8.  The applicant, who belongs to the German-speaking minority in Belgium, was born in 1957. He is detained in the Paifve social-protection facility (établissement de défense sociale, or “EDS”).
9.  In 1997 the applicant was convicted of indecent assault of a minor aged under 16, rape of a minor aged under ten, theft, destruction and damage, and possession of prohibited firearms by the Liège Court of Appeal and the Eupen Criminal Court. The prison terms were due to expire on 20 February 2004.
10.  While in prison the applicant committed other offences, in respect of which fresh proceedings were brought, in particular for threats, harassment and making false accusations against members of the judiciary. In consequence, on 16 June 2003 the Committals Division (chambre du conseil) of the Liège Court of First Instance ordered that he be placed in a psychiatric institution, pursuant to section 7 of the Law of 9 April 1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences (the “Social Protection Act”), applicable at the material time, and on the basis, inter alia, of a neuropsychiatric report by Dr L., dated 15 December 2001, and a report by psychologist H., dated 20 August 2002.
11.  On 1 August 2003 the Indictment Division of the Liège Court of Appeal upheld that decision. The applicant did not appeal on points of law.
12.  On 15 January 2004, based on, among other information, a psychiatric report by Dr V. dated 23 September 2003, the Minister of Justice also ruled that the applicant was to be placed in compulsory confinement, pursuant to section 21 of the Social Protection Act, in continuation of the sentences imposed in 1997.
13.  On 21 January 2004, further to a decision of 16 October 2003 by the Social Protection Board for the Lantin Prison psychiatric wing (commission de défense sociale, or “CDS”), the applicant entered the Paifve EDS, located in the French-speaking region of Belgium.
14.  An expert psychiatric report drawn up by Dr Ri. on 5 September 2005 stated, in particular, as follows:
“... there is no doubt that Mr Rooman requires treatment which focuses initially on his paranoiac psychosis. Here, therapy must be undertaken simultaneously at psychopharmacological and psychotherapeutic level. ... Long-term therapy over several years is required. The psychotherapy must be carried out by therapists specialising in the treatment of chronic psychosis, with, in the present case, support meetings and psycho-educational and pedagogical aspects. It is essential in this context that the therapies are administered in parallel; that is, that the psychotropic drugs help to prepare the patient for the psychotherapy and that, in turn, the psychological sessions enable the patient to respond to the psychotropic drugs.
... The therapy should therefore begin in a secure institution; treatment might then be possible in the closed unit of a long-stay institution, before envisaging treatment in an open unit. Confirmation that [the applicant] has achieved the required level in order to vary the [place of] therapy must be given by a psychiatric expert.
... With regard to practical implementation of the therapy, the language raises a significant problem. The psychopharmacological and psychotherapeutic treatment must take place in German. ...”
15.  On an unspecified date the applicant made an initial application for conditional discharge.
16.  On 27 January 2006 the CDS postponed its examination of the request for conditional discharge until March 2006, holding that it was necessary to identify an institution that could admit the applicant and provide him with therapy in German, the only language that he understood and spoke.
17.  On 9 June 2006 the CDS examined the application. At the hearing, the director of the Paifve EDS acknowledged that the institution was unable to provide the therapeutic care recommended by the experts who had already been consulted, given that no German-speaking doctor, therapist, psychologist, welfare officer or custodial staff member was employed in the institution.
18.  In consequence, the CDS issued the following conclusions:
“It is undisputed that the detainee speaks only German, and that the medical, welfare and prison staff in the institution in which he is detained are unable to provide him with any therapeutic or welfare assistance; that he has been abandoned to his fate without any treatment since his arrival in Paifve (on 21 January 2004), although some individuals have, on a voluntary basis, made considerable efforts to explain to him his situation, which he experiences as an injustice;
In the present case, the two-fold legal aim of the compulsory confinement, namely protection of society and of the patient’s health, can only be achieved if the deprivation of liberty is accompanied by the treatment necessitated by the detainee’s mental health; since this dual condition is not fulfilled, [Mr] Rooman’s detention is unlawful; ...”
19.  The CDS postponed its examination of the application for conditional discharge until a hearing to be held in September 2006, pending the appointment of German-speaking employees to the Paifve EDS.
