the detainee qualified for release, namely whether his mental

conditions had improved to an extent that it could be assumed that he

no longer constituted a public danger (Article 20).

 

101.     In the 1964 Act the decision as to whether the detainee's

detention should continue was solely with the Mental Health Review

Board.  No fixed terms were set by law and the decision whether a

detainee could be released depended only on the improvement of the

mental conditions of the patient and on the possibilities of his

social rehabilitation.

 

102.     The Mental Health Review Board could take the decision ex

officio, at the request of the public prosecutor or at the request

of the detainee or his counsel every six months (Article 18).  In the

view of the Government the Mental Health Review Board operates as an

independent judicial body whose decisions are moreover subject to

control by the Court of Cassation.

 

103.     The applicant had clearly shown that he did not fulfil the

conditions for discharge set by the law.  The Mental Health Review

Board had closely monitored the development of the mental condition of

the applicant.  In fact a clear distinction could be made between the

period preceding 1977 and the one following 1977.  During the first 15

years the Mental Health Review Board observed the applicant in order

to see whether an improvement in his mental condition had taken place.

Having found that such improvement had indeed occurred, it initiated

in 1977 a rehabilitation scheme.  Notwithstanding this change in

approach, the psychiatrist who examined the applicant in 1978, Dr.  De

Waele, forecast a very negative future for the applicant and

emphasised the danger which the applicant would represent for others

if released.  The applicant's numerous attempts to escape (5 since

August 1978 including his successful escape in July 1982) not only

showed a lack of balance on the side of the applicant but also

emphasised the danger which the applicant represented.

 

104.     In the light of these findings, it could not be argued that

the running of time had broken the link between the initial

confinement order and the decision to keep the applicant in detention.

 

105.     The above examination of the lawfulness of the applicant's

detention in the light of Article 5 para. 1 (a) also corresponded to

the requirements of Article 5 para. 1 (e).

 

106.     If the applicant, after extradition from the Netherlands, were

to be redetained, this detention would be based on the decision of the

Indictment Chamber of the Ghent Court of Appeal of 1961, his detention

constituting the lawful continuation thereof.  Consequently, his fate

was in the hands of the Mental Health Review Board.  He would benefit

from all medical and legal guarantees offered by the applicable law.

 

(iii)   Article 5 para 4

 

107.    The Government are of the opinion that the proceedings before

the Mental Health Review Board satisfy the requirements of Article 5

para. 4.  The Government consider that the periodic control carried

out by the Board constitutes "judicial control" within the meaning of

that provision.  They refer in this respect to a decision by the

Commission (No. 6859/74, Dec. 2.10.75, D.R. 3 p. 139) concerning the

Mental Health Review Board in which the Commission came to the same

conclusion, having regard to the Board's composition, which contained

proceedings before it, which provided adequate guarantees, regard

being had to the particular nature of the circumstances in which the

proceedings take place.  The detainee is always heard and he must be

represented by counsel who has access to the file.  That right may be

denied to the detainee in his own interest.  Moreover the detainee has

the right to submit medical counter-evidence from a doctor of his own

choice.

 

108.    The mere fact that the opinion of the medical expert consulted

by the detainee is not followed by the Mental Health Review Board is

not sufficient to cast doubts on the fairness of the proceedings.

 

109.    The review carried out by the Mental Health Review Board is

moreover of a continuous nature.  In any event the detainee can renew

his request for discharge every six months.

 

(iv)    Article 7

 

110.     In respect of Article 7 the Government recall that the 1964

Act did not place the applicant in a less favourable position than

the 1930 Act.  The 1930 Act did not guarantee the applicant an

absolute right to release at the expiry of the term ordered by the

judicial body, since it provided for a prolongation of the detention

at the request of the public prosecutor.  Such a request could

moreover be repeated.

 

111.     Like the 1964 Act, the 1930 Act also subjected the release of

the detainee to the fulfilment of two conditions, namely on the one

hand the improvement of the state of mental health and on the other

hand the finding that the detainee no longer constituted a public

danger (Article 20).  The latter assessment necessarily had a bearing

on his chances of rehabilitation.

 

        Article 7 had therefore not been breached.

