GRAND CHAMBER
 
 
 
 
 
 
 
 
CASE OF ROOMAN v. BELGIUM
 
(Application no. 18052/11)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
 
 
 
STRASBOURG
 
31 January 2019
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Rooman v. Belgium,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Guido Raimondi, President,
 Angelika Nußberger,
 Linos-Alexandre Sicilianos,
 Ganna Yudkivska,
 Vincent A. De Gaetano,
 Kristina Pardalos,
 Helen Keller,
 Paul Lemmens,
 Ksenija Turković,
 Dmitry Dedov,
 Iulia Antoanella Motoc,
 Branko Lubarda,
 Carlo Ranzoni,
 Georgios A. Serghides,
 Marko Bošnjak,
 Jovan Ilievski,
 Lado Chanturia, judges, 
and Françoise Elens-Passos, Deputy Registrar,
Having deliberated in private on 6 June 2018 and 29 November 2018,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 18052/11) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian national, Mr René Rooman (“the applicant”), on 1 March 2011. 2. The applicant was represented by Mr V. Hissel and Ms B. Versie, lawyers practising in Liège. The Belgian Government (“the Government”) were represented by their Agent, Mrs I. Niedlispacher, of the Federal Justice Department. 3. The applicant alleged, in particular, that as a result of the failure to provide psychiatric and psychological treatment in the facility in which he was detained, his compulsory confinement entailed a violation of Articles 3 and 5 § 1 of the Convention. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). A Chamber of that Section, composed of Robert Spano, President, Ledi Bianku, Işıl Karakaş, Nebojša Vučinić, Paul Lemmens, Valeriu Griţco, Jon Fridrik Kjølbro, judges, and also of Stanley Naismith, Section Registrar, delivered a judgment on 18 July 2017. It unanimously declared the application admissible and held that there had been a violation of Article 3 of the Convention. It held, by six votes to one, that there had been no violation of Article 5 § 1 of the Convention. The partly dissenting opinion of Judge Karakaş was annexed to the judgment. On 16 October 2017 the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. On 11 December 2017 a panel of the Grand Chamber granted that request. 5. The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. During the second deliberations, Kristina Pardalos, whose term of office expired in the course of the proceedings, continued to deal with the case (Article 23 § 3 of the Convention and Rule 23 § 4). In addition, Ksenija Turković and Lado Chanturia, substitute judges, replaced Helena Jäderblom and Tim Eicke, who were unable to take part in the further consideration of the case (Rule 24 § 3). 6. The applicant and the Government both filed further written observations (Rule 59 § 1). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 6 June 2018 (Rule 59 § 3). There appeared before the Court:
(a)  for the Government
Ms Isabelle Niedlispacher, Federal Justice Department, Agent,
Ms Christelle Noiret, Attachée, Directorate for Legal Support to the
 Prison Administration, Adviser;
(b)  for the applicant
Mr Victor Hissel and 
Ms Béatrice Versie, Counsel. The Court heard addresses by Ms Versie and Mr Hissel, and Ms Niedlispacher, and their replies to questions put by the judges, and Ms Noiret’s replies to questions put by the judges. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
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”). A. The applicant’s initial placement in compulsory confinement
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. ...”
B. The first application for conditional discharge and the request for day release, submitted to the CDS
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. C. The proceedings concerning the second application to the CDS for conditional discharge
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. D. The third application to the CDS for discharge
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. E. The proceedings before the Brussels urgent-applications judge
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. F. The claim for damages
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. G. The application for discharge submitted to the Social Protection Division
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. H. Chronological summary of the treatment provided to the applicant, attached to the Government’s observations submitted to the Grand Chamber
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. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The legislative framework on compulsory confinement
1. The Social Protection Act in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences (9 April 1930)
75. The applicant’s initial placement in the Paifve EDS was ordered in application of the Social Protection Act in respect of Mental Defectives, Habitual Offenders and Perpetrators of certain Sexual Offences of 9 April 1930 as amended by the law of 1 July 1964 (“the Social Protection Act”), now repealed and replaced by the Law of 5 May 2014 on compulsory confinement, in force since 1 October 2016 (“the Compulsory Confinement Act”, see paragraphs 91-97 below). When the Compulsory Confinement Act was adopted, transitional provisions were enacted allowing for the system established by the Social Protection Act to be applied until such time as the new legislation entered into force. 76. Under section 7 of the Social Protection Act, the investigating judicial authorities and the trial courts could order the compulsory confinement of individuals who had been charged with a serious crime and were suffering from one of the conditions set out in section 1 of that Act, that is: “either from a mental disorder or from a severe mental disturbance or defect making [them] incapable of controlling [their] actions”. In addition, where an individual convicted of a crime or serious offence was recognised in the course of imprisonment as suffering from a mental disorder or from a severe mental disturbance or defect making them incapable of controlling [their] actions, he or she could be placed in compulsory confinement by a decision of the Minister of Justice, issued upon the advice of a Social Protection Board (Commission de défense sociale or “CDS”). 77. The CDS were set up in order to take charge of compulsory confinement. They were composed of a serving or retired judge, who presided, and also a lawyer and a doctor (section 12 of the Social Protection Act). 78. The CDS decided on the place of compulsory confinement. It was chosen from the institutions designated by the Government for that purpose. However, the CDS could, for therapeutic reasons and by means of a decision giving specific reasons, order the individual to be placed and held in another institution where an appropriate level of security and treatment could be guaranteed (section 14 of the Social Protection Act). 