20.  In accordance with an order by the chairperson of the CDS of 24 September 2006, the applicant was transferred to Verviers Prison so that its German-language psychosocial team could assess his mental health and ascertain whether he posed a danger to the public. On 30 October 2006 the CDS confirmed this order and postponed the case to a later date.
21.  On 26 January 2007 the CDS dismissed the application for conditional discharge. A report of 24 January 2007, drawn up by the German-language psychosocial team in Verviers Prison, indicated that the applicant had a psychotic personality and paranoid character traits (high self-esteem; lack of respect for others, whom he used only for his own purposes; a feeling of omnipotence; lack of self-criticism; use of threatening remarks), and that he was refusing any treatment. Furthermore, the CDS noted that there was no institution in Belgium which could meet the security and language requirements arising from the applicant’s specific profile, and that the only German-language hospital which could be considered was an open hospital, and had thus to be ruled out in view of the applicant’s mental health.
22.  On 14 April 2008 the applicant applied for day release. On 5 June 2008 the CDS noted that it had proved impossible to provide any treatment and that the search for a German-language institution had proved fruitless. Accordingly, it ordered the Eupen remand prison to prepare a plan for conditional discharge, and ordered a new expert report to assess the level of danger posed by the applicant. It adjourned examination of the request sine die.
23.  Having received a new application from the applicant for conditional discharge, the CDS issued a decision on 5 May 2009, finding as follows:
“There has been no progress in Mr Rooman’s situation; progress cannot occur until he is in a setting where he can be understood in his own language, like any citizen of this country. A single member of the prison staff, a nurse [A.W.], is temporarily providing him with social contact, whereas a psychiatrist and/or a psychologist should be made available to him.
For years, the prison authorities have failed to put forward any kind of solution to this problem, of which its services are fully aware. Worse, as those authorities are unable to provide him with the necessary treatment, they seem to have resigned themselves to a role that extends no further than an unfair repressive detention.
The medical reports and [Dr Ro.’s] expert report [of 21 January 2009] indicate that Rooman, who continues to present a danger to society, cannot be discharged without support and preparation in an institutional setting, something that cannot currently be provided in Belgium, but is available abroad.”
24.  In view of those findings, the CDS invited the Eupen remand prison to prepare, together with the applicant, a plan for conditional discharge, and requested that the authorities rapidly take the necessary measures to improve the applicant’s situation.
25.  On 13 October 2009 the CDS found as follows:
“In the years since this file was opened (October 2003), the persons involved in this case have been thwarted by the fact that the individual in compulsory confinement speaks and understands only one language, and that the authorities have no German‑speaking staff available for him, with the exception of one nurse [A.W.] (who is apparently due to retire in the near future);
In September 2005 Doctor [Ri.], expert, wrote that changes to the detainee’s regime ‘are possible only in parallel with successful treatment, assessed by predefined steps. The treatment must begin in a secure establishment, then in a closed institution...’ Given that treatment in Germany is impossible, it was to begin in Paifve with German-speaking psychiatrists and therapists;
Since that time the detainee’s situation has not changed: he converses and leaves the building only with the sole German-speaking member of staff, and a treatment programme has not even been put in place. No satisfactory follow-up has been given to the requests by the [Social Protection] Board for an end to be put to this unlawful situation for Mr Rooman, who is deprived of his freedom in order, on the one hand, to protect society from possible dangerous conduct by him, and on the other, to provide him with the treatment necessary for his reinsertion; ...
In the light of the authorities’ failure, the question now before the Board is whether there exists, outside the social-protection facility, a unit or persons who could provide home-based therapy for Mr Rooman; ...”
26.  In consequence, and pointing out that German was one of the national languages of Belgium and that the applicant was thus entitled to speak, be understood and receive treatment in that language, the CDS asked the Eupen remand prison to search in and around Verviers and Eupen for either a mental health unit, or a doctor or clinic, which could provide home‑based therapy for the applicant in his mother tongue. It reserved its decision on the application for conditional discharge.
27.  On 12 January 2010 the applicant submitted pleadings in support of his application for discharge. He criticised the failure to provide him with therapeutic care and complained about the effect on his health of the absence of any prospect of improvement in his situation. As his main submission, he requested his immediate discharge on the grounds of the illegality of his deprivation of liberty. Alternatively, he asked that the CDS impose an obligation on the relevant authorities to take all necessary measures so that he would receive, in his mother tongue, the treatment required by his mental-health condition.