 

 

IV.     OPINION OF THE COMMISSION

 

A.      Points at issue

 

112.    The principal points at issue in the present case are as

follows:

 

1.      whether the conditions of detention in which the applicant was

        held in Tournai amounted to inhuman or degrading treatment

        contrary to Article 3 (Art. 3) of the Convention;

 

2.      whether the applicant was lawfully detained in accordance

        with Article 5 para. 1 (Art. 5-1) of the Convention;

 

3.      whether the procedure available to the applicant for a

        periodic review of the lawfulness of his detention

        corresponded to the requirements of Article 5 para. 4 (Art. 5-4) of

        the Convention;

 

4.      whether the continued detention after 15 years was in

        in violation of Article 7 para. 1 (Art. 7-1) of the Convention.

 

B.      As regards Article 3 (Art. 3) of the Convention

 

113.    The principal issue in the present case is whether the

applicant's conditions of detention and treatment in the custodial

mental health institution at Tournai amounted to a breach of Article 3

(Art. 3) of the Convention.

 

114.    The applicant complains in this respect that he spent most of

his detention in isolation.  He also complains that adequate treatment

and any prospects of being released were lacking.

 

115.    Article 3 (Art. 3) of the Convention reads as follows:

 

        "No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

 

116.    The Commission has already been confronted with a number of

cases of prison isolation of varying duration and severity (cf.

inter alia No. 6038/73, Dec. 11.7.73, Collection 44, p. 115; No.

7854/77, Dec. 12.7.78, D.R. 12, p. 185; No. 8317/78, Dec. 15.5.80,

D.R. 20, p. 44).  It has stated on several occasions that prolonged

solitary confinement is undesirable, especially where the person is

detained on remand.

 

117.    It has on other occasions stated that complete sensory

isolation, coupled with total social isolation, can destroy the

personality and constitutes a form of treatment which cannot be

justified by the requirements of security or for any other reason.

It has moreover drawn a distinction between this and removal from

association with other prisoners for security, disciplinary or

protective reasons, and would not normally consider that this form of

segregation from the prison community amounts to inhuman treatment or

punishment (cf.  No. 5310/71, Ireland v. the United Kingdom, Comm.  Rep.

25.1.76, p. 379; Nos. 7572/76, 7586/76 and 7587/76, Dec. 8.7.78, D.R.

14, p. 64; No. 8317/78, Dec. 15.5.80, D.R. 20, p. 44 at p. 82).

 

        The same reasoning applies mutatis mutandis to persons who

have been committed to a mental hospital in the framework of criminal

proceedings.

 

118.    In making an assessment in a given case, regard must be had to

the surrounding circumstances including the particular conditions, the

stringency of the measure, its duration, the objective pursued and its

effects on the person concerned (cf. also Kröcher/Möller v.

Switzerland, 16.12.82, D.R. 26, p. 24, para. 62).

 

119.  The applicant's complaints relate to the conditions of detention

in the custodial mental institution at Tournai.

 

        As regards the form of isolation to which the applicant was

subjected, the Commission notes that most of the time he was detained

in a room of approximately 10 square metres in a ward on the first

floor of pavilion 15.  Detainees detained in this ward normally have

daily contact with the institution's staff and other detainees on the

occasion of the handing out of food and exercise in the prison yard.

 

        Admittedly during certain periods, the exact length of which is

impossible to establish, the applicant was subject to disciplinary

sanctions.  This involved the loss of a certain number of privileges

such as the right to joint exercise in the courtyard or the right to

take meals in association with other detainees.  It implied that the

applicant was confined to his room and only left it for the purpose of

taking exercise, alone in the courtyard, and that meals were served in

his room.

 

        Following his numerous attempts to escape from the institution

(in 1967, 1978 and 1981) the applicant was moreover placed under

strict surveillance and detained in a room on the ground floor which

offered better guarantees for security.

 

120.    The Commission notes that the situation complained of by the

applicant was mainly the result of his uncooperative and disruptive

behaviour.  It was also clear that the applicant represented a special

security risk given his constant obsession to escape from the

institution.  During one of his attempts to escape he had injured one

of the staff members.

 

121.    The Commission has stressed in the past that in such

circumstances of revolt or fundamental non-cooperation, the State is

not excused from its obligations under the Convention and Article 3 (Art. 3) in

particular.  It recalls its decision in the case of McFeeley v. the

United Kingdom (No. 8317/78, Dec. 15.5.80, D.R. 20, p. 44 at p. 81,

para. 46) where it concluded that prison authorities, when faced with

what is regarded as an unlawful challenge to their authority, must

nevertheless maintain a continuous review of the detention

arrangements employed with a view to ensuring the health and

well-being of all prisoners with due regard to the ordinary and

reasonable requirements of imprisonment.  The same reasoning applies

mutatis mutandis to mental health patients detained under the

Belgian Act of Social Protection such as the applicant.