79. In practice, if the CDS decided that the compulsory confinement should take the form of a placement, the detained individual could be placed in a social protection institution, a social protection facility attached to a prison and specifically designated for persons in compulsory confinement, or in an establishment outside the usual system (see paragraphs 106‑114 below). 80. By a judgment of 17 September 2009 (no. 142/2009), the Constitutional Court, in response to a request for a preliminary ruling, ruled on whether the Social Protection Act was compatible with Articles 10 and 11 of the Belgian Constitution taken together with Article 5 § 1 of the Convention, in that it did not provide that the CDS could oblige an “appropriate facility” as referred to in section 14 (2) of the Act to admit an individual in compulsory confinement, which could potentially make it impossible to guarantee that decisions on this individual’s placement in a suitable psychiatric establishment were executed within a reasonable period. It held as follows:
“B.7.3. Where the competent court has held that a detained person must be placed in an appropriate facility, it is for the relevant authorities to ensure that this person can be admitted there (ECHR, Johnson v. the United Kingdom, 24 October 1997; Brand v. the Netherlands, 11 May 2004; Morsink v. the Netherlands, 11 May 2004). Although, when the facility designated by the Social Protection Board cannot admit the detained person, a reasonable balance must be sought between the interests of the authorities and those of the individual concerned, this balance is upset where the individual is left indefinitely in a facility that the competent court has found to be ill‑adapted to his or her rehabilitation. B.7.4. This violation of the right [to liberty and security] does not however arise from the legislative provision about which the [Constitutional] Court has been questioned. It arises from the insufficient number of places available in the facilities in which the measure ordered by the referring court could be executed. B.8. This situation concerns the application of the law. Its sanction is a matter for the tribunals of fact and therefore lies outside the jurisdiction of the [Constitutional] Court, so that the preliminary question must be answered in the negative.”
81. The CDS could, of its own motion or at the request of the Minister of Justice, the public prosecutor, the detainee or the latter’s lawyer, order that the detainee be transferred to another institution. Where an application from the detainee or his lawyer was rejected, they could resubmit it after six months. The CDS could also permit the detainee to be transferred to a semi‑custodial regime, in accordance with conditions and rules that were to be laid down by the Minister of Justice (section 15). 82. Before ruling under the above-mentioned sections 14 and 15, the CDS could request an opinion from a doctor of its choice, from inside or outside the public administration. The detained person could also be examined by a doctor of his or her choice and submit the latter’s opinion. This doctor was entitled to read the detainee’s file. The public prosecutor, the director or doctor of the social protection or appropriate facility, the detainee and his or her lawyer were heard. The file was made available to the detainee’s lawyer for four days. Detained persons were represented by their lawyer if it was considered harmful for them to be present while medical and psychiatric questions concerning their state of health were discussed (section 16 of the Social Protection Act). In an emergency, the chairperson of the CDS or the Minister of Justice could order a detained person’s transfer (section 17 of the Social Protection Act). 83. The CDS monitored the detained individual’s situation and could decide on final or conditional discharge, where his or her mental health had sufficiently improved and the conditions for social re-integration were met. To this end, the CDS could, of its own motion or at the request of the detained person or his or her lawyer, instruct the department responsible for prisons to draw up a brief information report or prepare a social welfare report. An application for discharge could be submitted every six months (section 18 of the Social Protection Act). 84. Where conditional discharge was ordered, the detainee was subject to medical and social supervision, the duration and conditions of which were specified in the order. Where the released detainee’s conduct or mental condition revealed a danger to society, for example in the event of failure to comply with the conditions imposed, he or she could be returned to compulsory confinement in a psychiatric wing on an application by the public prosecutor (section 20 of the Social Protection Act). 85. The CDS’s decisions were open to appeal before the Higher Social Protection Board (Commission supérieure de défense sociale, or “CSDS”) within 15 days of the date of notification. The CSDS was composed of a serving or retired judge from the Court of Cassation or a court of appeal, who chaired the Board, a lawyer and the medical director of the Prison Psychological Service (Service d’anthropologie pénitentiaire) (section 13 of the Social Protection Act). 86. The CSDS gave its decision within one month of receiving an application. The detainee and his or her lawyer were heard, and the above‑mentioned provisions of section 16 (paragraph 82 above) were applicable (section 19bis of the Social Protection Act). 87. In a judgment of 10 December 2013 (P.13.1539.N), the Court of Cassation stated that the social protection bodies were “the national bodies ... capable of providing effective legal assistance to the person in compulsory confinement and to protect him or her against a violation of Article 5 § 1 of the Convention”. It clarified that these entities “ha[d] full discretion to assess whether the institution in which the detainee [had] been placed [was] adapted to his or her mental illness”. 88. In this context, persons placed in compulsory confinement were able to complain about an absence of treatment, criticise their conditions of detention and request a transfer to non-prison facilities. Where an institution refused to accept them, however, neither the CDS nor the CSDS had powers to order that a place suited to the requesting detainee be made available. 89. An appeal on points of law to the Court of Cassation could be made by a detainee’s lawyer against the CSDS’s decisions confirming decisions to dismiss a detainee’s application for discharge or declaring well-founded the public prosecutor’s objection to a discharge order (section 19ter of the Social Protection Act). 