28.  In an interlocutory decision of 13 January 2010, the CDS noted that the applicant’s situation had not changed and that the reply from the Eupen judicial assistance unit gave no grounds for hoping that he could receive appropriate treatment, in a secure establishment or elsewhere, in the foreseeable future. It considered that it was necessary to attempt one last plea to the Minister of Justice, whose intervention had previously yielded some fruit, even if this had been insufficient to resolve the problem. The CDS accordingly ordered that an “official report” on the applicant’s situation be sent to the Minister of Justice.
29.  On 29 April 2010 the CDS noted that the Minister of Justice had not responded to its submission and that the applicant’s situation had worsened, since he was no longer assisted by the German-speaking nurse A.W., who had left the Paifve EDS. It found as follows:
“It follows from the report [from the psychosocial department] of 30 March 2010 that, except for occasional meetings with a welfare officer “who speaks German”, the detainee has no social contact in his language and that he has had no opportunity for several months to converse and to gain a fresh perspective in the outside world; the doctor and psychologist who signed this report do not seem particularly convinced of progress in the ‘ongoing measures (taken) by the department to enable a German‑psychologist to intervene occasionally to provide care for the German‑speaking patients in the EDS’;
Mr Rooman’s situation is deadlocked: an ill individual, he is detained in a prison medical institution where no one is able to provide the treatment to which he is entitled; the Minister and his departments are turning a deaf ear, with no concern for the despair to which this manifestly unjust attitude may lead;
In spite of the unlawfulness of Mr Rooman’s detention, his health condition means that discharge cannot be envisaged unless it is accompanied by therapy and practical support;
The [Social Protection] Board has no powers, firstly, to restore the detainee’s basic rights, namely, the rights to liberty, health care and respect for his humanity; and secondly, to compel the Minister to put an end to this situation, which his administration has been fully aware of for more than six years.”
30.  The CDS decided, while “remaining open to any proposals”, to leave the applicant’s situation unchanged; in other words, it rejected his application for discharge.
31.  The applicant appealed against that decision to the Higher Social Protection Board (Commission supérieure de défense sociale or “the CSDS”).
32.  In parallel, he made an urgent application to the President of the Liège Court of First Instance, asking that his detention be declared unlawful and requesting his immediate discharge, or, in the alternative, that a decision be issued ordering the Belgian State to provide him with the medical care required by his situation.
33.  By an order of 12 May 2010, the president of the court held that he did not have jurisdiction to hear this application, on the grounds that the CDS was the legally competent body to decide on the applicant’s discharge or his continued compulsory confinement.
34.  On 27 May 2010 the CSDS upheld the decision of 29 April 2010 by which the CDS had held that the applicant was to remain in compulsory confinement. Unlike the CDS, it held that the applicant’s detention was perfectly legal, given that he had been lawfully placed in compulsory confinement and that he did not meet the necessary conditions for definitive or conditional discharge. It noted that, under section 18 of the Social Protection Act, discharge could only be ordered if the detainee’s mental condition had improved sufficiently and if the conditions for his reintegration into society were satisfied. It considered, however, that this was not the situation here. It also found that the mere fact that the applicant spoke only German did not mean that the authorities had not taken all the necessary steps to provide him with the treatment required by his condition.
35.  The applicant appealed on points of law, alleging a violation of Articles 3 and 5 of the Convention.
36.  On 8 September 2010 the Court of Cassation dismissed the appeal on points of law. In response to the argument alleging a violation of Article 5 § 1 of the Convention, it held that legal reasons had been given for the CSDS’s decision and that it had been justified in law. It argued as follows:
“As compulsory confinement is primarily a security measure, the therapeutic action necessitated by such detention is not legally required in order for the deprivation of liberty to be lawful, even if a secondary aim, after that of protecting society, is to provide the detained person with the necessary treatment.
Under section 14(2) of the Act, the social protection boards have the power, rather than the duty, to order, in a decision giving specific reasons, placement in an appropriate institution, corresponding to the relevant security measures and treatment required. It follows that execution of the compulsory confinement measure does not become unlawful solely because it is implemented in one of the institutions created by the government for that purpose, rather than in another institution specifically designated for the treatment it may provide.”
