Belgium: Sex offender awaits human rights ruling over indefinite detention

Tomorrow, Strasbourg judges will announce their decision on a complaint from a convicted sex offender who believes his indefinite detention breaches European human rights law.

The European Court of Human Rights judgement in the case W.D. v. Belgium (application no. 73548/13) will be made known on Tuesday 6 September.

The applicant, W.D., is a Belgian national who was born in 1987 and is detained in a prison psychiatric wing in Merksplas (Belgium). The case concerns a sex offender who suffers from mental disorders and is indefinitely detained in a prison psychiatric wing.

In November 2006, when he was 19 years of age, W.D. was arrested for indecently assaulting a person under the age of sixteen. Pursuant to the Social Defence Act of 9 April 1930, the Malines Regional Court, deliberating in private, decided to confine W.D. to a psychiatric hospital, noting that he lacked criminal responsibility and suffered from a mental disorder.

In July 2007 he was placed in a “social defence” section of Merksplas prison, where he has remained ever since.

Between 2010 and 2015 he was granted escorted leave under the supervision of a team or a member of his family, with a ban on entering into contact with minors or using a telephone or the internet.

Various psychiatric reports noted that he suffered from a predisposition to perversion and paedophilia, that he presented a very high risk of reoffending, that he suffered from autistic spectrum disorders and that he should be placed in an institution of the Flemish Agency for Persons with Disabilities (VAHP).

In October 2015 the Psychosocial Department advised that W.D. should no longer be entitled to prison leave, having noted that he had relapsed and engaged in correspondence with minors.

Throughout his detention the Antwerp Social Defence Board (CDS) decided that W.D. should remain in Merksplas prison. From 2009 onwards his detention in the latter prison was maintained pending his placement in a VAHP institution.

On 6 December 2012 the Higher Social Defence Board (CSDS) dismissed an appeal lodged by W.D. against a CDS decision to prolong his detention in prison, stating that his continued detention was necessitated by his mental state. He then lodged an appeal on points of law, which was dismissed by the Court of Cassation on 30 April 2013. Other appeals lodged by W.D. with the ordinary courts were also dismissed.

In the meantime, the moves by the authorities and by W.D. himself to secure placement in a VAHP-approved “outside accommodation centre” were unsuccessful either because there were no places available or because of the applicant’s psychiatric profile.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights, W.D. complains that he has been imprisoned for more than nine years without any appropriate care for his psychological condition or any realistic prospect of rehabilitation.

Relying on Article 5 § 1 (right to security), he complains of the unlawfulness of his deprivation of liberty and his continued detention. Relying on Article 5 § 4 (right to security), Article 13 (right to an effective remedy) and Article 3 (prohibition of inhuman or degrading treatment), he submits that he had no effective remedy in order to complain of his conditions of detention.

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