CASE OF VAN DROOGENBROECK v. BELGIUM
Violation of Art. 5-4;No violation of Art. 5-1;No violation of Art. 4;Just satisfaction reserved
C. Russo
9. The applicant is a Belgian national, born in 1940. He has no fixed occupation. On 29 July 1970, the Bruges criminal court (tribunal correctionnel) sentenced him to two years’ imprisonment for theft, and attempted theft, committed with the aid of skeleton keys. The court also ordered that he be "placed at the Government’s disposal" for ten years, pursuant to section 23 of the "Social Protection" Act of 1 July 1964 (see paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56 of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April 1968 to two years’ imprisonment for aggravated theft and who manifested a persistent tendency to crime. The applicant and the ministère public (public prosecuter’s department) appealed to the Ghent Court of Appeal, which confirmed the first instance decision on 20 October 1970. It found that the placing at the Government’s disposal was justified by the danger to which society and Mr. Van Droogenbroeck himself would be exposed were he to be released on completion of his sentence (door het gevaar dat, na afloop van de straf die tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point of law was dismissed by the Court of Cassation on 19 January 1971. 10. On the completion (on 18 June 1972) of his principal sentence, which he served at St. Giles prison, Brussels, and then at Malines, Mr. Van Droogenbroeck did not remain in detention. It was true, according to the medical officer specialised in psychology (médecin-anthropologue) at Malines prison, that he was incapable of self-criticism and had no sense of responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the Minister of Justice, acting on the advice of the prison governor and following a "policy of securing as far as possible the rehabilitation of released prisoners", agreed to attempt to reintegrate him into society by placing him, as from 1 August 1972, in semi-custodial care; this involved his working as an apprentice in a central-heating installation firm in Brussels and attending intensive vocational training courses in a specialised institution on Fridays and Saturdays. 11. The applicant disappeared, however, on 8 August 1972. Three days later, on the instructions of the procureur général (public prosecuter) attached to the Ghent Court of Appeal, he was placed on the wanted list and, on 3 October 1972, he was arrested, pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft, and detained at Forest prison, Brussels. On 17 November, he was found not guilty by the Brussels criminal court, but on 27 November the Minister of Justice decided to send him to Merksplas prison, in the block reserved for recidivists placed at the Government’s disposal (te doen overbrengen naar de afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was because the Ministry’s individual Cases Department had expressed the opinion, on 27 November, that the applicant had abused the opportunity offered to him, that he was totally untrustworthy and that a further period of detention was indicated (dat (hij) werkelijk misbruik heeft gemaakt van de hem geboden kans, dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is). On the strength of a favourable opinion from the Recidivists Board (see paragraph 22 below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the Minister of Justice decided on 22 June to release him conditionally on 25 July, since the firm mentioned above was prepared to re-engage him as a trainee heating technician. 12. The applicant disappeared again at the beginning of September 1973. He was arrested on 6 November and brought before the Antwerp criminal court on a charge of aggravated theft, where he was sentenced on 16 January 1974 to three months’ imprisonment. On 4 February, on the expiration of this sentence, he was released as the Minister had agreed to make a further attempt at his reintegration into society, but at the end of March the agency responsible for monitoring his rehabilitation lost trace of him. He was arrested on 21 May 1974 and, until 16 January 1975, served a sentence of eight months’ imprisonment for aggravated theft, imposed by the Brussels criminal court on 9 August 1974; thereafter he returned to Merksplas prison pursuant to a detention decision (te interneren) taken by the Minister of Justice on 11 January. He left prison on 11 July 1975: two days previously and on the recommendation of the Recidivists Board, the Minister had agreed to his conditional release (te ontslaan), in the form of one month’s renewable leave, with a view to rehabilitation in France. 13. Mr. Van Droogenbroeck accordingly went to France, accompanied by a member of the Prisoners’ Aid committee, but the rehabilitation plan proved impracticable and he therefore returned to Belgium. After different setbacks in hostels, he was obliged to live alone in Brussels, without work and completely without resources. On 10 September 1975, the Individual Cases Department, citing the risk of recidivism, proposed that "steps be taken to detain" the applicant at Merksplas; the Minister of Justice gave his consent on the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the third time; the authorities placed him on the wanted list, on account of his conduct. After hiding for some months in the Netherlands and finding himself in dire financial straits, he gave himself up on 21 January 1976 to the police attached to the parquet du procureur du Roi (public prosecuter’s office) in Brussels. He was detained at once in Forest prison before being sent back to Merksplas. On 2 February, as he was unwilling to do the work offered to him, he was placed in the cell block rather than in the recidivists block. On 3 March 1976, the applicant appeared at his request before the Recidivists Board, which decided to re-examine his case in September. At its meeting on 8 September, the Board found that he had saved nothing during his detention and that he had no prospects of finding work outside prison. It therefore declined to recommend his release unless and until he had saved 12,000 BF through his prison work. On 23 September, the applicant was transferred from Merksplas to Louvain prison. 