37.  The Court of Cassation declared inadmissible the argument alleging a violation of Article 3 of the Convention, on the grounds that examining it would require a factual verification of the conditions in which the applicant was detained and such an examination fell outside the scope of its jurisdiction. For the remainder, it considered that the CSDS had replied to the applicant’s complaint in stating that the fact that he spoke only German did not mean that the relevant authorities had not taken all the necessary steps to provide him with the required treatment.
38.  On 13 November 2013 the applicant again applied for discharge.
39.  A report by the psychosocial department of the Paifve EDS, dated 13 January 2014, reiterated that the applicant had a poor command of the French language, speaking only a few words of French which were insufficient to enable him to conduct a conversation; in consequence, he had very little contact with the other patients and members of staff. The report also indicated that the applicant had met a German-speaking psychologist on a single occasion, in June 2010; his behaviour had improved, he was less aggressive and intolerant than before, and he had recently been moved from the cell wing to the community wing; in addition, he had never expressed a wish to meet members of the psychosocial team on a regular basis. The report concluded that the applicant should remain in the Paifve EDS, citing among other reasons his “untreated mental health problems”.
40.  On 24 January 2014 the CDS issued its decision. It noted, firstly, the content of the reports by Dr Ri., dated 5 September 2005, and Dr Ro., dated 21 January 2009, finding that it was necessary for the applicant to receive psychopharmacological and psychotherapeutic treatment in a secure establishment, then in a closed institution, before his admission to an open facility could be envisaged. It noted that, since those reports were drawn up, the various attempts to resolve the language problem had not succeeded in securing a significant improvement in the applicant’s health: his rare outings accompanied by a German-speaking member of the prison staff had been abandoned, since this employee was no longer available and had not been replaced; attempts to find a German-language institution, doctor or therapist had met with failure; no follow-up seemed to have been given to the commitment that a minimum number of German-speaking staff were to be recruited, and the applicant had, of his own accord, declined the assistance of the German-speaking welfare officer with whom he had occasionally met. Nonetheless, the CDS rejected the application for conditional discharge, finding that the conditions for discharge, namely an improvement in the applicant’s mental state and guarantees for his social rehabilitation, were not met. With regard to the absence of treatment in German, complained of by the applicant, it held:
“The detainee claims that he is not receiving the appropriate treatment for his mental health condition in German, his mother tongue, without however describing or even referring to the treatment allegedly denied to him, and that he would agree to accept or participate in. The mere fact that he only speaks German does not mean that the Paifve social-protection facility has not taken all the necessary steps to provide him with the treatment his condition requires.
While, as [the applicant] points out in his submissions, it is for the relevant authorities to take all the necessary measures for his health, it is not, however, within the [Social Protection] Board’s powers to discharge a detainee who claims to be the victim of shortcomings on the part of the authorities...
Nor does the Board have jurisdiction to issue orders to the authorities or to third parties, [or] to reprimand them for their actions or shortcomings ...”
41.  On 3 April 2014 the CSDS upheld the CDS’s decision. It held, inter alia, as follows:
“Contrary to what he alleges in his pleadings, the detainee receives all the treatment required by his condition from competent and qualified staff in the Paifve EDS, and his specific medical needs are fully taken into account. In spite of the treatment given, the detainee’s mental condition has not yet improved sufficiently, on account of his paranoid and psychopathic character traits, his lack of self-criticism and his constant demands. The detainee is thus clearly wrong in attributing the lack of improvement in his mental condition to the language issue alone.
The continued compulsory confinement in an EDS suited to his medical condition of an individual who would represent a danger to the public in the event of discharge, when his mental condition has not sufficiently improved and the conditions for his social rehabilitation are not met, is not unlawful and does not amount to a violation of the provisions of the [Convention].”
42.  On 25 June 2014 the Court of Cassation quashed the decision by the CSDS on the grounds that it had not addressed the applicant’s argument that he was not receiving care appropriate to his situation, in view of the fact that he spoke and understood only German and that no German-speaking staff members were available in the facility where he was being held. The case was sent back to the CSDS with a differently constituted panel.
43.  On 22 July 2014 the CSDS issued an interlocutory order, requesting the CDS to appoint a group of German-speaking experts to update the psychiatric report of 21 January 2009. It invited the director of the Paifve EDS institution to take all the necessary measures to ensure that the requisite care was made available to the applicant, by at least providing the services of a German-speaking psychiatrist and psychologist. It ordered that the case be reopened and scheduled a hearing for 17 October 2014.
