Aerts v. Belgium

Application No. 25357/94; (1998) 29 EHRR 50; [1998] ECHR 64; 5 BHRC 382; [1998] HRCD 749; (2000) 53 BMLR 79
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Michael Aerts, complained his continued detention in the psychiatric wing of a prison pending his transfer to the Social Protection Centre breached the right to liberty and security of person in article 5(1) of the European Convention on Human Rights (ECHR), the right to fair hearing under article 6(1) of the ECHR, and the prohibition on inhuman or degrading treatment in article 3 of the ECHR.

Aerts, who suffered from severe mental disturbances and had previously attacked his wife with a hammer, was arrested for assault in 1992. A Belgian court ordered his detention. He was detained first in a two-person cell and then in a prison psychiatric ward. Aerts requested leave in order to go back and live with his grandfather, but the Mental Health Board rejected his application. He was later released on probation, but breached his conditions for release, and his detention was re-ordered. In 1994, the European Committee for the Prevention of Torture and Cruel, Inhuman or Degrading Treatment had determined that the facilities at the prison psychiatric ward were overcrowded and inappropriate for many of the detainees held there.

Following an application from Aerts, the court of first instance ruled that his continued detention was unlawful and a trespass to the person. This was overturned by the court of appeal. Aerts attempted to obtain funding from the Legal Aid Board for a lawyer to further appeal to the Court of Cassation (which required that litigants be represented by counsel), but his application was rejected because the Board did not consider the appeal to be well founded. Aerts then applied to the European Commission of Human Rights, who referred the case to the European Court of Human Rights.

The Court found a violation of articles 5(1) and 6(1), but did not find a violation of article 5(4) and 3.

The Court held that the detention of Aerts in a psychiatric wing of a prison rather than a hospital, clinic, or other appropriate institution was a violation of article 5(1)(e) of the ECHR.  It established that while article 5 was concerned with the legality rather that the conditions of detention, detention will be ‘arbitrary’ in violation of article 5(1) if there was not a reasonable relationship between the grounds and the place and conditions of detention. It considered that here, the facilities Aerts was detained in were inappropriate to his condition, and had had little therapeutic benefit. As such, the detention was arbitrary.

However, the Court considered that Aerts had had a sufficient opportunity to challenge his detention and that accordingly, there had been no breach of article 5(4) of the ECHR. Aerts had successfully obtained an urgent hearing and challenged his detention at first instance, and although this challenge was overturned on appeal, other detainees at the prison had been successful at both first instance and appeal.

Nevertheless, the refusal of the Legal Aid Board to fund a lawyer for Aerts’ further appeal breached article 6(1) of the ECHR, because it impaired the very essence of the right to a fair hearing. It was not appropriate for the Legal Aid Board to assess the merits of Aerts’ claim, and refusing to fund counsel denied him the opportunity to have his civil rights determined before a tribunal.

Finally, there was no evidence that the conditions at the prison psychiatric ward met the minimum level of severity required to found a breach of article 3 of the ECHR. There was no evidence that Aerts’ mental condition had deterioriated in detention, or that the condition at the ward had had serious effects on his mental health. Although the Court acknowledged the difficulty of assessing Aerts’ condition and the previous findings by the CPT, it did not consider that the article 3 claims could be proved conclusively.

The Court therefore found in favour of Aerts and awarded damages.

“The reports of 10 and 15 January 1990, which reflect the situation obtaining in 1990 (see paragraphs 23 and 24 above), the CPT’s report (see paragraph 28 above) and the observations on that report made by the BelgianGovernment (see paragraphs 29 and 30 above) show sufficiently clearly that the Lantin psychiatric wing could not be regarded as an institution appropriate for the detention of persons of unsound mind, the latter not receiving either regular medical attention or a therapeutic environment. On 2 August 1993, in response to an application for leave lodged by Mr Aerts, the Mental Health Board expressed the view that the situation was harmful to the applicant, who was not receiving the treatment required by the  condition that had given rise to his detention. Moreover, the Government did not deny that the applicant’s treatment in Lantin had been unsatisfactory from a therapeutic point of view. The proper relationship between the aim of the detention and the conditions in which it took place was therefore deficient.” Para. 49.

“That being so, the applicant, who did not have sufficient means to pay a lawyer, could legitimately apply to the Legal Aid Board with a view to an  appeal on points of law, since in civil cases Belgian law requires representation by counsel before the Court of Cassation. It was not for the Legal Aid Board to assess the proposed appeal’s prospects of success; it was for the Court of Cassation to determine the issue. By refusing the application on the ground that the appeal did not at that time appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aerts’s right to a tribunal. There has accordingly been a breach of Article 6 § 1.” Para. 60.