90. In contrast, no appeal on points of law could be made against decisions refusing to transfer a detainee to an “appropriate place”, since these were considered to be matters relating to execution of the compulsory confinement order (see, among other judgments, Cass., 2 June 2009, P.09.0586.N and P.09.0735.N). However, in its above-cited judgment of 10 December 2013 (P.13.1539.N), the Court of Cassation held that, since – pursuant to the Social Protection Act – reasons had to be given for the social protection bodies’ decisions, the CSDS had been in breach of its duty to provide reasoning when, in response to an individual in compulsory confinement who complained that he was being held in prison in conditions of detention which were inappropriate for his mental illness, it had merely stated that he was, on the contrary, being held in conditions that were adapted to his mental illness pending placement in an appropriate facility. 2. The Compulsory Confinement Act of 5 May 2014
91. In the context of the execution of leading judgments delivered in a series of cases brought against Belgium concerning the detention of perpetrators of acts classified as crimes or serious offences who suffer from psychiatric disorders and are detained in the psychiatric wings of prisons (see L.B. v. Belgium, no. 22831/08, 2 October 2012; Claes v. Belgium, no. 43418/09, 10 January 2013; Dufoort v. Belgium, no. 43653/09, 10 January 2013; and Swennen v. Belgium, no. 53448/10, 10 January 2013), the Belgian authorities, motivated by a wish to achieve optimal reintegration into society, have taken general measures to improve the situation of detainees. In this context, amendments have been made to the legislative framework on placement in specialised psychiatric establishments. 92. The Compulsory Confinement Act (Law of 5 May 2014), which replaces the Social Protection Act of 9 April 1930, provides for several areas of progress, intended to place emphasis on the care package for individuals in compulsory confinement. It defines with greater precision the concepts used and strengthens the procedural guarantees. As foreseen by a Law of 4 May 2016, it entered into force on 1 October 2016. It defines compulsory confinement as a security measure, intended both to protect society and to ensure that the detained individual receives the treatment required by his or her condition, with a view to re-integration into society. Account being had to public safety and the health condition of the detainee, this individual must be offered the necessary treatment in order to live his or her life in a manner compatible with human dignity. This treatment must enable the detainee to reintegrate into society as successfully as possible and is administered – where this is indicated and practicable – as part of a care path, in order to be adapted to the individual (section 2 of the 2014 Act). 93. As in the previous legal framework, the new Act enables the investigating judicial authorities and the trial courts to order an individual’s compulsory confinement, except in cases of crimes or serious offences committed for political motives or through the medium of the press (section 9(1)). In contrast, it restricts the scope of compulsory confinement, by stipulating that only crimes and serious offences which have or could have resulted in physical harm or psychological injury to another person, may henceforth give rise to a compulsory confinement order (report by the Justice Committee, House of Representatives, Doc 54-1590/006, pp. 36-37). 94. The new Act provides that a psychiatric expert report or forensic psychological report must be drawn up prior to any compulsory confinement measure (section 5(1)). The experts must comply with professional standards. The expert reports must be prepared by a panel or with the assistance of other specialists in behavioural sciences (section 5(2)). The experts are required to submit a detailed report, drawn up on the basis of a standard format (section 5(4)). There must be a possibility to request a report by another expert (section 8(1)). Another new feature in the Law is that the individual concerned by a report may be assisted not only by his or her lawyer, but also by a doctor or psychologist of his or her own choosing (section 7). 95. Compulsory confinement remains the central measure under this system. It must take place in a social protection institution or unit or a forensic psychiatry centre in the case of “high risk” detainees, or in a facility recognised by the relevant authority, run by a private institution, a community, a region or a local authority, for detainees who represent a “low or moderate risk” (section 19, in conjunction with section 3(4)(b), (c) and (d)). 96. An external institution which has signed a cooperation agreement – specifying, in particular, its capacity, the profile of detainees admitted and the procedure to be followed for admittance (section 3 (5)) – cannot refuse to accept a patient (section 19). Case-by-case approval is not required, provided that the criteria in the placement agreement are met. 97. Under the new Law, the sole bodies with responsibility for managing and monitoring compulsory confinement are the social protection divisions (chambre de protection sociale - “the CPS”), which have been set up within the courts responsible for the execution of sentences (section 3(6)). These divisions are composed of a judge (in the chair), a specialist adviser on reintegration into society and a specialist adviser on clinical psychology (Article 78 of the Judicial Code). They decide on the placement and transfer of detainees. They also rule on day-release, short-term leave of absence, limited detention, electronic, surveillance, conditional discharge, early discharge with a view to expulsion or extradition, and, at last instance, final discharge. They have wide discretion, the aim being to draw up an individualised confinement path for the detainee, adapted to his or her mental disorder and risk level, while complying with the rules applicable to the relevant placement facility. The detainee’s final discharge can only occur after a renewable two-year period of conditional discharge, and provided that the mental disorder has improved sufficiently and the detainee shows no further sign that he or she poses a danger to the public (section 66 of the Compulsory Confinement Act of 5 May 2014). 3. The Judicial Code
