MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-11

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-11 L.B. group (Application No. 22831/08) and W.D. (Application No. 73548/13) v. Belgium Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1144, CM/Del/Dec(2023)1475/H46-8

 

Application	Case	Judgment of	Final on	Indicator for the classification
22831/08	L.B.	02/10/2012	02/01/2013	Structural problem
22283/10	LANKESTER	09/01/2014	09/04/2014
49484/11+	SMITS	03/02/2015	03/02/2015
73548/13	W.D.	06/09/2016	06/12/2016	Pilot judgment
46130/14	VENKEN AND OTHERS	06/04/2021	06/09/2021

Case description

This group concerns the prolonged internment of the applicants, criminally irresponsible for their actions, in prison psychiatric wings^[1] not offering appropriate care for their mental health disorders (violation of Article 5 § 1 in all cases and violation of Article 3 in certain cases).

The Court underlined that this situation was a structural problem: the support provided to internees in these wings was insufficient and their placement outside prison was often impossible due to the lack of places in psychiatric hospitals or because the law did not allow the “social defence commissions”[2] to enforce placement there.

The Court also noted in several cases the lack of an effective remedy to complain about the unlawfulness and conditions of detention (violations of Articles 5 § 4 and 13 combined with Article 3). According to it, even if recourse to the “social defence commissions” could, in principle, satisfy the requirements of Article 5 § 4, their limited powers resulting from the structural problem prevented them, in practice, from a fairly extensive control over the appropriateness of places of detention and, in law, from redressing the violations alleged. In certain cases, the Court also noted the lack of an effective remedy before the interim judge.

In the W.D. pilot judgment (2016), the Court, under Article 46, encouraged the State to take action to reduce the number of internees, in prison psychiatric wings without appropriate therapeutical treatment, notably by redefining the criteria justifying an internment measure. The Court gave the authorities two years to remedy the situation and it adjourned, in the meanwhile, its review of similar cases.

In the Venken and Others judgment (2021), the Court noted a significant reduction in the number of internees in prison (537 on 1^st December 2019), mainly due to two new forensic psychiatric centres, where care seemed satisfactory according to the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT).

However, given the number of internees still in prison in inappropriate conditions, the Court encouraged the State to confirm this positive trend and to continue its efforts to resolve the problem definitively. As to the remedy, the Court validated the amount of compensation awarded by domestic judges, but not the way in which the prescription limit was applied, which did not cover the entire period of continuous violation. In addition, the Court held that the remedy before the social protection chambers was not effective because of the interpretation of the concept of urgency and the length of the interval between their decisions in the context of the automatic periodical review. Nevertheless, it considered the interim remedy to be effective, given the creation of numerous places in forensic psychiatric centres and the positive development of the case-law, without prejudging a possible re-examination (§ 214).

Status of execution

On 10 October 2024, the authorities submitted a new action plan (DH-DD(2024)1144).

Individual measures

Just satisfaction has been paid to all applicants and none are in prison anymore, with the exception of one applicant who has been placed in the social defence section of Merksplas following the revocation of his release on probation in February 2024 (De Smedt (case of Smits and Others). The situation of the other applicants is the following: one has been definitively released (L.B.); five are placed in a forensic psychiatric centre (Smits and Van Den Bossche (case of Smits and Others), W.D., Venken and Neirynck (case of Venken and Others)), five are released on probation (Krynen and Taelman (case of Smits and Others), Rogiers, Clauws and Van Zandbergen (case of Venken and Others)); one is placed in a long-stay psychiatric centre (Cleys (case of Smits and Others)); and one is wanted by the police (Lankester).

General measures

Statistical evolution: After a significant decrease between 2014 (1,088) and 2018 (529), the average number of internees in a penitentiary environment (psychiatric annexes, social defence section (SDS) and social defence institution (SDI)),^[3] has increased again continuously since 2019 (595 for 2020, 688 for 2021, 784 for 2022 and 906 for 2023). In December 2023, there were 393 internees in annexes and 564 in SDS/SDI out of a total of 4,342 internees,[4] corresponding to 22% of them in prison compared to 14% at the end of 2018.

