PR - Chamber Judgment - HUDOC - Council of Europe

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Jan 10, 2013 - The case concerned the applicant's detention for over 15 years in a prison psychiatric wing. A court had
issued by the Registrar of the Court ECHR 010 (2013) 10.01.2013

The Court criticises the inadequate care of persons with mental disabilities in Belgian prisons In today’s Chamber judgment in the case of Claes v. Belgium (application no. 43418/09), which is not final1, the European Court of Human Rights held, unanimously, that there had been: A violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights, and A violation of Article 5 §§ 1 and 4 (right to liberty and security and right to have the lawfulness of detention decided speedily). The case concerned the applicant’s detention for over 15 years in a prison psychiatric wing. A court had ruled that he was not criminally responsible for his actions. The Court considered that the national authorities had not provided the applicant with adequate care and that he had been subjected to degrading treatment as a result. The Court stressed that a structural problem existed on account of the inability to afford appropriate care to persons with mental disorders who were held in prison owing to the shortage of places in psychiatric facilities elsewhere. The Court today also found violations of the Convention in the cases of Dufoort v. Belgium (no. 43653/09) and Swennen v. Belgium (no. 53448/10).

Principal facts The applicant, André Claes, is a Belgian national who was born in 1952. He is currently being held in the psychiatric wing of Leuven prison (Belgium). The applicant was first detained in 1978 for the repeated rape of his underage sisters, following a judgment of 2 February 1978 by the Leuven Criminal Court according to which he was not criminally responsible for his actions. In 1982 he was again detained for sexually assaulting a child. In 1983 the Mental Health Board decided that he should be transferred to a private psychiatric clinic. However, owing to his aggressive behaviour and a further sexual assault, he was returned to the psychiatric wing of Merksplas prison. In 1987, after a period of release on a trial basis, he was arrested for indecent assault and placed in the psychiatric wing of Turnhout prison. In 1994, following several incidents involving young girls and female care staff in the psychiatric hospital to which the applicant had been admitted, and in the wake of psychologists’ reports describing him as a manipulative and dangerous individual who was not capable of living in society, the Mental Health Board, referring to the Criminal Court judgment of 2 February 1978, ordered the applicant’s return to the psychiatric wing of Merksplas prison.

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution

A number of opinions prepared by the prison’s psychosocial unit in 2002 and 2004 noted the unsuccessful efforts to find a residential placement for the applicant. In 2005 the Mental Health Board extended the applicant’s detention until such time as he could be placed within the Flemish care system for disabled people. In December 2007 the applicant sought an injunction against the Belgian State ordering the authorities to find him a place in a suitable institution, complaining of the poor standard of care in prison psychiatric wings and the unsuitability of the prison environment for persons with mental disabilities. In 2008 he again applied for an injunction against the State. The president of the court dismissed both applications, pointing out that the decision to place a person in a suitable facility fell to the Mental Health Board alone and not to the urgent-applications judge, who had no jurisdiction in the matter. On 15 April 2009 the Antwerp Court of Appeal upheld the finding that the urgent-applications judge lacked jurisdiction, on the grounds that, under sections 14 and 15 of the Social Protection Act, the Mental Health Board had exclusive powers regarding the place of detention. In 2008 and again in 2009 the Mental Health Board upheld the order for the applicant’s detention in Merksplas prison, finding that the staff of the prison psychiatric wing were doing their best to improve conditions for the applicant and that the principal aim being pursued was to protect society as a whole and children in particular from the risk of sexual abuse. The Board added that it did not have the power to order the authorities to provide the applicant with a place in a secure psychiatric unit where he would be closely supervised by therapists specialising in sex offences. In September 2009 the Mental Health Board ordered the applicant’s release on a trial basis. He was transferred to a centre run by an association providing services to people with mental disabilities. In June 2011 the Mental Health Board informed the public prosecutor that, owing to the applicant’s aggressive behaviour, it was no longer possible to ensure the safety of the centre’s residents and staff. The applicant was arrested and placed in the psychiatric wing of Leuven prison.

Complaints, procedure and composition of the Court Relying on Article 3, the applicant alleged that his detention for over 15 years in a prison psychiatric wing, where he did not receive the care and support his condition required and where he had no realistic prospect of his situation being reviewed, amounted to inhuman and degrading treatment. Relying on Article 5 § 1 (right to liberty and security), the applicant complained that he had been deprived of his liberty. Mr Claes further alleged that the appeal procedure before the mental health authorities was unfair and ineffective. The application was lodged with the European Court of Human Rights on 3 August 2009. Judgment was given by a Chamber of seven judges, composed as follows: Mark Villiger (Liechtenstein), President, Angelika Nußberger (Germany), Boštjan M. Zupančič (Slovenia), Ann Power-Forde (Ireland), André Potocki (France), Paul Lemmens (Belgium),

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Helena Jäderblom (Sweden), and also Claudia Westerdiek, Section Registrar.