14. On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur général attached to the Ghent Court of Appeal an application for release from the effects of the decision placing him at the Government’s disposal. The Court of Appeal refused the application on 13 December: after rejecting the arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5 par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court found that each time the applicant had been released, he had yielded to impulse and committed further offences; it concluded from this that he remained asocial (zodat hij asociaal blijft). On 15 February 1977, his appeal on a point of law was held by the Court of Cassation to be inadmissible on the ground that he was no longer entitled to contest before that Court - as he had attempted to do by pleading the Convention - the validity of the decision complained of, that decision having been final since 19 January 1971. 15. On 13 March 1977, the applicant lodged with the Louvain procureur du Roi a complaint of arbitrary detention and, in the alternative, of abuse of authority (abus de pouvoir). He pointed out that since 28 February the balance on his account had been more than 12,000 BF; in addition, he alleged that the Recidivists Board, not being mentioned in the Act of 1 July 1964, was "unlawful" and he accused the Minister of transforming his sentence into one of "forced labour". On 19 August 1977, the complaint was set aside as requiring no further action. 16. On 4 May 1977, Mr. Van Droogenbroeck appeared again before the above-mentioned Board. Noting that he had by then saved 12,868 BF and had been detained for long enough (lang genoeg), the Board recommended, "without much enthusiasm" (zonder veel enthousiasme), that he be released (te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him one month’s renewable leave, to be preceded by a two month period of semi-custodial care during which he was to be accommodated at night in St. Giles prison (Brussels) but was to work outside the prison during the daytime. However, he disappeared on the day after his first day out and was at once placed on the wanted list for return to the recidivists block at Merksplas. 17. On 22 September 1977, Mr. Van Droogenbroeck was caught in the act of stealing in Bruges and arrested. On 9 December, he was sentenced to three month’s imprisonment by the Bruges criminal court and, on completing that sentence on 21 December, was sent back to Merksplas. The Ministry of Justice had found, on 19 December, that the applicant’s return to detention did not require a fresh Ministrial decision since he had evaded detention on 8 June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn internering, is geen ministeriële beslissing nodig om hem opnieuw te interneren). The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was adjourned until September. On 13 September, the Board pointed out that, on account of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and it therefore proposed that he not be granted renewable leave until he had saved 12,000 BF. On 3 October, the Minister gave instructions to that effect; he also stipulated that the applicant’s release should be subject to a series of condition similar to those previously laid down by the Minister, namely submitting to the "guidance" of the Brussels Social Rehabilitation Office, working regularly, not changing employer or address without that Office’s consent, refraining from excessive consumption of alcohol and not associating with former criminals. It proved impossible to implement this decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached thereto. On 14 March 1979, he appeared once more before the Recidivists Board, which confirmed the advice it had tendered on 13 September 1978. 18. On 16 September 1979, the applicant lodged with the procureur général attached to the Ghent Court of Appeal a second application based on section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application was granted on 18 March 1980: after considering the submissions to the contrary on the part of the ministère public and although the Court rejected, as in 1976, the arguments based on the Convention, it held that there were by then reasons for releasing Mr. Van Droogenbroeck from the effects of the decision placing him at the Government’s disposal. He was set free on the same day, but shortly afterwards was again deprived of his liberty, the Brussels criminal court and the Ghent Court of Appeal having sentenced him on 10 September 1980 and 3 June 1981 to one month’s and to one year’s imprisonment for aggravated theft, though without applying to him the Social Protection Act. 19. The placing of recidivists and habitual offenders at the Government’s disposal was substituted for the placing under special police supervision that had been provided for in the Criminal Code of 8 June 1867; it was introduced by section 24 to 28 of the "Social Protection" Act of 9 April 1930 and is today the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect of Mental Defectives and Habitual Offenders Act of 1 