The increase of internees in prison is mainly in Flanders (556 at the end of August 2024 compared to 339 in Wallonia and 95 in Brussels) due to an increase in new internment measures (despite a legal strengthening of the criteria), at a rate higher than final releases. In a more limited way, the impact of suspensions and revocations of releases on probation should be taken into account.[5] An ongoing study is aimed at explaining this increase to find solutions and to be able to monitor the factors influencing the number of internees.

(i)                  Concerning the violations of Articles 3 and 5 § 1: unlawful detention

• Law of 5 May 2014 concerning internment (entered into force on 1^st October 2016)

The aims of internment are the protection of society and the optimal social reintegration of the internee. This law redefines its conditions more strictly;[6] improves those of the initial diagnosis; creates the social protection chambers which adopt decisions in line with the care and safety needs of internees; specifies where they can be placed; and provides that the public prosecutor's office can now choose the place to execute a provisional arrest (for more details on this law, see the previous Notes: CM/Notes/1475/H46-8).

• Measures to promote the “care pathway” of internees

Coordinators were appointed in each court of appeal to develop a network of reception and care for internees. Mobile teams, reinforced in 2019, and again due to a call for projects in 2022, are working upstream and downstream of exits from prison. A unit supports initiatives, and a quarterly committee monitors the fluidity of care pathways, the occupancy rate and the lengths of stay in the funded structures. Initiatives aim to involve internees and their relatives, including the hiring of "peer support" in 2022.

• Creation of reception places[7] or offers of support services[8] for internees outside prison

Masterplans III of 2016 and IIIbis of 2024 aim to remove all internees from prison and to offer them adapted care in an appropriate environment. Five forensic psychiatry centres are planned, one for the jurisdiction of each court of appeal: two are full (Ghent and Antwerp – positively evaluated by the CPT during its visit in 2021), two are planned for 2028 (Wavre and Paifve with 250 places each), while the psychiatric centre of Tournai must be reorganized (250 places and 120 places for long-term placements). A high-level security centre for long-term placements is also planned in Flanders (120 places but 180 possible). The care staff of the centre of Tournai and of the two existing forensic psychiatry centres were reinforced in 2023. From now on, the care standard there is 22.25 full-time staff for 30 beds.

The Federal Public Service of Public Health has adopted plans for the care pathway of internees and has created 591 “medium-risk” places. It is following around thirty projects and measures have been adopted since 2016 for specific profiles (288 places in Flanders and 136 elsewhere[9]). Since 2022, the call for projects, mentioned above, has made it possible to open 87 places in the regular care circuit and it is planned to expand outpatient care. In 2024, in view of prison overcrowding (see the Vasilescu case), short and medium-term actions have been drawn up for internees, including the reinforcement of projects and the financing of new ones (37 additional places and reinforcement of the Brussels mobile team).

The federated entities have also taken measures. Flanders has created places for disabled internees. Three care providers support disabled people in prison. Direct funding has existed since 2019 for internees who are ready for a “low-risk” follow-up (11 million euros in 2024). In Brussels, six additional places have been funded since 2023 and there is now an annual financial incentive, within the French Community, which aims to promote the admission of internees, who have been released or are eligible for release on probation, to the external care circuit.

Main challenges: A lack of high-security places (especially in Wallonia) is prolonging the time to carry out transfers (in September 2024, a maximum of three years and 11 months to the centre of Tournai, two years and three months to Paifve and two years and nine months to the forensic psychiatry centres). Furthermore, internees, without residence permits and those in long-term placements, are blocking high-security places, slowing down possibilities of release from prisons. The increase in internments also puts a lot of pressure on the external care circuit (sometimes, long waiting lists).