98. Independently of the specific protection mechanism applied by the bodies responsible for compulsory confinement (see paragraphs 76‑90 and 97 above), the Judicial Code allows anyone to challenge decisions taken in their respect before the ordinary courts. 99. Anyone who considers that he or she has been the victim of a violation of a subjective right is thus entitled to apply to the court of first instance alleging a violation of the law, including of any treaty provision which has direct effect in Belgian law. The judge may order an end to the violation, possibly subject to a penalty for non-compliance, and, as appropriate, award compensation. 100. Pursuant to Article 584 of the Judicial Code, the president of the court of first instance, as the judge responsible for hearing urgent applications, may give a ruling, if the urgency is established, in respect of all matters except those which the law excludes from the jurisdiction of the courts of justice. 101. Under Article 1051 of the Judicial Code, the time-limit for submitting an appeal against a judgment of the first-instance court is one month from the date of service of the judgment or its notification to the parties. 4. The Civil Code
102. The State is subject to the ordinary rules on liability in tort. Article 1382 of the Civil Code of 1807 provides that any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it. Under Article 1383, everyone is liable for the damage they have caused, not only by their own acts, but also by their negligence or carelessness. 103. Furthermore, in a judgment of 26 April 2018 (no. 50/2018), the Constitutional Court held that Article 2251 of the Civil Code, which provides that the statutory limitation period for bringing an action runs in respect of all persons, including individuals placed in compulsory confinement who have not been deprived of legal capacity or placed under guardianship, was not contrary to the provisions of the Constitution on equality and non-discrimination. 5. The Belgian Constitution of 17 February 1994
104. Article 4 of the Constitution provides that Belgium comprises four language regions: the French-language region, the Dutch-language region, the bilingual region of Brussels-Capital and the German-language region. Each region has its own territory and its own official language, except for the region of Brussels-Capital, which has two official languages, French and Dutch. The German-language region is made up of nine communes. It has a population of about 77,000 inhabitants, which represents 0.68% of the Belgian population. B. Facilities for persons in compulsory confinement
105. In the W.D. v. Belgium judgment (no. 73548/13, §§ 56‑69, 6 September 2016), the Court set out the types of facilities available to persons placed in compulsory confinement in Belgium. The description of those facilities is presented and updated in the following paragraphs. 1. High-security psychiatric institutions
106. There are six high-security psychiatric institutions in Belgium. 107. In Wallonia, detainees can be housed in one of three social protection facilities specifically provided by the authorities to accommodate persons placed in compulsory confinement. The Paifve facility, which is subordinate to the Ministry of Justice, can house 208 detainees. Located as it is in a unilingual area, there is no statutory requirement for it to recruit bilingual French/German-speaking members of staff. The two other facilities are run by the Walloon Region and the inter-municipal “Ambroise Paré University Hospital Centre” respectively. They are the “Les Marronniers” secure psychiatric hospital in Tournai, which can house 376 detainees; and the “Chêne aux Haies” psychiatric hospital in Mons, with thirty beds for female detainees. According to the Ministry of Justice, replying to a parliamentary question on 16 October 2017, in November 2017 there were two German-speaking patients in compulsory confinement in this region of Belgium, both of them in Paifve. The first was the applicant, who was unable to communicate in French. The second was considered to understand French sufficiently to be able to receive the treatment he required. 108. In Flanders, since 2009 Merksplas Prison has contained a secure treatment unit, the “De Haven” unit, which can house sixty people, for patients with mild to moderate intellectual disabilities and individuals suffering from an autistic disorder. In addition, two high-security forensic psychiatry centres, subordinate to the Ministries of Justice and of Public Health, were opened in Ghent in 2015 (with a capacity of 264 places), and in Antwerp in 2017 (with a capacity of 182 places). 109. In the context of execution of the above-cited leading judgments (see paragraph 91 above), the Government have indicated that they adopted a “Confinement Masterplan” in 2016, aiming to remove all mentally disturbed offenders from prison (see paragraphs 111-114 below) and to provide them with appropriate care, by creating 860 new places by the year 2022. 620 of those places would be allocated as follows: 250 in a new forensic psychiatric centre in Wavre (Wallonia), 250 in a new forensic psychiatric centre in Paifve (which would replace the existing facility) and 120 in a new “long-stay” high-security facility in Alost (Flanders). 2. Traditional psychiatric institutions
110. There are also traditional psychiatric hospitals, in the form of either subsidised private hospitals or public establishments. Some of them are classified as “medium security” and can admit patients who, because they are a danger to society, may be regarded as having serious behavioural problems and/or as being very aggressive, and hence requiring special security measures. Other institutions are classified as “low security” and cater for patients who are not considered dangerous to society and whose psychiatric disorders are comparable to those of most patients in a general psychiatric hospital. 3. Psychiatric wings of prisons
111. Eleven prisons have psychiatric wings. A distinction must be made between the social protection units and the psychiatric wings. 112. The social protection units, attached to the Merksplas, Turnhout and Bruges Prisons, have been specifically created to accommodate persons in compulsory confinement; they are separated from inmates imprisoned under the ordinary criminal law. These units house individuals requiring medium to long-term treatment. 113. The psychiatric wings, which are attached to the Antwerp, Ghent, Louvain, Forest, Jamioulx, Lantin, Mons and Namur Prisons, accommodate persons who have recently been placed in compulsory confinement pending a decision by the CPS (or, previously, by the CDS) on their placement, or who are awaiting transfer to the placement facility as decided by the CPS (or, previously, the CDS). They also accommodate suspects who have been placed under observation or ordinary prisoners who require psychiatric assistance. 114. In April 2016 there were about 4,230 persons who had been placed in compulsory confinement in Belgium, of whom 807 were imprisoned. In June 2018 the number of persons subject to compulsory confinement orders who were being held in a prison was 531. C. The 2016 annual report by the Paifve Supervisory Board