44.  In a decision of that date, the CSDS took note of the fact that the applicant had been treated by a German-speaking psychologist since 11 July 2014 and by a German-speaking psychiatrist since 16 September 2014. It ordered that a panel of experts be appointed; assisted by a German interpreter, it was to update Dr Ro.’s report of 21 January 2009.
45.  The updated report, prepared by three experts who had each examined the applicant separately, was submitted on 27 March 2015. The experts concluded that the paranoia-like delusional disorder persisted, that the psychotic aspect of the applicant’s personality was also still present, and that his neuropsychological condition was practically identical to what it had been in 2009 when Dr Ro. had drawn up his report.
46.  By a decision of 20 May 2015, the CSDS dismissed the request for final or conditional discharge, considering that the applicant’s state of health had not improved sufficiently and that the conditions for his reintegration into society were not met. It also specified that it had not been established that this lack of improvement in the applicant’s situation was due solely to the fact that he had not had an opportunity to be in contact with German‑speaking individuals, particularly in view of the treatment provided by medical staff since 11 July 2014.
47.  The applicant lodged an appeal on points of law against that decision, which the Court of Cassation dismissed in a judgment of 28 October 2015. The Court of Cassation restated the CSDS’s conclusions and specified that, having regard to the reasons given by it, it was not necessary to examine the applicant’s submissions alleging a violation of Articles 3 and 5 of the Convention.
48.  In the meantime, on 28 March 2014 the applicant had brought proceedings against the Belgian State before the President of the French‑language Brussels Court of First Instance, as the judge responsible for hearing urgent applications in accordance with Article 584 of the Judicial Code. He requested his discharge or, in the alternative, that the authorities be ordered to take the measures required by his state of health.
49.  By an interlocutory order of 4 July 2014, the president of the court asked the director of the Paifve EDS and Dr B. from that EDS’s psychosocial unit to inform him, firstly, about the treatment available in that EDS and, secondly, about the treatment that had in fact been provided to the applicant.
50.  In their respective replies, dated 28 August 2014, the director of the Paifve EDS and Dr B. indicated that the applicant now had access to consultations with a German-speaking psychologist and that the authorities had made contact with a German-speaking psychiatrist who had agreed to meet the applicant. Dr B. stated, in particular:
“Psychiatry is a branch of medicine which deals with mental disorders, and its modus operandi entails, first and foremost, a specific dialogue between a patient and his or her therapist, the doctor. This implies the use of language; it also implies, of course, that there is mutual understanding; it implies that the two sides have access to a common language, enabling them to communicate and allowing the psychiatrist to assess accurately all the nuances of the patient’s condition and its development.
From this perspective, however, we have constantly emphasised that [the applicant] is essentially German-speaking. Admittedly, he occasionally comes out with a few simple words in French, but, clearly, the years spent in Paifve have not persuaded him to learn to use French more fluently so as to communicate more meaningfully with those caring for him. Alternatively, as certain examinations seem to indicate, he is so cognitively disadvantaged that he cannot achieve this.
... One can of course always hope that in [the applicant’s] case, permanent support and appropriate treatment in the German language could improve his personality disorder somewhat, but, to repeat, I am more of the opinion that with this type of paranoid personality disorder, paranoia with anti-social traits, positive progress is unlikely.”
51.  In an order of 10 October 2014, the president of the court noted that, until September 2014, the applicant had had no access to a psychiatrist who could communicate with him in German. He had had access to an external German-speaking psychologist between May and November 2010. The president noted that the consultations with that psychologist had ended, not because the applicant no longer wished to attend them, as alleged by the State in its pleadings, but because of the Belgian State’s late payment of the psychologist’s fees and expenses, and that the consultations had resumed in July 2014. He noted that, until April 2010, the applicant had benefitted from the presence and care of a German-speaking nurse, who had in the meantime left the Paifve EDS, but that since August 2014 the same nurse had been authorised to accompany the applicant on outings. Lastly, he noted that the applicant had met a German-speaking welfare officer, but had declined the latter’s services in February 2014.