 

122.     The Commission finds that the Belgian authorities showed

concern for improving the applicant's situation.   On a number of

occasions the applicant was transferred to other institutions and

serious efforts were made to submit the applicant to less strict

detention conditions.  However all these efforts were of no avail

because the applicant abused every attempt of clemency.

 

123.    As regards medical treatment or supervision the Commission

notes that the rules of the institution provide that each patient is

examined every day by a medical doctor or psychiatrist.  It was

explained that in reality this meant that a doctor passed every day in

the ward and could be contacted by a patient if he so wished.

 

        As the applicant was not available to give evidence and in the

absence of medical files recording each medical visit, it is not

possible to determine the frequency with which the applicant tried to

make use of the possibility to have an interview.  According to the

Government actual psychiatric treatment of the applicant was almost

impossible due to his uncooperative attitude.  The applicant maintains

that the medical staff showed no interest in him whatsoever and was

mainly francophone, which made treatment, if any, useless.

 

124.    Although proper psychiatric treatment must indeed be difficult

if it takes place in a foreign language, the Commission accepts that

both the applicant's knowledge of French and the availability of Dutch

speaking staff would have made treatment possible if the applicant had

cooperated.

 

        In the present case the total lack of cooperation by the

applicant made any form of treatment extremely difficult.  The

Commission notes that the psychiatric treatment basically failed as a

result of the applicant's hostile attitude towards the authorities,

including the medical staff.  The linguistic element therefore seems

not to have been decisive for the availability of proper psychiatric

treatment.

 

125.    As far as the administration of tranquillisers is concerned,

the Commission finds that there are no elements in the file to show

that this treatment was not medically justifiable.

 

126.    The applicant also complains of a lack of adequate

employment and occupation.  The Commission notes that the applicant

was employed in folding carton boxes, not in a common workshop but in

his room.  Other forms of employment were not available in the

institution for lack of funds.  It was apparently the applicant himself

who finally decided to give up this activity.

 

127.    On the whole, the Commission retains the impression that,

whilst the applicant was often left idle, the situation was brought

about by himself as he was not only uncooperative but also

constituted a danger for his environment.

 

128.    The applicant also argues that the absence of any prospects

of being released made his continued detention inhuman.

 

        Even assuming that this might raise an issue under

Article 3 (Art. 3) (cf. mutatis mutandis Application No. 7994/77, Dec.

6.5.78, D.R. 14 p. 238), there is no evidence to suggest that these

prospects were indeed lacking.  The applicant's detention was subject to

periodic review within the meaning of Article 5 para. 4 (Art. 5-4) (cf. below,

paras. 148-156).  Provided the applicant satisfied the conditions required by

the law, he could be released.

 

129.      Having regard to all the circumstances of the applicant's

detention and in particular to his hostility towards any form of

treatment as well as his persistent refusal to cooperate or to comply

with the rules of the institution, the Commission concludes that the

applicant's conditions of detention did not attain the seriousness of

treatment envisaged by Article 3 (Art. 3) of the Convention.

 

 

Conclusion

 

130.    The Commission unanimously concludes that in the present case

there has been no breach of Article 3 (Art. 3) of the Convention.

 

 

C.      As regards Article 5 para. 1 (Art. 5-1) of the Convention

 

131.    The applicant complains that his prolonged detention is contrary to

Article 5 para. 1 (Art. 5-1) of the Convention since it is justified neither

under sub-paragraph (a) nor under sub-paragraph (e) of that provision.  The

Government reply that the applicant's detention was and, in the event of his

reinternment, will be lawful and compatible with Article 5 paras. 1 (a) and (e)

(Art. 5-1-a, 5-1-e) of the Convention.

 

132.    Article 5 para. 1 (Art. 5-1) of the Convention, insofar as relevant for

the present case, reads as follows:

 

        "Everyone has the right to liberty and security of person.

        No one shall be deprived of his liberty save in the following

        cases and in accordance with a procedure prescribed by law:

 

        (a)     the lawful detention of a person after conviction by

        a competent court;

 

        ....