115. The Paifve Supervisory Board, an entity subordinate to the government department responsible for the supervision of prison facilities, produced a report on the Paifve EDS in November 2016. The relevant passages of the report read as follows:
“It would appear that the prison authorities intend to close down the Paifve facility within a time frame that is, unfortunately, not specified. Paifve must therefore continue to survive at the whim of budgetary decision for a transitional period that could, alas, last for several years. In these conditions, it is to be feared that the Ministry of Justice no longer wishes to invest the minimum necessary to continue to ensure high-standard medical care and quality of life in this institution. The Supervisory Body therefore sounds the alarm: more than ever, it is essential to ensure that Paifve does not suffer the fate of an institution in which no interest is taken, which could then quickly become a facility governed by despair among both patients and staff, with ultimately very harmful potential consequences. Pending a final decision on the closure of the establishment, we recommend that rapid steps be taken to remedy the shortcomings found, in order to guarantee a level of treatment that is qualitatively commensurate with the possibilities that our society must be able to provide. Areas for improvement in Paifve
1. Lack of continuity in the treatment provided
Referring to the opinion of the National Council of the Ordre des médecins (Medical Association) at its meeting of 12 May 2007, it is clear that involuntary psychiatric treatment can only be provided in a medical and nursing context which guarantees adequate professional supervision of patients. To mention only the nursing staff, Paifve – which accommodates 208 patients – employs only 10 nurses (2 of whom are paid by the not-for-profit association ISOSL), and they amount to an equivalent of more or less seven full-time staff. This state of affairs means that there are no nurses on site during the night and thus no qualified staff to provide emergency care outside office hours! There is no duty system outside office hours for psychiatric doctors and general medical practitioners. At night and on public holidays, the five custodial staff members on site have no option but to call the generalist doctor on duty for the district. In most cases, the duty doctor refuses to attend the facility and recourse must be made to the emergency services (le service 100). The Paifve EDS, which is nonetheless considered a treatment facility, is thus in a situation in which continuity of care poses a problem. Involuntary psychiatric treatment in Paifve is not being provided in the conditions laid down by the National Council of the Ordre des médecins. Given that Paifve does not have its own duty team, either for nursing or for medical staff, the facility is exacerbating the situation by failing to require that the custodial staff have first-aid skills, attested to by the relevant certificate. (First-aid training is provided at the Marneffe training centre, but it is limited to a certain number of custodial staff from all prison establishments). One solution would be to ensure that Paifve has its own on-site training team, in line with the spirit of the law governing the provision of first-aid training in private companies. This lack of medical and nursing treatment at certain times has the potential consequence of imposing decisions to administer higher doses of psychotropic drugs than in normal conditions, since safety takes de facto priority over ongoing treatment. Another consequence is the absence of medical staff (doctors) when administering a compulsory injection, an act which is potentially traumatising both for the detainee and for the nursing and custodial staff. The presence of the prescribing doctor can often facilitate better acceptance of involuntary treatment.
... 3. Clear lack of psychiatric doctors [compared] with a traditional psychiatric institution
The public-health norms for a psychiatric hospital stipulate one full-time member of staff (24 h/week) for 60 residents. Paifve, where 208 detainees are cared for, should therefore have 3 full-time staff, or a minimum of 72 hours’ presence of a psychiatrist per week. However, if we add up the current time worked by the psychiatrists, the total of their cumulated working hours is far from this figure. According to one of the two psychiatrists in post, two additional psychiatrists are necessary. The impact of this lack of psychiatric and psychological treatment is all the greater for those patients who are detained for sexual offences. It is regrettable that the Paifve EDS does not have a department specialising in sexual deviance, given that a high proportion of the patients have been placed in compulsory confinement for deviant conduct that is in some cases very serious. This situation results in despair on the part of patients, who feel completely neglected in spite of a desire to recover. Furthermore, care provision by an external service (specialised consultations do exist in Liège: for example, the Sygma not-for-profit association) is made very difficult by several factors, namely the fact that a request for an external consultation must be submitted to the Social Protection Board since, unfortunately, such a consultation is not considered as a medical appointment but as an outing like any other. Other factors also serve to make therapeutic visits difficult, such as the shortage of custodial staff and educators to accompany the detainee.”
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The United Nations Convention on the Rights of Persons with Disabilities (CRPD), adopted by the United Nations General Assembly on 13 December 2006 (A/RES/61/106)
116. This Convention entered into force on 3 May 2008. It was signed and ratified by Belgium on 30 March 2007 and 2 July 2009 respectively. The relevant parts of the Convention provide:
Article 14
Liberty and security of person
“1. States Parties shall ensure that persons with disabilities, on an equal basis with others:
(a)  Enjoy the right to liberty and security of person;
(b)  Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.”
Article 15
Freedom from torture or cruel, inhuman or degrading treatment or punishment
“1. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his or her free consent to medical or scientific experimentation. 2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.”