52.  With regard to the main request, the president held that he did not have jurisdiction to order the applicant’s discharge, holding that only the social protection bodies had power to do so. Ruling on the subsidiary request, the president noted that the applicant had not had access to the mental-health treatment required by his condition, and considered that, prima facie, there had been a breach of his right of access to health care and that he had sustained inhuman and degrading treatment within the meaning of Article 3 of the Convention. In consequence, he ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary to treat the applicant, subject to a penalty in the event of non-compliance, and to initiate the treatment routinely provided to French-speaking persons in compulsory confinement who suffered from a similar mental illness to the applicant.
53.  No appeal was lodged against that order. According to the applicant’s representative, the Belgian State appointed a German-speaking psychiatrist and psychologist, who visited the applicant several times. However, those visits appear to have stopped towards the end of 2015.
54.  In the meantime, on 2 May 2014 the applicant had filed a negligence claim against the Belgian State on the basis of Article 1382 of the Civil Code.
55.  By a judgment of 9 September 2016, the French-language Brussels Court of First Instance held that the failure to provide the applicant with psychological treatment in his mother tongue between 2010 and 2014 had been negligent. It held, in particular:
“It is undeniable that the psychiatric and psychological treatment which must be provided to [the applicant] must be provided to him in German, the only language in which he is fluent and, moreover, one of the three national languages in Belgium.
However, between 2010 and 2014 [the applicant] received no medico-psychological treatment in his own language.
Whatever the quality – which is, indeed, undisputed – of the care provided to detainees in the Paifve [EDS], it is totally inappropriate for [the applicant’s] mental‑health condition purely and simply on account of the fact that it is not given in German.
In spite of the official and repeated denunciations of this situation by the Social Protection Board to the Belgian State since 2010, the latter has taken no measures to correct it. In addition, it has produced no evidence of the slightest step taken by it to that end.
This failure to act amounts to negligence within the meaning of Article 1382 of the Civil Code.
...
Moreover, and as [the applicant] also submits, Articles 3 and 5 [of the Convention] require the Belgian State to take the necessary measures to provide him with access to the basic care necessitated by his mental health.
...
In the present case, the applicant’s vulnerability on account of the very nature of his psychological disorder and the absence of any real possibility of contact in his language have necessarily exacerbated his feelings of distress and anxiety.
It is immaterial that, in any event, the [applicant’s] state of mental health does not permit his discharge. The mere fact of having been detained for an indefinite period without appropriate treatment amounts in the present case to a violation of Articles 3 and 5 [of the Convention].
Contrary to the submissions of the Belgian State, the fact that [the applicant] is not always receptive to psychological, medical and social therapy does not permit minimisation of the Belgian State’s negligent attitude towards an individual suffering from a mental disorder, and whose discernment is, by assumption, uncertain.
Equally, at the risk of disregarding the lived experience of the person suffering from a mental disorder, [the applicant’s] stable conduct within the institution does not suffice to establish that he received appropriate treatment for his condition.”
56.  Finding that this absence of treatment had caused the applicant mental suffering, the court ordered the State to pay him 75,000 euros (EUR), an amount assessed ex aequo et bono, in compensation for the period from January 2010 to October 2014. It is unclear from the case file on what date this judgment was served on the parties.
57.  On 24 January 2018 the applicant lodged an application with the Brussels Court of Appeal requesting legal aid in order to appeal against the judgment of the French-language Brussels Court of First Instance. By an order of 26 January 2018, the Brussels Court of Appeal granted that request.
58.  For its part, the Belgian State appealed against the same judgment on 19 February 2018, arguing that the applicant’s complaints were inadmissible and/or ill-founded. A preliminary hearing was held before the Brussels Court of Appeal on 22 March 2018.