July 1964 ("the 1964 Act"). According to Belgian case-law, being placed at the Government’s disposal is to be classified as a penalty and not as a security measure; this has various consequences in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22 and 23 of the 1964 Act, the placing at the Government’s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time, becomes operative on the expiration of that penalty and applies for a period fixed by the Act, namely twenty years, ten years, or from five to ten years, according to the nature of the case. A person who has committed one indictable offence (crime) after another must be placed at the Government’s disposal (section 22), whereas in other cases - such as the applicant’s - it is a matter for the court’s discretion (section 23): the latter rule applies where a non-indictable offence (délit) has followed an indictable or a non-indictable offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has followed a non-indictable offence and to the case of "anyone who, having committed in the previous fifteen years at least three offences each involving a penalty of imprisonment for a non-indictable offence (emprisonnement correctionnel) of at least six months, is shown to manifest a persistent tendency to crime". In the latter cases, "particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file" and the court concerned must give "specific and precise" reasons for ordering the penalty in question (section 24 and Court of Cassation, 3 January 1962, Pasicrisie 1962, I, pp. 525-526). 20. If a recidivist is sentenced to a further principal penalty of imprisonment, the effects of any prior order placing him at the Government’s disposal are suspended until that sentence has been served. Such was the result, in the present case, of the judgments of 16 January 1974, 9 August 1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the Government’s disposal, the latter penalty to be served after the expiry of the first order, but as regards Mr. Van Droogenbroeck this course was not followed by the Antwerp, Brussels and Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and 1981 (see paragraphs 12, 17 and 18 above). 21. According to the Court of Cassation, the penalty of being placed at the Government’s disposal - which can be the subject of a full appeal or of an appeal to the Court of Cassation on a point of law - and the principal penalty form an "inseparable whole" and the former penalty, like the latter, constitutes a deprivation of liberty (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526; 22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I, p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964 Act, "recidivists and habitual offenders who are at the Government’s disposal shall, if necessary, be detained in an establishment specified by Royal Decree" - in the instant case the establishment being Merksplas, which had been designated for males not suffering from any mental illness (Royal Decree of 8 February 1952). As is indicated by the phrase "if necessary", the Act confers on the Government - here, the Minister of Justice - a wide measure of discretion in deciding how the penalty shall be implemented, the choice lying between detention, semi-custodial care, and remaining at liberty under supervision or on probation. The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention; he may also revoke conditional release at a later date. The Minister of Justice takes various decisions in accordance with a procedure which is laid down, in part, by Ministrial Decrees. Conditional release usually occurs: - whilst the principal penalty is being served, on a report from the "medical officer specialised in psychology" and the governor of the establishment where the convicted person is held (see paragraph 10 above); - during detention, on a recommendation by the Recidivists Board (see paragraph 11, 12 and 16 above and paragraph 22 below). A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 above) is generally taken by the Minister in the light of a report from the officer responsible for the "guidance" of the person concerned, or of an recommendation by the procureur général attached to the Court of Appeal within whose district the placing at the Government’s disposal was ordered. These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions, his means of subsistence, his work, his conduct and the risk of recidivism on his part. If, however, he is in the process of serving a further sentence of imprisonment, revocation is normally based on reports from the "medical officer specialised in psychology" and the governor of the establishment; these reports will contain information on the nature of the offences for which the sentence was imposed, the offender’s criminal record, his personality, his moral character, his family and occupational situation and his future prospects. 