• Situation of care in prison (annexes and social defence sections – SDS)

The authorities recall that the Court has ruled that detainees suffering from mental disorders can be treated in prison, subject to specific rules and resources. In annexes, there are ordinary detainees with psychiatric problems and internees who are awaiting a final decision (short-term stays in principle). In SDS, there are only internees, who have been placed by the social protection chambers. Prison staff, including multidisciplinary care teams, work in the annexes and SDS, with reinforcement coming from the federal public health authorities and/or the federated entities.

A programme manager is following the prison healthcare reform, relaunched in 2022. All detainees have been integrated into compulsory health insurance for out-of-prison care. Projects to strengthen the mental health services of ten prisons have been launched in 2023 and 2024 (13 psychologists and education specialists, assistance for drug users and intercultural mediation will soon be available in six prisons). In July 2024, projects were launched in Lantin and Dendermonde, including the nomination of a part-time health coordinator.

In 2021, it was decided to strengthen the care teams for annexes and SDS to respond to the judgments of the Court. A standard (in force in the mental health sector) was adopted in 2022 (0.33 full-time staff per internee). It should make it possible to greatly improve the situation of internees in prisons, pending the new forensic psychiatric centres, and will continue beyond their establishment. The standard is being rolled out in SDS (80% of the staff framework fulfilled in Merksplas, 75% in Namur and Ghent, which opened in 2023, 50% in Turnhout and 38% in Haren) and a care concept is being developed. 203.82 full-time staff were working in October 2024 (compared to 69 in 2020) out of a planned framework of 321.5 (compared to 93.55 in 2020). The authorities say that they are focusing on the recruitment of staff (underway in Flanders) in order to anticipate a future influx of internees, but they point to a shortage on the labour market.

• Training and other awareness-raising measures 

An annual budget of €800,000 has been earmarked since 2023 to support internee care networks, notably to train partners and increase the quality of care (possible scientific research, pilot projects). In 2024, meetings took place with the judiciary, probation services and care homes, aimed at speeding up the support of internees eligible for release from prison. The Minister of Justice has also drawn the attention of the Courts and Tribunals’ College to internees in prison, who have not committed any crime. In addition, consultations with psychiatric forensic experts have been aimed at curbing the increase of internees in detention. Since 2022, training for magistrates about internment has been held with visits (with a focus on limited places, long waiting lists and precarious care in annexes and SDS). The training of prison staff addresses the management of mental health problems. In 2023, a training programme which took place over several days for people working in annexes and SDS began. Other projects exist, including training for the new care staff of these places.  

(ii)         Concerning the violations of Article 5 § 4 and Articles 3 and 13 combined: effective remedy

Interim judges have ruled the detention of internees in annexes to be unlawful, due to a lack of places in locations designated by the social protection chambers and ordered the State to take measures to bring it to an end (56 decisions in total as of 7 August 2024, executed in all but 14 cases). In Flanders, other appeals (35 in total as of September 2024) aim at releasing internees from SDS, which had been designated as the location of placement by the social protection chambers. On the basis of the judgment of the Court of Cassation of 27 January 2017,^[10] on 4 April 2023, the interim judge of Turnhout ordered the State to transfer internees to a place suitable to their needs (similar decisions were issued in July 2023, January and May 2024). On 19 April 2023, the Brussels interim judge issued a similar decision, confirmed on 24 June 2024 by the Brussels Court of Appeal, considering that the Turnhout SDS is not an appropriate place and that the reason for not finding a place outside is due to a lack of places. The State was ordered to look for a place in an appropriate residential location, under penalty of fines (decision not executed as of 24 September 2024).