59.  At the date of adoption of the present judgment those proceedings were still pending.
60.  In their observations to the Grand Chamber, the parties produced documents showing that fresh proceedings had been brought for the applicant’s discharge, under the new Law of 5 May 2014 on compulsory confinement (“the Compulsory Confinement Act”, see paragraphs 91‑97 below). In this context, on 12 January 2017 a team from the psychological and welfare service of the Paifve EDS, which included a psychiatrist, a psychologist and a welfare officer, drew up a multi-disciplinary psychiatric and psycho-social report on the applicant’s situation. It stated that the information set out in its report had been drawn from various psychiatric examinations conducted during the applicant’s period in compulsory confinement, and that in view of the language barrier, it had been impossible to obtain other information or compare the information from previous expert reports with the applicant’s statements at the time the report was being prepared. It then confirmed that the patient spoke only German and that he knew only a few words of French, which were not sufficient to enable him to hold a conversation, with the result that he had limited contact with the other patients and with members of staff. The team which produced the report added that this language barrier had restricted and complicated the clinical observation, and that, in view of this shortcoming in the assessment, it was unable to provide a sufficiently informed psychiatric opinion on the application for discharge. Nonetheless, in spite of this difficulty in providing an objective assessment of the applicant’s dangerousness, the likelihood of his reoffending, and his capacity for autonomy, it considered it possible to state that grey areas still remained. It indicated, in particular, that the applicant continued to display an obsession with vengeance, as highlighted in the 2015 expert report, and that the risk of his harassing the victims could not be ruled out. It therefore gave an unfavourable opinion in respect of the applicant’s application for discharge.
61.  On 5 May 2017 the director of the Paifve EDS prepared a separate report in which she indicated that the applicant continued to require an institutional setting, given his pathology and the fact that he remained dangerous in that he was still likely to commit offences or harass the victims. She considered that, in order for “the conditions for conditional discharge to be satisfied, and given Mr Rooman’s personality, the only safe option was [conditional] discharge to an institution [a structured facility]”. She also expressed the view, in light of the existing situation, that the applicant should not be discharged.
62.  Basing its decision on the arguments contained in these two reports, on 29 May 2017 the public prosecutor at the Liège Post-Sentencing Court (TAP) issued an opinion in favour of maintaining the applicant in compulsory confinement and opposing the request for conditional discharge.
63.  On 28 July 2017 the Social Protection Division (CPS) at the Liège TAP, sitting in a different composition, which now had jurisdiction under the new 2014 Compulsory Confinement Act (see paragraph 97 below) to rule on whether to extend compulsory confinement and, if appropriate, to order the applicant’s discharge, issued an interlocutory decision. It ordered that the proceedings be reopened, so that the parties could submit relevant information on whether the situation which had led the European Court of Human Rights to find a violation of Article 3 in the Chamber judgment of 18 July 2017 persisted. Pending receipt of that information, the CPS adjourned its examination of the case. It also summoned the Director General of Prisons to a hearing fixed for November 2017.
64.  On 16 November 2017 the CPS held a hearing, in private, at the Paifve EDS, at which the applicant was present; he was assisted by his lawyers and an interpreter.
In its judgment, delivered on 27 December 2017, the CPS found as follows:
“... According to the information submitted to the Division, [the applicant] can now contact a German-speaking psychologist (3 visits since August 2017). If he so wishes, he can also request a visit from a German-speaking psychiatrist. He has one outing a month, accompanied by a German-speaking nurse. Contact with German-speaking psychological and welfare assistants has been organised. A German interpreter will be called upon whenever necessary (CAP, disciplinary hearings, expert reports). Clinical consultations have been scheduled in order to assess the treatment plan and to adapt it as necessary (one meeting has already taken place, another is scheduled).
... It is established that [the applicant’s] detention, during those periods when he was not being treated by German-speaking medical staff, was in breach of Article 3 of the [Convention].
It was demonstrated in the hearings on 16 November 2017 that that violation has now ceased, as the Paifve EDS and the prison authorities have done what was necessary to ensure that German-speaking care providers are available, both in terms of his psychological and psychiatric treatment and with regard to welfare assistance and supervised outings. An interpreter is also called upon whenever required. ...
... while accepting [the applicant’s] argument that the failure to provide treatment in his mother tongue broke the link between the compulsory confinement and the illness at its origin, so that the detention became unlawful ..., it should again be noted that the unlawful nature of the detention ended following the measures currently put in place.
[The applicant’s] current detention is justified by his mental health, and the conditions of his detention make it possible to provide him with treatment while at the same time ensuring his safety and that of others.
... there remain obstacles to [the applicant’s] discharge, namely:
- the lack of prospects for social reintegration, given his mental disorder ...
- the risk that offences will be committed ...
- the risk that he will harass the victims, and his attitude towards the victims of the offences which resulted in his compulsory confinement ...”
65.  On those grounds, the CPS dismissed the main request for final discharge and held that it was also inappropriate to grant conditional discharge. With regard to the subsidiary request for treatment in German, it added that this had become devoid of purpose. It ordered an eight-month observation period, at the close of which the director of the Paifve EDS would be required to provide a fresh opinion on the applicant’s situation.