22. The Board for Recidivists who have been placed at the Government’s Disposal and are in Detention ("the Recidivists Board") was established by a Ministerial Decree of 12 March 1946 which was modified and supplemented on 20 May 1949 and 11 March 1968. The Board is composed of a judge or retired judge, who acts as chairman, the medical director or retired medical director of the Prison Psychological Service (Service d’anthropologie) and a senior official of the Prison Social Service. A representative of the Ministry of Justice attends meeting of the Board and the Prisoners’ Aid Committees or the Social Rehabilitation Offices may be invited to send a representative - who is entitled to speak and vote (Decree of 20 May 1949) - to those meetings at which the Board is to discuss the position of detainees who have been or are to be placed under their supervision. The Board is convened by its chairman at least once every two months. It is required to supply the Minister of Justice with an opinion - which is not binding - "on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions" which should be attached to their release. Offenders may apply to appear before the Board either at the meeting before the expiry of the first six months of their detention, if it began as soon as they has finished serving their principal sentence, or at the first meeting held after their return to detention, in cases where the Minister has revoked a decision granting conditional release (see paragraph 13 above). They will be heard again at the meeting before the expiry of the first six months of their detention, if it six months, fixed by the Recidivists Board (see paragraph 11, 12, 13, 16 and 17 above). Although the texts are silent on the point, a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains, inter alia, the results of the social enquiry. The Board’s Secretary will communicate to him at once the opinion adopted by the Board at the end of its discussions. If the opinion is favourable, the matter will be referred to the Minister for decision. The Minister may also give directions for release at any time, without consulting the Board in advance. The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released. Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by the Social Rehabilitation Offices or the Prison Social Service. 23. Under section 26 of the 1964 Act, individuals placed at the Government’s disposal pursuant to sections 22 and 23 may apply to the procureur général attached to the Court of Appeal within whose district the decision was rendered to be released "from the effects of the decision". If, as in the present case, the offender has been placed at the Government’s disposal for not more than ten years, such an application "can be made three years after completion of the [principal] sentence" (see paragraph 14 above) and, thereafter, "every three years" (see paragraph 18 above); these periods are increased to five years "in the other cases". The procureur général "shall make such enquiries as he sees fit, add the results to the case-file and lay it, with his submissions, before a criminal chamber of the Court of Appeal; the Chamber shall give a reasoned judgment after hearing the person concerned, who shall have the assistance of a lawyer". 24. The practice followed in implementing the Acts of 1930 and 1964 has developed considerably over the years. Initially, offenders were not released until after a period of detention which varied according to the categories in which they ware placed. Today, on the other hand, where it is the first time that the measure has been ordered and the individual is not very dangerous, the authorities’ general rule is to release him on trial once the principal sentence has been served, subject to detaining him if he commits another offence or fails to observe one of the prescribed conditions and is out of work and without means of subsistence. Moreover, detention for a long period is now exceptional: according to the Government, the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation. 25. According to Articles 62 and 63 of the General Prison Rules (Royal Decree of 21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for a non-indictable offence (peine correctionnelle) and then detained pursuant to section 25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work. 26. The Government maintained that several remedies were available to the applicant: (i) instituting or causing to be instituted a prosecution for arbitrary detention; (ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970; (iii) applying to that Court of Appeal for release from the effects of the measure imposed on him; (iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications); (v) bringing an action based directly on Article 5 par. 4 (art. 5-4) of the Convention. On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth, to paragraph 55 below. 27. As regards the first point, anyone who maintains that he has been unlawfully deprived of his liberty, either by a private individual or by a public official, is entitled under Belgian law either to file a complaint, with or without the joinder of a claim for damages (constitution de partie civile), or to bring the matter before a criminal court by means of a direct summons (Articles 147 and 434 to 436 of the Criminal Code; Articles 63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above). 28. As regards the second point, the Ghent Court of Appeal held, in 1897 and 1914 that disputes between the ministère public and a convicted person regarding the execution of a sentence could be referred to the court which passed it, but these are isolated decisions which have not been confirmed by other judgments. 29. As regards the fourth remedy mentioned above, the Court confines itself for the moment to noting that under Articles 584 and 1039 of the 1967 Judicial Code it falls to the President of the court of first instance to give a ruling, in the capacity of juge des référés - that is to say, on a "provisional" basis, if the matter is urgent, and without prejudice to the "merits" -, if so requested by anyone claiming to be the victim of, for example, an administrative act constituting a "voie de fait" (manifest illegality). This remedy is available "in all matters, except those which are excluded by law from the competence of the courts". The case-law cited by the Government in this connection is analysed at paragraph 54 below.