 

        (e)     the lawful detention of persons for the prevention of

        the spreading of infectious diseases, of persons of unsound

        mind, alcoholics or drug addicts or vagrants."

 

133.    Both the Commission and the Court have in the past been

confronted with a number of applications from applicants involved in

criminal proceedings who had been placed in a closed institution on

account of their mental insanity.  The question whether the lawfulness

of such detention had to be assessed in the light of paragraph 1 (a) or

paragraph 1 (e) of Article 5 (Art. 5-1-a, 5-1-e) or of both of these provisions

concurrently must depend in the first place of the nature of the detention in

the light of the national law.

 

134.    Whereas according to the Court in the case of X v. the United

Kingdom detention ordered under the 1959 Mental Health Act fell to be

considered both under paragraph 1 (a) and 1 (e) of Article 5

(Art. 5-1-a, 5-1-e) since there had been a conviction (X v the United Kingdom,

judgment of 5 November 1981, Series A, no.46, p.17, para.39), the Commission

and the Court considered in the case of Luberti that the custodial measure

imposed pursuant to Article 222 of the Italian Criminal Code could not be

considered under paragraph 1 (a), the applicant having been acquitted (Luberti

judgment of 23 February 1984, Series A, no. 75, para. 25).

 

135.    Since in the present case the Indictment Chamber of the Ghent

Court of Appeal did not convict the applicant, being satisfied

that he was suffering from a mental disorder warranting his

confinement in a custodial mental institution, the question of the

lawfulness of the applicant's detention must be examined in the light

of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.

 

136.    Since its entry into force the legal basis of the applicant's

continued detention is to be found in the 1964 Act on Mental

Defectives and Habitual Offenders.

 

        Article 7 of that Act provides that a person who has committed

a crime or a criminal offence and who at the time of the trial is in a

state of mental insanity or suffering from serious mental disorder

rendering him incapable of controlling his acts may be confined to a

specialised institution.

 

        Article 18 of the Act makes release subject to the

satisfaction of two requirements: a sufficient improvement in a

detainee's state of mental health and the fulfilment of the conditions

for rehabilitation.  The Mental Health Review Board takes a decision on

the release of a detainee every six months, be it at the request of

the public prosecutor, at the request of the detainee or his lawyer,

or proprio motu.

 

137.    It is not alleged in the present case that the above

provisions of law have not been respected.  What the applicant alleges

is that the wording of Article 18 of the Act, and in particular the

second requirement, gives the Mental Health Review Board a

discretionary power which has been misused to his detriment.

 

 

138.    The Commission recalls that in accordance with the case-law of

the Commission and the Court of Human Rights the notion of lawfulness

of the detention of a person of unsound mind covers procedural as well

as substantive rules.  The individual should not be deprived of his

liberty unless it has been reliably shown that he is of unsound mind.

Furthermore the mental disorder must be of a kind or degree warranting

compulsory confinement.  The validity of continued confinement depends

on the persistence of such disorder (cf.  Eur.  Court H.R., Winterwerp

judgment of 24 October 1979, Series A, no. 33, p. 16, para. 37).

 

139.    The applicant does not contest the lawfulness of his detention

in the light of the above requirements during the first phase of his

detention.  He accepts that on the basis of medical evidence available

at the trial his committal to a specialised institution was justified.

 

140.    He considers that his detention has since ceased to be

justified since he is no longer a person of unsound mind.  He submits

that this view is corroborated by medical evidence.  He relies in

particular on the medical reports established in 1980 by Dr.  Landuyt

for the attention of the Mental Health Review Board and by Dr.  Leloup

in 1982 in the Netherlands in the framework of the extradition

proceedings.

 

141.    The Government, for their part, rely on the view of the Mental

Health Review Board who, notwithstanding the finding that the

applicant's mental health had improved, considered that he did not

fulfil the conditions set by the law for release and in particular not

the condition regarding rehabilitation.

 

142.    The Commission accepts that under the circumstances of the

case and taking account of the danger the applicant could cause to the

society as a whole, his continued detention was justified under

Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.

 

143.    The applicant also argues that given the fact that he was

detained as a person of unsound mind, he was entitled to appropriate

treatment in order to ensure that he was not detained longer than

absolutely necessary.  He submits that he did not receive any form of

therapy and that the only medical treatment he received consisted in

drugs.