66.  By a judgment of 28 February 2018 the Court of Cassation dismissed an appeal on points of law lodged by the applicant against the CPS’s judgment of 27 December 2017.
67.  In support of the observations submitted in the proceedings before the Grand Chamber, the Government attached a chronological summary of the treatment administered to the applicant since he was placed in compulsory confinement in the Paifve EDS in 2004. They also provided factual clarifications at the public hearing on 6 June 2018.
68.  With regard to psychiatric treatment, the document submitted by the Government indicates that the applicant was treated by various French‑speaking psychiatrists. The frequency of the consultations is not specified. From 2004 to 1 February 2014, a German-speaking nurse assisted the psychiatrists during those meetings by providing interpretation. Between March 2008 and August 2009 the applicant was monitored by a psychiatrist who spoke elementary German. On 20 May 2015 the applicant met with Dr V., a German-speaking psychiatrist. This meeting did not give rise to regular meetings. The psychiatrist noted that the applicant had expressed no particular requests or asked for psychiatric assistance. She had nonetheless agreed to return if necessary. She had reiterated her availability on 23 March 2016, then at the end of 2017, in a telephone conversation with the in-house psychiatrist at the Paifve EDS. At the public hearing before the Court, the Government stated that the applicant, who was deemed to be capable of forming his own views, did not wish to enter into regular contact with the psychiatrist.
69.  With regard to psychological treatment in German, the applicant had attended nine meetings with a psychologist in 2010, and nine other meetings in 2014-2015. Between 18 August 2017 and 12 March 2018, the date on which the Government’s observations were submitted, the applicant had had monthly meetings with this psychologist, the most recent, according to the information provided to the Court at the public hearing on 6 June 2018, being on 20 March and 27 April 2018. For his part, the applicant stated that he had had no further meetings since March, and submitted that the last meeting had taken place in February 2018.
70.  With regard to welfare assistance, the Government stated that since 1 October 2006 the applicant had received welfare assistance from a German-speaker, except for the periods from May to September 2014 (on account of maternity leave), and from 1 April to 1 November 2017 (on account of a change in post). Since November 2017, the German-speaking welfare assistant had returned to her post in the Paifve EDS and continued to meet the applicant several times a month. She had essentially dealt with the applicant’s requests for administrative help, or for practical help in his contacts with the outside world, especially with his lawyer.
71.  With regard to psychiatric nursing care, the document submitted by the Government indicated that, from his arrival at the Paifve EDS, the applicant had been assisted regularly by a German-speaking male nurse. In addition to his somatic nursing skills, this nurse had specialised psychiatric care skills and had been able to spend time with the applicant, mainly to support him and help him deal with his stress. According to the Government, this nurse’s listening skills had enabled him to assess the applicant’s state of mind and report his observations to the psychiatrist. The nurse had been transferred to the prison on 1 February 2014 and retired on 1 December 2016. After that date, he had continued to meet the applicant in order to maintain contact with him and accompany him on outings, the last of these having taken place on 24 April 2017.
72.  Moreover, the applicant was able to see a general practitioner once a month. Since 30 November 2017, an interpreter had been called in to translate at these meetings.
73.  On 25 November 2017 a multidisciplinary meeting of the care team had taken place, in the presence of the applicant and an interpreter. At the public hearing, the Government stated, without submitting any document in support of this assertion, that a coordination meeting of the various actors involved in the applicant’s treatment both inside and outside the Paifve EDS had been held, in the applicant’s presence. At that meeting, the team had, in particular, sought the applicant’s permission for the external German‑speaking psychologist to transmit to the in-house psychosocial team information obtained in her monthly meetings with him, as well as her conclusions regarding developments in his state of health, given that the psychosocial team was responsible for preparing an assessment of the degree of danger posed by him and of the prospects for his rehabilitation. The applicant had refused to consent to this transmission of information.
74.  Lastly, the applicant had been authorised to leave the institution on day-release, accompanied by the nurse. The number of these daytrips had progressively increased from one in 2007 to six in 2017. Since 2015 the applicant had made regular visits to Germany. In 2016 he had resumed contact with his family. It appears from other information in the file that the applicant has a brother with whom he has renewed contact in the past few years.