Print EUROPEAN COURT OF HUMAN RIGHTS
Van Droogenbroeck v. Belgium
Application no. 7906/77
24 June 1982
(Excerpts)
AS TO THE FACTS
I. The particular circumstances of the case
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 manisfested 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 accomodated 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.
AS TO THE LAW
III. THE ALLEGED VIOLATION OF ARTICLE 4 (art. 4)
57. Mr. Van Droogenbroeck also relied on Article 4 (art. 4), which reads:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article (art. 4) the term "forced or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 (art. 5) of [the] Convention or during conditional release from such detention; ..."
58. The applicant's first allegation was that by being placed at the Government's disposal he was held in "servitude", contrary to paragraph 1, in that he was subjected "to the whims of the administration".
The situation complained of did not violate Article 5 par. 1 (art. 5-1) (see paragraph 42 above). Accordingly, it could have been regarded as servitude only if it involved a "particularly serious" form of "denial of freedom" (see paragraphs 79-80 of the Commission's report), which was not so in the present case.
59. Mr. Van Droogenbroeck further complained that, contrary to paragraph 2 of Article 4 (art. 4-2), he was "forced" to work in order to save 12,000 BF. According to the Government, he was simply "invited" to work.
The Court considers that it may leave this question of fact open. In practice, once release is conditional on the possession of savings from pay for work done in prison (see paragraphs 13, 16 and 17 above), one is not far away from an obligation in the strict sense of the term.
However, it does not follow that the complaint is well-founded, for failure to observe Article 5 par. 4 (art. 5-4) (see paragraph 56 above) does not automatically mean that there has been failure to observe Article 4 (art. 4): the latter Article authorises, in paragraph 3 (a) (art. 4-3-a), work required to be done in the ordinary course of detention which has been imposed, as was here the case, in a manner that does not infringe paragraph 1 of Article 5 (art. 5-1). Moreover, the work which Mr. Van Droogenbroeck was asked to do did not go beyond what is "ordinary" in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe (see paragraph 25 above and, mutatis mutandis, the above-mentioned De Wilde, Oms and Versyp judgment, Series A no. 12, pp. 44-45, par. 89-90).
60. Accordingly, the Belgian authorities did not fail to observe the requirements of Article 4 (art. 4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
3. Holds that there has not been a violation of Article 4 (art. 4);