How does a mentally ill get out of prison?

In 2016, the European Court of Human Rights (ECtHR) condemned our country in a so-called pilot arrest for a structural violation of human rights on the part of mentally ill interned who were deprived of their liberty in the psychiatric annexes of the prison.

Belgium was given two years to decisively change the situation.

The most recent report of the Anti-Torture Committee (CPT) showed that the recently established Forensic Psychiatric Centers (FPC) in Ghent and Antwerp[1] provided adequate care and support, but it was again established that the situation in the prisons was substandard.

Partly in light of this, the ECtHR again pronounced a conviction against the Belgian State in September 2021 (Judgment Venken et al., link).

The ECtHR merged five files.

In short, the judgment comes down to this:

  1. The detention of internees in prison continues to be a violation of art. 3 ECHR and of art. 5 ECHR[2].
  2. The ECtHR assumes that the compensation paid by the Belgian State to the applicants for this (amicably or following proceedings before the Court of First Instance) amounting to EUR 1,250 per year of prison detention in the past is sufficient if acknowledgment of this violation[3].
  3. The ECtHR has ruled that the possibilities offered by the Internment Act to apprehend the KBM (via the ordinary procedure and/or the emergency procedure) in order to prevent and/or bring this violation to an end are not effective legal remedies in themselves. After all, according to the ECtHR, an internee is wrongly expected to provide residential or ambulatory rehabilitation himself (while this is the duty of the Belgian State).
  4. However, the ECtHR has ruled that the option offered by the Internment Act in combination with the option for an internee to initiate summary proceedings (in accordance with Article 584 Judicial Code) does offer an effective legal remedy. The ECtHR refers in this regard to the possibility that an internee can ask the court for interim relief to convict the Belgian State for a violation of its obligation to transfer an internee within a short period of time to an adapted treatment center, and to oblige the Belgian State to to provide for such a transfer subject to a penalty payment.

The risk that the Belgian State will have to pay a possible compensation of EUR 1,250 per year for inhumane detention (or EUR 3.42 per day) is obviously not a serious means of pressure. This is also demonstrated by the numerous convictions that internees have received in this regard, after having first had to start legal proceedings.

It is regrettable to note that a mentally ill internee is obliged to conduct all these (expensive) procedures in order to induce the Belgian State to fulfill its obvious human rights obligations.


[1] After a decision of the Chamber of Protection of Society (hereinafter KBM), internees are admitted to these treatment centers who have a high need for security. The entire treatment of patients within both centers is aimed at reducing risk factors and reducing the risk of recurrence. The ultimate goal of treatment is that patients return to society in a safe and responsible manner, or to a less secure environment.

[2] art. 3 ECHR: prohibition of inhumane treatment / art. 5 § 1 ECHR: prohibition of an unlawful deprivation of liberty.

[3] Two of the five applicants were therefore rejected for their claim based on a violation of art. 3 and 5 ECHR: after all, according to the ECtHR, they were sufficiently compensated for the entire period that they stayed in prison. The other three applicants received additional compensation from the ECtHR because the national court wrongly refused to pay compensation for the time-barred period of detention. However, going into this in more detail goes beyond the scope of this article.

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