117. In September 2015 the UN Committee on the Rights of Persons with Disabilities drew up Guidelines on the right to liberty and security of persons with disabilities (A/72/55, Annex), on the basis of its case-law with regard to Article 14 of the CRPD. The relevant parts of these Guidelines read as follows:
“II. The right to liberty and security of persons with disabilities
3. The Committee reaffirms that liberty and security of the person is one of the most precious rights to which everyone is entitled. In particular, all persons with disabilities, and especially persons with intellectual disabilities and psychosocial disabilities are entitled to liberty pursuant to article 14 of the Convention. 4. Article 14 of the Convention is, in essence, a non-discrimination provision. It specifies the scope of the right to liberty and security of the person in relation to persons with disabilities, prohibiting all discrimination based on disability in its exercise. Thereby, article 14 relates directly to the purpose of the Convention, which is to ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect of their inherent dignity. ... III. The absolute prohibition of detention on the basis of impairment
6. There are still practices in which States parties allow for the deprivation of liberty on the grounds of actual or perceived impairment. In this regard the Committee has established that article 14 does not permit any exceptions whereby persons may be detained on the grounds of their actual or perceived impairment. However, legislation of several States parties, including mental health laws, still provide instances in which persons may be detained on the grounds of their actual or perceived impairment, provided there are other reasons for their detention, including that they are deemed dangerous to themselves or others. This practice is incompatible with article 14; it is discriminatory in nature and amounts to arbitrary deprivation of liberty. 7. During the negotiations of the Ad Hoc Committee leading up to the adoption of the Convention there were extensive discussions on the need to include a qualifier, such as “solely” or “exclusively”, in the prohibition of deprivation of liberty due to the existence of an actual or perceived impairment in the draft text of article 14(1)(b). States opposed it, arguing that it could lead to misinterpretation and allow deprivation of liberty on the basis of their actual or perceived impairment in conjunction with other conditions, like danger to self or others. Furthermore, discussions were held on whether to include a provision for periodic review of the deprivation of liberty in the text of draft article 14(2). Civil society also opposed the use of qualifiers and the periodic review approach. Consequently, article 14(1)(b) prohibits the deprivation of liberty on the basis of actual or perceived impairment even if additional factors or criteria are also used to justify the deprivation of liberty. The issue was settled in the seventh meeting of the Ad Hoc Committee. ... 9. Enjoyment of the right to liberty and security of the person is central to the implementation of article 19 on the right to live independently and be included in the community. This Committee has stressed this relationship with article 19. It has expressed its concern about the institutionalization of persons with disabilities and the lack of support services in the community, and it has recommended implementing support services and effective deinstitutionalization strategies in consultation with organizations of persons with disabilities. In addition, it has called for the allocation of more financial resources to ensure sufficient community-based services. IV. Involuntary or non-consensual commitment in mental health institutions
10. Involuntary commitment of persons with disabilities on health care grounds contradicts the absolute ban on deprivation of liberty on the basis of impairments (article 14(1)(b)) and the principle of free and informed consent of the person concerned for health care (article 25). The Committee has repeatedly stated that States parties should repeal provisions which allow for involuntary commitment of persons with disabilities in mental health institutions based on actual or perceived impairments. Involuntary commitment in mental health facilities carries with it the denial of the person’s legal capacity to decide about care, treatment, and admission to a hospital or institution, and therefore violates article 12 in conjunction with article 14.
... VII. Deprivation of liberty on the basis of perceived dangerousness of persons with disabilities, alleged need for care or treatment, or any other reasons
13. Throughout all the reviews of State party reports, the Committee has established that it is contrary to article 14 to allow for the detention of persons with disabilities based on the perceived danger of persons to themselves or to others. The involuntary detention of persons with disabilities based on risk or dangerousness, alleged need of care or treatment or other reasons tied to impairment or health diagnosis is contrary to the right to liberty, and amounts to arbitrary deprivation of liberty. 14. Persons with intellectual or psychosocial impairments are frequently considered dangerous to themselves and others when they do not consent to and/or resist medical or therapeutic treatment. All persons, including those with disabilities, have a duty to do no harm. Legal systems based on the rule of law have criminal and other laws in place to deal with the breach of this obligation. Persons with disabilities are frequently denied equal protection under these laws by being diverted to a separate track of law, including through mental health laws. These laws and procedures commonly have a lower standard when it comes to human rights protection, particularly the right to due process and fair trial, and are incompatible with article 13 in conjunction with article 14 of the Convention. 15. The freedom to make one’s own choices, established as a principle in article 3(a) of the Convention includes the freedom to take risks and make mistakes on an equal basis with others. In its General Comment No. 1, the Committee stated that decisions about medical and psychiatric treatment must be based on the free and informed consent of the person concerned and respect the person’s autonomy, will and preferences [para. 21 and 42]. Deprivation of liberty on the basis of actual or perceived impairment or health conditions in mental health institutions which deprives persons with disabilities of their legal capacity also amounts to a violation of article 12 of the Convention.”
B. Recommendation REC (2004) 10 of the Committee of Ministers to member states concerning the protection of the human rights and dignity of persons with mental disorders and explanatory memorandum (adopted on 22 September 2004)
118. The relevant parts of this Recommendation read as follows:
Article 1 – Object
“1. This Recommendation aims to enhance the protection of the dignity, human rights and fundamental freedoms of persons with mental disorder, in particular those who are subject to involuntary placement or involuntary treatment.
...”
Article 2 – Scope and definitions
“…
3. For the purpose of this recommendation, the term:
…
- ‘personal advocate’ means a person helping to promote the interests of a person with mental disorder and who can provide moral support to that person in situations in which the person feels vulnerable;
- ‘representative’ means a person provided for by law to represent the interests of, and take decisions on behalf of, a person who does not have the capacity to consent; …”. Article 7 – Protection of vulnerable persons with mental disorders
“1. Member states should ensure that there are mechanisms to protect vulnerable persons with mental disorders, in particular those who do not have the capacity to consent or who may not be able to resist infringements of their human rights. ... ”
Article 10 – Health service provision
“Member states should, taking into account available resources, take measures:
i.  to provide a range of services of appropriate quality to meet the mental health needs of persons with mental disorder, taking into account the differing needs of different groups of such persons, and to ensure equitable access to such services; ...”