 

144.    The Government submit in essence that his treatment was

conditioned by his unwillingness to cooperate and by security

requirements which did not leave room for any other form of treatment.

 

145.    The Commission reaffirms its view that, in principle, Article 5 para. 1

(e) (Art. 5-1-e) is concerned with the question of the actual deprivation of

liberty of mental health patients and not their treatment (cf.  No. 8225/78,

Ashingdane v.  United Kingdom, Comm.  Report 12.5.1983, para. 78).

 

 

146.    Accordingly the Commission is of the opinion that the

applicant's detention constituted "lawful detention of a person of

unsound mind" within the meaning of Article 5 para. 1 (e) (Art. 5-1-e) of the

Convention.

 

 

Conclusion

 

147.    The Commission unanimously concludes that in the present case

there has been no violation of Article 5 para. 1 (Art. 5-1) of the Convention.

 

 

D.      As regards Article 5 para. 4 (Art. 5-4) of the Convention

 

148.    The applicant complains that the proceedings before the Mental

Health Review Boards do not satisfy the requirements of Article 5

para. 4 (Art. 5-4).  He maintains that the Mental Health Review Board was not

impartial and independent and was prejudiced against him and that its

members lacked the required competence in view of their advanced age.

 

149.    He also complains about the non-public character of the

proceedings before the Mental Health Review Board and that decisions

of the Mental Health Review Board are not properly reasoned.

 

150.    The Government disagree with the applicant and regard the

proceedings before the Mental Health Review Boards as being in

conformity with Article 5 para. 4 (Art. 5-4).

 

151.    The Commission recalls that the Court, in the case of X v. the

United Kingdom, held that "in Article 5 para. 4 (Art. 5-4) the word 'court' is

not necessarily to be understood as signifying a court of law of the

classic kind, integrated within the standard judicial machinery of the

country" (Eur.  Court H.R., judgment of 5 November 1981, Series A no.

46, p. 23, para. 53).  In its judgment of 2 March 1987 in the Weeks

Case (Series A, no. 114, para. 61) the Court confirmed this

interpretation, holding that a specialised body such as the Parole

Board could be considered as a "court" within the meaning of Article 5

para. 4 (Art. 5-4).

 

152.    The Commission recalls that it has been called upon in the

past to examine the nature of the proceedings before the Mental Health

Review Boards on the basis of the 1964 Act and has come to the

conclusion that the proceedings in question comply with the requirements of

Article 5 para. 4 (Art. 5-4) (No. 6959/74, dec. 2.10.1975, D.R. 3 p. 139).

 

 

153.    The Commission sees no reason to depart from this conclusion

in the present case, since the file does not contain any elements

which would demonstrate the contrary.  The applicant's complaints in

this respect are of a general nature and do not refer concretely to

specific decisions or to a particular set of facts.  The applicant has

not supplied the Commission with substantial details of these

allegations and the Commission thus finds that it does not have any

basis for considering these complaints.

 

154.    The applicant also complains that he does not have any remedy

against the decision of the Mental Health Review Board not to release

him while the public prosecutor, when notified of the decision by the

Mental Health Review Board to release a detainee, may appeal to the

Mental Health Review Board of Appeal (Article 19).

 

155.    The Commission recalls that it has rejected a similar

complaint in the past considering that a right to appeal cannot be

inferred from Article 5 para. 4 (Art. 5-4) where one of the Parties to the

proceedings has such a remedy at its disposal (cf.  No. 4625/70,

Collection 40, Dec. 20.3.72, p. 21).  The Commission observed in that

case that the detainee concerned could, in any event, introduce a plea

of nullity to the Court of Cassation.  In the present case the

applicant did not make use of that remedy when the public prosecutor

successfully appealed to the Mental Health Review Appeals Board on 3

March 1977.

 

Conclusion

 

156.    The Commission unanimously concludes that in the present case

there has been no violation of Article 5 para. 4 (Art. 5-4) of the Convention.

 

 

E.       As regards Article 7 (Art. 7) of the Convention

 

157.    Article 7 para. 1 (Art. 7-1) of the Convention reads as follows:

 

        "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."