In civil proceedings there is mixed litigation combining requests for compensation and transfers. Since 2012, there have also been more than 500 claims for compensation from internees. Compensation is always granted for non-prescribed periods of stay in prison. On 7 November 2022, the Court of Cassation ruled that it is an excessive procedural burden to require an internee to lodge his claim before the end of his detention. National judges apply this case-law and, in order to decide that a period of detention is prescribed, the internee must have been either released on probation or placed outside prison for more than five years. On 8 July 2024, the Brussels Court of Appeal handed down three judgments, awarding internees €2,500 per year in prison (compared to €1,250 before).   

New communication from three NHRI (DH-DD(2024)1276)

The Federal Institute for the Protection and the Promotion of Human Rights (FIHR), the Central Prison Monitoring Council (CPMC) and UNIA (equal opportunities) denounce the constant increase in internees in prison (1,009 on 23 September 2024). The prospects of reduction of that number seem distant, given the constantly postponed construction of forensic psychiatric centres, whose capacities will in any event be insufficient. The social defence sections (SDS) are in reality often cells in annexes, with no real distinction from the rest of the prison, and in case of their extension they are not always provided with more staff or resources. Some internees are kept in ordinary sections due to a lack of places in the annexes. The framework of care teams underestimates the number of internees or detainees requiring care, and the services provided by psychiatrists are therefore very limited. Prison hostility and difficulties in providing quality care to internees are clear from recent visits to annexes, due in particular to a lack of trained staff, inadequate infrastructure, overcrowding and the application of a disciplinary regime. Long waiting lists and exclusion and refusal criteria, including foreigners without residence permits (10%), are obstacles to internees leaving prison.

According to a study put forward by the three institutions, decisions of internment are often quasi-automatic if a mental disorder has been identified by the psychiatric experts, reducing the importance of the fact that the serious character of the facts and the links between them and the mental disorder need to be legally established in the decisions to intern. Nevertheless, their reports are rarely contested (due to a lack of training for lawyers and magistrates) and the number of experts and the time devoted to reports are insufficient. Furthermore, there is a risk that new sanctions will be confused with the internment, which should have been restricted to people whose mental capacity is destroyed. The effectiveness of the preventive remedy is limited by the increase in the number of internees in prison, the low number of discharges from forensic psychiatric centres and a lack of places in the regular care circuit. Finally, speeding up the transfer of one internee will often slow down the transfer of others.

Analysis by the Secretariat

Individual measures

The authorities should provide the applicant who has been placed in prison again (De Smedt in the case of Smits and others), with the maximum care required by his state of health, pending his transfer to a suitable external care facility (see general measures). The authorities should also keep the Committee informed of the situation of applicants for which a new placement in prison remains possible.

General measures

At its last review in September 2023, in view of the significant increase in the number of internees in prison, the Committee urged the authorities to intensify their efforts to resolve, as soon as possible and definitively, the structural problem. It also urged the authorities to immediately improve the health care of internees in prison so that the standard of supervision of care becomes effective, to study the reasons for this increase and to remedy the situation without delay. The Committee also urged the authorities to speed up the creation of forensic psychiatric centres and to expand the number of places in the regular care circuit in order to ensure the smooth flow of the care pathway for internees. Finally, in the absence of tangible progress by December 2024, it instructed the Secretariat to prepare a draft interim resolution.

·                     Concerning the violations of Articles 3 and 5 § 1: unlawful detention

As described above, it is clear that the authorities have made efforts since the last examination of this group (in particular, a study launched to explain the continuing increase in the number of internees and the recruitment of staff to reinforce the care teams in the annexes and SDS). Despite these measures, it is very worrying that, 12 years after the Court's first judgment (L.B.), the structural problem of internees in prison without sufficient and adapted therapeutic support persists, mainly because of a persistent lack of places outside.