Article 12 – General principles of treatment for mental disorder
“1. Persons with mental disorder should receive treatment and care provided by adequately qualified staff and based on an appropriate individually prescribed treatment plan. Whenever possible the treatment plan should be prepared in consultation with the person concerned and his or her opinion should be taken into account. The plan should be regularly reviewed and, if necessary, revised. ...”
Article 17 – Criteria for involuntary placement
“1. A person may be subject to involuntary placement only if all the following conditions are met:
i.  the person has a mental disorder;
ii.  the person’s condition represents a significant risk of serious harm to his or her health or to other persons;
iii  the placement includes a therapeutic purpose;
iv.  no less restrictive means of providing appropriate care are available;
v.  the opinion of the person concerned has been taken into consideration. ...”
Article 19 – Principles concerning involuntary treatment
“1. Involuntary treatment should:
i.  address specific clinical signs and symptoms;
ii.  be proportionate to the person’s state of health;
iii.  form part of a written treatment plan;
iv.  be documented;
v.  where appropriate, aim to enable the use of treatment acceptable to the person as soon as possible. 2. In addition to the requirements of Article 12.1 above, the treatment plan should:
i.  whenever possible be prepared in consultation with the person concerned and the person’s personal advocate or representative, if any;
ii.  be reviewed at appropriate intervals and, if necessary, revised, whenever possible in consultation with the person concerned and his or her personal advocate or representative, if any. 3. Member states should ensure that involuntary treatment only takes place in an appropriate environment.”
119. The relevant extracts of the explanatory memorandum to this Recommendation read as follows:
Article 7 – Protection of vulnerable persons with mental disorders
“55. People may be regarded as being vulnerable due to cognitive, situational, institutional, deferential, medical, economic, and social factors or to a combination of those factors:
...
- Persons with situational vulnerability may normally have capacity to make a decision, but are deprived of their ability to exercise their capacity by the relevant situation (for example during an emergency or due to lack of fluency in the language being used to give information and request consent).
... 56. Thus persons with mental disorder may be vulnerable even if they have capacity to consent. However, those who do not have such capacity may be particularly vulnerable. ...”
Article 10 – Health service provision
“69. The first indent of this Article builds on the principle set out in Article 3 of the Convention on Human Rights and Biomedicine, which specifies that ‘Parties, taking into account health needs and available resources, shall take appropriate measures with a view to providing, within their jurisdiction, equitable access to health care of appropriate quality.’
70. The requirement of equitable access also applies to the provision of medicines and other forms of treatment. ... [A]ny treatment should be delivered in accordance with professional obligations and standards. Hence, there should be appropriate provision of services to monitor the effects of treatment. ... 76. A very small minority of persons with mental disorder commit serious criminal offences. For the protection of the community, facilities need to be available to meet the health needs of such persons whilst providing an appropriate degree of security to protect society. However, the principle of least restriction set out in Article 8 is also relevant to this group of people with mental disorder. Therefore, a range of facilities providing high, medium, and low levels of security are necessary in order that such persons can be placed in facilities which are appropriate to their health needs and the need to protect the safety of others according to their progress during their treatment. In some cases, a person who is not involved with the criminal justice system may be assessed as representing a significant risk of serious harm to others. In accordance with indent i. of this Article, facilities with appropriate levels of security to meet the needs of this group should also be available. ...”
Article 12 – General principles of treatment for mental disorder
“89. This Article sets out the general principles of treatment that are applicable to all patients with mental disorder. The term “treatment”, which is defined in Article 2, has a broad scope. Article 19 sets out additional principles applicable to involuntary treatment. ... 90. Paragraph one emphasises the importance of an appropriate individualised treatment plan. When a person has a mild mental disorder that is treated by a primary care physician, that plan may be simple and prepared in discussion between the doctor and the patient. ... 91. When a person is placed in a facility for treatment of his or her mental disorder the treatment plan will be more complex. The treatment plan may also address behaviour arising as a consequence of the patient’s mental disorder. Additional requirements for involuntary treatment plans are provided in Article 19.2. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has highlighted, in the context of involuntary placement, elements that they consider a treatment plan should contain. Such elements are also relevant to voluntary placements; therefore a treatment plan should contain a wide range of therapeutic and rehabilitative activities, including where appropriate:
-  Pharmacotherapy;
-  Occupational therapy;
-  Group therapy;
-  Individual psychotherapy;
-  Rehabilitative activities relevant to daily living, for example concerning personal hygiene, shopping, cooking and use of public services;
-  Art and drama;
-  Music and sports.
... 93. Wherever possible, the treatment plan should be prepared in consultation with the person concerned. The aim is to enable the person to make informed decisions about his or her treatment plan in partnership with the clinical team. ...”
Article 17 – Criteria for involuntary placement
“... 132. The third indent requires that a placement include a therapeutic purpose. It must not be for political, moral, economic or social reasons or for custodial purposes only. If the purpose of a placement is solely custodianship this should not take place in a psychiatric facility. However, the fact that a placement may have additional purposes, such as the protection of others, is not excluded by this indent. 133. Further, a “therapeutic purpose” should not be equated with invasive medical treatment. In a therapeutic situation, the person may be offered a range of measures, such as group therapy or rehabilitation ... that may potentially benefit their condition. However, a person subject to involuntary placement is not compelled to accept such offers. On the other hand, if no therapeutic offers were made to a person that would be evidence of the lack of a therapeutic purpose to a placement. Similarly, lack of therapeutic success should not be equated with lack of therapeutic purpose. For example, if a range of methods of treatment have been tried without success, a therapeutic purpose still exists if the person is receiving therapeutic offers, even if the available treatments may not be able to completely cure the person’s condition. 134. It is therefore good practice that when a person is subject to involuntary placement a treatment plan is established as soon as possible with the person concerned and the person’s personal advocate or representative, if any. ...”