 

158.    The question arises whether the above provision is applicable

by analogy to a situation where a person accused of having committed a

criminal offence is not convicted but is confined to a custodial

mental institution for a particular period of time.  The Commission

does not find it necessary to make a finding on this question since it

is of the opinion that in any event this provision, assuming that it

were applicable to the applicant's allegation, has not been breached

for the following reason:

 

159.    Under Article 19 of the Act of Social Protection in respect of

Mental Defectives and Habitual Offenders 1930 confinement could be

ordered for specific periods (5, 10 or 15 years).  Release was possible

if the mental conditions of the patient had improved to such an extent

that he no longer constituted a danger to society.  This implied that

the terms fixed were in no way binding and that release could be

ordered prior to the expiry of the term.  At the same time the law

provided for an extension of the term if the Mental Health Review

Board considered that the patient could not be released.

 

160.    Therefore, even under the operation of the 1930 Act the

decision whether a detainee is fit for release fell within the power

of the Mental Health Review Board.

 

161.    It is true that the formal decision to prolong a confinement

order under the 1930 Act could be taken only by a judicial body and

that the 1964 Act confers this competence on the Mental Health Review

Board, but that does not affect the relative nature of the measure

itself.   The purpose of the 1964 Act was to reflect in its

proceedings the need to let decisions on continued confinement not

solely depend on legal considerations.  It was for this reason that

decisions regarding continued detention were no longer with the

judiciary but with a body of mixed composition, including a medical

member, since it was considered that such body would better safeguard

the interests of the detainee and the society as a whole.

 

162.    It cannot therefore be argued that the applicant as a result

of the application of the provisions of the 1964 Act found himself in

a less favourable position than in 1961.

 

163.    Accordingly the Commission is of the opinion that the measure

of detention which the applicant underwent after the expiry of the

initial 15 years was a direct consequence of the decision taken in

1961 by the Indictment Chamber of the Ghent Court of Appeal.

 

Conclusion

 

164.    The Commission unanimously concludes that in the present case

there has been no violation of Article 7 (Art. 7) of the Convention.

 

F.      Recapitulation of the Commission's conclusions:

 

1.      The Commission unanimously concludes that in the present case

there has been no breach of Article 3 (Art. 3) of the Convention (para. 130).

 

2.      The Commission unanimously concludes that in the present case

there has been no breach of Article 5 para. 1 (Art. 5-1) of the Convention

(para. 147).

 

3.      The Commission unanimously concludes that in the present case

there has been no breach of Article 5 para. 4 (Art. 5-4) of the Convention

(para. 156).

 

4.      The Commission unanimously concludes that in the present case

there has been no breach of Article 7 (Art. 7) of the Convention (para. 164).

 

 

 

 

 

Secretary to the Commission                President of the Commission

 

 

 

 

 

 

      (H.C. KRÜGER)                              (C.A. NØRGAARD)

 

 

 

APPENDIX I

 

 

History of Proceedings before the Commission

 

 

 

Item                                                 Date

 

Introduction                                24 June 1983

Registration                                27 June 1983

 

 

Examination of admissibility

 

Decision to invite the Government in         9 July 1983

accordance with Rule 42 para. 2 (b)

of the Rules of Procedure to submit

observations on the admissibility and

merits of the application

 

Government's observations                   27 December 1983

 

Applicant's observations in reply           13 April 1984

 

Decision to declare the application         12 July 1984

admissible

 

 

Examination of the merits

 

Consideration of state of proceedings       11 October 1984

and decision to invite parties, in

accordance with Rule 46 para. 2 of the

Rules of Procedure to submit further

observations on the merits

 

Government's observations                    4 February 1985

 

Applicant's observations                    18 March 1985

 

Decision in conformity with Rule            11 May 1985

28 para. 2 of the Rules of Procedure

to appoint a delegation with a view to

visiting the custodial mental health

institution at Tournai

 

Visit by delegation of the custodial        21 June 1985

mental health institution at Tournai

 

Consideration of state of proceedings        6 July 1985

and decision to invite parties to

submit further observations

 

Applicant's observations                    19 September 1985

 

Government's observations                   12 December 1985

 

Appendix I

 

 

 

Grant of legal aid                          14 March 1986

 

Consideration of state of proceedings       14 July 1986

 

Consideration of state of proceedings       11 October 1986

 

Consideration of state of proceedings        6 March 1987

 

Consideration of Report drawn up under       5 May 1987

Article 31 of the Convention,

deliberations and final votes

 

Adoption of the Report                      14 May 1987

 

 

 

 

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