Accused Thieves Lose Challenge to Indefinite Psych Holds

The European Court of Human Rights decision ends Belgium’s 22-case losing streak over its involuntary commitment of people with psychiatric disorders arrested in the country. 

Statue of Lady Justice on top of the Old Recorders House (Oude Griffie) on Burg Square in historic Brudges, Belgium. (Image by S. Hermann & F. Richter from Pixabay via Courthouse News)

STRASBOURG, France (CN) — So long as Belgium considers the individuals too mentally ill to be safely released, Europe’s top rights court ruled Tuesday that it can subject them to indefinite psychiatric detention. 

Belgium-born Jimmy Denis and British national Derek Irvine bought the challenge after courts in Belgium imprisoned them based on their mental health status in 2007 and 2002, respectively, though neither had been convicted of the theft charges that led to their arrests. Both men had a history of mental health problems and were confined to psychiatric units.

Under a 1930 Belgian law, “persons of unsound mind” can be kept in custody if there is a high risk they will commit further crimes. Though Belgium changed the regulations in 2014 — removing theft and attempted theft from the list of offenses that allowed for such imprisonment — those changes have not meant much for Denis and Irvine.

The European Court of Human Rights upheld their detentions Tuesday, saying “the approach taken by the domestic courts in the present case is neither arbitrary nor manifestly unreasonable.” Based in Strasbourg, France, the court was created in 1959 by the European Convention on Human Rights, which protects the civil and political rights of European citizens. 

Custody details on Denis and Irvine are included in the decision. It says Denis was discharged from prison in November 2016 only to be rearrested a month later for violating the conditions of his release. After he was released again the next year, Denis was arrested for another crime in 2018 and again sent to a mental health facility where he remains today. 

Irvine meanwhile was released to Scottish authorities a year after his arrest. Though assigned to a psychiatric hospital there, he “absconded” at some point, according to the ruling, and was “found wandering in Belgium” on Dec. 1, 2010. The court says “it proved impossible” to place Irvine in a Scottish institution after this arrest so he was held in Turnhout prison for many years, awaiting an opening in a psychiatric facility. Irvine has been at the Antwerp forensic psychiatry center under emergency procedures since 2018.

Both men have been awarded damages by Belgian courts for being held for too long in prisons, rather than care facilities, during their detention. 

“In the cases of Mr. Denis and Mr. Irvine, there has never been a discussion of alternative measures, just a plain comparison between the internment and total liberty,” the men’s lawyer, Peter Verpoorten, told the court in a virtual hearing in 2020. 

The Grand Chamber noted in its decision that “Assessment of a detainee’s mental condition and the resulting danger to society was not made solely on the basis of the offence for which he or she had been placed in confinement, but also in the light of a range of risk factors.” 

The decision was not unanimous. Three judges dissented, all disagreeing that the men’s detention didn’t violate their right to liberty and security. “We cannot see how it is possible to defend a situation where it is considered, on the one hand, that compulsory confinement will in future not be justified for persons who commit acts such as those committed by the applicants in this case, but that, at the same time, it is unnecessary to assess whether the confinement of persons detained before the entry into force of the new law is still justified, again in the light of the same considerations which led to the enactment of that law,” said Georgios Sergides and Gilberto Felici in a joint dissent. 

In ruling in 2016, the ECHR found that Belgium’s system of incarcerating criminals with psychiatric problems was “systematically and structurally dysfunctional.” The country had previously lost nearly two dozen other complaints about its treatment of prisoners with mental illness before the court. Tuesday’s case, however, raised separate issues from the ones addressed in previous rulings. 

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