While in the Venken judgment the Court noted a significant reduction in the number of internees in prison (537 at the end of 2019) and encouraged the State to confirm this positive trend to resolve definitively the problem, the latest figures (1,009 on 23 September 2024) are almost the same as from ten years ago (average of 1,088 internees in 2014). Although the authorities are no longer planning to postpone the completion of the forensic psychiatric centres in Wavre and Paifve (290 additional places: 500 minus the 210 from Paifve social defence institution), they will not be sufficient to absorb this growing number, nor will the planned creation, without timeframe, of a long-term placements centre of 120 places in Flanders. The situation is thus even further from the Secretariat's statement in 2018 that the places to be created should, by 2022, provide sufficient reception capacity for the internees in prison and the projected future population of internees.

In view of the steady increase in internees in prison and the clear insufficiency of the measures taken (few recent places created outside prison) and planned to extend the external care circuit, the authorities should rapidly finalise their study of the reasons for the growing recourse to internment. They should adopt without delay all relevant measures to remedy the situation (such as a reinforcement of expertise, awareness-raising and training for magistrates, psychiatric experts and lawyers on internment, and possible legislative amendments). At the same time, the authorities should be urged to speed up the creation of places for internees outside prisons (forensic psychiatric centres, long-term placements centres, psychiatric hospitals and care homes and protected home initiatives) and to reinforce the outpatient care offer to improve the smooth flow of the care pathway for all internees (due to a lack of places, some facilities are saturated and prevent releases from prison).

Significant efforts appear to have been made to improve prison healthcare. In particular, the framework of care teams and the operational staff in SDS and annexes have tripled since 2020. However, they are insufficient to achieve the standard of care, decided by the authorities themselves in 2022 (for example, 38% of staff in Haren and 50% in Turnhout, for around 200 internees). It is also important to note that: the increase in staff in annexes does not only benefit internees; the framework of care staff appears already to be insufficient, given the increase in the number of internees in prison; and as confirmed by the domestic courts and tribunals, prisons are not suitable locations to care for internees. It is therefore crucial that the authorities continue to reinforce and improve care for internees in prisons, pending their transfer to suitable facilities.

·                     Concerning the violations of Article 5 § 4 and of Articles 3 and 13 combined: effective remedy

At its last examination, the Committee noted with interest that some courts and tribunals have eased the procedural burden on internees in relation to prescription, which enables them to obtain compensation for the entire period of continuous violation of Article 5 § 1. The Committee expressed its concern about the effectiveness of the interim remedy, given the increase in the number of internees in prison and delays in the creation of places outside prisons since the Venken and Others judgment, and it invited the authorities to make every effort to resolve the substantive structural problem as quickly as possible, while considering strengthening the control by social protection chambers of the situation of internees in prison.

It is positive that the compensatory remedy now appears to be applied uniformly and in accordance with the Venken and Others judgment. The authorities should be encouraged to keep the Committee informed of the amounts awarded (see new case-law seeming to result from the Brussels Court of Appeal’s judgment of 8 July 2024).

As for appeals before the Social Protection Chambers, although a change had been announced to bridge the period between their decisions and their effective enforcement, with a three-monthly review of internees in the annexes (DH-DD(2021)758), the new action plan says nothing about reinforcing this remedy. It would thus seem appropriate to again encourage the authorities to strengthen this monitoring. As for the interim remedy, its increased use throughout the country, resulting in decisions ordering the transfer of internees to a place suited to their needs, is positive. However, given the continuing increase in internees in prison and the prolonged length of waiting lists,[11] which can make it impossible to execute decisions quickly, it seems even more difficult than when the Committee last examined the issue to conclude to the effectiveness of the remedy. The authorities should therefore be urged to make every effort to resolve the substantive structural problem, as soon as possible.

Conclusion

The Court identified the structural problem in question twelve years ago, and the deadline set in the W.D. pilot-judgment for resolving it, expired six years ago. Despite the undeniable efforts made by the authorities, the constant increase since 2019 in the number of internees in prison, still without sufficient and adapted therapeutic support, does not allow to conclude that “tangible progress” has been made in resolving the structural problem. In line with its previous decisions in this group of cases, the Committee may therefore wish to adopt an interim resolution.

Financing assured: YES