CASE OF BERLAND v. FRANCE
Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano
5. The applicant was born in 1987 and is currently in the specialised hospital centre (CHS) of Sevrey. 6. On 12 September 2007 the applicant, who was 20, went to the workplace of C.G., who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on C.G., who died from a massive haemorrhage, having been wounded in the throat and thorax, and on two other individuals. On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people, and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS. 7. The applicant was examined by two boards of expert psychiatrists who found that, at the material time, he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article 122-1 of the Criminal Code .... 8. On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to the Investigation Division for a ruling as to the applicant’s lack of criminal liability, in accordance with Article 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity (hereafter “the 25 February 2008 Act”, ...). 9. In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply Article 122-1, first paragraph, of the Criminal Code. He ordered the transmission of the case file by the public prosecutor to the Principal Public Prosecutor for the purposes of referral to the Investigation Division. 10. On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant’s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in particular for a public hearing ... 11. In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing. At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively. He indicated that under the above-mentioned Article 706-122 of the Code of Criminal Procedure, the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment, for an indefinite duration, and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time. 12. In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed C.G.” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions. It ordered his compulsory hospitalisation pursuant to Article 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ..., on the grounds that “it transpire[d] from the proceedings that [the applicant’s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital”. The court also prohibited him, for a period of twenty years, from having any contact with the complainants and from possessing or carrying a weapon, those being preventive measures provided for under new Article 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant’s civil liability and on the claims of damages. The Investigation Division had previously ruled on the procedural objections raised by the applicant’s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of Article 7 of the Convention: “... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ... ... contrary to the pleadings and contrary to the rules on preventive detention, the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article L. 3222-1 of the Public Health Code, which provides for hospitalisation arrangements specifically in such contexts, and the Prefect is immediately informed of the decisions. Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health. Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.” 13. The applicant appealed against that judgment on points of law. In his grounds of appeal he argued, relying on Articles 6 § 1 and 7 of the Convention, that the principle of “no punishment without law” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time. He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures, as this would breach the principle of the non-retrospective application of harsher criminal legislation. 14. Before the Court of Cassation, the public prosecutor, in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged, since “legally speaking, a state of criminal insanity related to a loss of discernment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law”. He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts: “as a result of such anticipation only the material element will stand, devoid of its punitive connotation, together with its ‘objective imputation’ to an individual, which would serve as a basis for granting redress to the ‘victims’ and was in itself the focus of the legislative intent”. On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally”. 15. In a judgment of 14 April 2010 the Court of Cassation dismissed the appeal on points of law: “... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of Article 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘quasi-criminal sanctions’, being listed in the person’s criminal record. To dismiss those arguments, the judgment uses the above-mentioned reasoning. As those grounds stand, the judgment does not warrant the alleged complaint in so far as the provisions of Article 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles 706-135 and 706-136 ... ... there is sufficient evidence [against the applicant] to show that he committed the offences of premeditated murder and wounding ...” 16. In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution unescorted. The Prefect’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows: “... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave. Those assessments reached me today. One states as follows: ‘In view of Mr Berland’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation, which seems indispensable’. The other one reads: ‘his current state of health allows the possibility of unescorted leave to be envisaged. We should gradually move towards trial arrangements to consolidate the rehabilitation plans’. Moreover, in accordance with his instructions, issued following the judgment against Mr Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital unescorted. The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against Mr Berland, pursuant to Articles 706-135 to 706-140 of the Code of Criminal Procedure ... In those circumstances, even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave, it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants. Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted, depending on any assessment data that you may wish to transmit to me.”