Decision of the Court Article 3 The Court observed that the applicant had health problems, in the form of a severe, chronic behavioural disorder that had been diagnosed by a psychiatrist as far back as 1977. He had a serious intellectual disability and was considered by the authorities to be “mentally disabled”. He had been detained between 1994 and 2009 in the psychiatric wing of Merksplas prison and since 2011 was being held in the psychiatric wing of Leuven prison. The Court noted that nothing in the reports written by the doctors and the psychosocial unit in Merksplas prison indicated that the applicant had received treatment appropriate to his condition. The Court reiterated the fundamental importance of providing persons with treatment that matched their diagnosis and with appropriate medical supervision. From 2002 onwards the psychosocial unit, backed up by the Mental Health Board, had observed an improvement in the applicant’s condition and mentioned the possibility of his situation being reviewed. He had remained in the psychiatric wing until 2009, as no facility had been found that was prepared to accept him. This long-lasting situation had had a detrimental effect on the applicant’s psychological state. The Court acknowledged that the applicant’s mental state made him more vulnerable than an ordinary prisoner and that being held for such a long time in the psychiatric wing would have exacerbated his feelings of distress. The Court attached great importance to the fact that the applicant’s allegations were corroborated by unanimous findings at both national and international level criticising deficiencies and shortcomings with regard to the unsuitability of psychiatric wings for the detention of persons with mental health problems, staff shortages, the poor standard of care, the dilapidated state of premises, overcrowding in prisons and a structural shortage of places in psychiatric facilities outside prison. The Court noted that the applicant’s situation in fact stemmed from a structural problem. The support provided to persons detained in prison psychiatric wings was inadequate and placing them in facilities outside prison often proved impossible either because of the shortage of places in specialised institutions or because the relevant legislation did not allow the mental health authorities to place them in external facilities. The Court considered that the national authorities had not provided the applicant with the care required by his state of health and found that he had been subjected to degrading treatment on account of his continuing detention in inadequate conditions. It held that there had been a violation of Article 3 of the Convention.

Article 5 § 1 (e) The applicant’s detention had been based on the judgment delivered by the Leuven Criminal Court on 2 February 1978 after the applicant had been charged with the rape of his underage sisters and following a psychiatrist’s report dated 27 April 1977. In the absence of a “conviction”, the applicant’s detention came within the scope of sub-paragraph (e) of Article 5 § 1. The Court did not dispute that his detention had been ordered “in accordance with a procedure prescribed by law” within the meaning of Article 5 § 1.

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The Court reiterated that the detention of a person for reasons relating to his mental health could only be considered lawful for the purposes of Article 5 § 1 if it was effected in an appropriate institution. Although the applicant had been placed in the psychiatric wing of Merksplas prison, he had not been provided with the appropriate treatment. His continued confinement there had been due simply to the impossibility of finding him a place in an external facility. In the Court’s view, the failure to provide him with the appropriate care stemmed from a structural problem; while the persistent personal conduct of persons deprived of their liberty could pose an obstacle to their being placed under a different detention regime, this did not dispense the authorities from their duty to take the appropriate steps to ensure that the persons concerned received treatment adapted to their condition that might help them recover their freedom. This was all the more necessary given that Mr Claes suffered from a mental disability and had been found not to be criminally responsible for his actions. There had therefore been a violation of Article 5 § 1 (e) of the Convention.

Article 5 § 4 Article 5 § 4 provided a fundamental safeguard against arbitrary detention in requiring that an individual who was deprived of his liberty had the right to have the lawfulness of that detention reviewed by a court. In the case of detention on the ground of mental illness, special procedural safeguards might be called for in order to protect the interests of persons who were not fully capable of acting for themselves. Persons detained for an indefinite or lengthy period were entitled to take proceedings at reasonable intervals before a court to put in issue the lawfulness of their detention. Under section 18 of the Social Protection Act, the mental health authorities were responsible for reviewing the lawfulness of detention on mental health grounds. In the instant case the Mental Health Board had the power to rule on the lawfulness of a person’s detention and order his or her release if it was found to be unlawful. In its decision of 2 March 2009 the Board had refused the applicant’s request that it visit his place of detention in order to see for itself that it was unsuitable and, in the absence of places in an external facility, had found that it did not have the power to order that a suitable place be made available to the applicant. In the Court’s view, that decision had deprived the applicant of a review that was sufficiently wide for the purposes of Article 5 § 4, as it had not encompassed one of the essential conditions for the “lawfulness” of his detention within the meaning of Article 5 § 1 (e), namely the appropriateness of the place of detention. The Court also observed that the applicant had not had access to the ordinary courts in order to obtain a ruing on the appropriateness of the psychiatric wing of Merksplas prison, as his application to the urgent-applications judge had been dismissed for lack of jurisdiction. The Court held that there had been a violation of Article 5 § 4 of the Convention.

Just satisfaction (Article 41) The Court held that Belgium was to pay the applicant 16,000 euros (EUR) in respect of non-pecuniary damage. The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on www.echr.coe.int. To receive the Court’s press releases, please subscribe here: www.echr.coe.int/RSS/en. Press contacts

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[email protected] | tel: +33 3 90 21 42 08 Denis Lambert (tel: + 33 3 90 21 41 09) Tracey Turner-Tretz (tel: + 33 3 88 41 35 30) Céline Menu-Lange (tel: + 33 3 90 21 58 77) Nina Salomon (tel: + 33 3 90 21 49 79) The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

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