C. The Report of 8 March 2018 on the visit to Belgium by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) from 27 March to 6 April 2017
120. During its seventh periodic visit to Belgium, from 27 March to 6 April 2017, the CPT delegation focused, in particular, on the situation of individuals placed in compulsory confinement in forensic psychiatry centres or in prisons. It carried out a follow-up visit to the Paifve EDS, to which it had paid a full visit in 1997 and a short visit in 2016 against a background of strike action. In its report, the CPT made the following observations:
“EXECUTIVE SUMMARY
...The ... psychiatric structures visited, whether the psychiatric annexes of prisons or the Paifve EDS, suffer from well-known systemic problems: functioning and philosophy of prison-type care, acute shortage of medical and socio-educative staff, and an insufficient number of custodial staff, who have not received specialised training. The delegation was able to observe the almost total absence of activities, whether therapeutic or occupational, in these structures. Patients could thus remain locked up for 22 to 23 hours per day on account of a chronic shortage of custodial staff, accompanying staff, educators, etc. The treatment of patients was very piecemeal, limited to pharmacological treatment and basic care. Highly problematic and unsatisfactory management of psychiatric emergencies was also observed. The situation of those detained in prisons, and in the Paifve EDS, calls for immediate measures. To this end, the CPT recommends that the FPD of Public Health be involved more fully in the provision of treatment.
... C. Care of persons interned in a forensic psychiatry centre or prison
... 104. The law on internment of 5 May 2014 had entered into force a few months prior to the visit, on 1 October 2016. This new legislation introduces significant changes, in particular as regards the nature of the psychiatric assessment of persons subject to an internment measure, the types of offences that can give rise to internment, the procedure for enforcing the measure and the process for reviewing it. Under the law, the former Social Protection Commissions which used to make internment decisions were to be replaced by Social Protection Chambers, which are permanent bodies. The law also establishes the right of internees to receive care and seeks to promote their reintegration. The new legislation is intended to put an end to the use of psychiatric annexes and dedicated sections for internees in prisons, including during the observation phase for assessment purposes. To this end, it provides for the creation of a “secure clinical observation centre established by the Crown”. 105. In order to expand the range of care available to internees in dedicated psychiatric facilities, a specific programme, the Internment Masterplan, had been drawn up and its implementation was now under way. The inauguration of Belgium’s very first forensic psychiatry centre (CPL) in Ghent in 2014 is an important sign of the direction in which the Belgian authorities are moving. A second CPL opened its doors in Antwerp (with 182 beds) a few months after the visit. Likewise, hospital-based provision has expanded, with the creation of new units for long stays (60 places) and additional places (26) for women. At the start of the visit, the delegation was told that it was planned to add a further 160 to 170 hospital beds by the end of 2017. 106. According to the authorities, these efforts should bring the number of internees in prisons down to below 300 in 2018 (compared with around 500 at the time of the 2017 periodic visit and 900 at the time of the previous periodic visit in 2013). This figure is expected to fall further over the next few years as more CPLs open in Wavre and Paifve and as additional hospital beds are created, albeit at a later stage. With the social protection establishment (EDS) in Paifve also due to close (see paragraph 111), the expectation is that, in a few years, no internees will come under the responsibility of the FPD of Justice alone. 107. The CPT welcomes the efforts made by the Belgian authorities in their quest to provide suitable care for persons subject to an internment measure. For, as the CPT has repeatedly stressed, Belgium’s prisons have never really had the resources to enable them to deliver quality care. The CPT wishes to be regularly updated on the implementation of the Internment Masterplan and changes in the number of internees placed in prisons. Pending full implementation of the Masterplan, the CPT recommends that the FPD of Public Health become more involved in the care of persons interned in prisons, whether in the Paifve EDS or in psychiatric annexes and dedicated sections for internees in prisons. It should be possible to arrange this as part of the planned transfer of powers and responsibilities with regard to all health care in prisons... 111. The Paifve EDS, visited for the third time by the CPT, is the only penitentiary structure in Belgium dedicated exclusively to the care of persons subject to internment measures (adult men only). Its capacity, namely 208 places, which had increased significantly after the 1997 visit, had remained unchanged since 2016. The establishment was full at the time of the visit. The patients in the EDS had been placed there by social protection chambers under the jurisdiction of the Brussels, Liège and Mons courts of appeal. They were suffering from psychosis (65%), personality disorders (10%) and intellectual impairments or learning disabilities (25%). The average length of stay in the EDS was seven years. One patient, who had been admitted in 1977, was still there in 2017. Under the Internment Masterplan, the EDS as such is set to close over the next few years. In its place, a new CPL with capacity for 250 patients is to be built on a site adjoining the current facility, which will be converted into a prison. The authorities do not regard the current EDS model as having sufficient merit to be preserved or replicated. In numerous respects, indeed, and despite its special status as a facility for internees, the EDS suffers from many of the operational weaknesses identified in psychiatric annexes in prisons. ...”
THE LAW
I. SCOPE OF THE CASE
 
121. In addition to his complaints under Articles 3 and 5 § 1, the applicant alleged in his submissions to the Grand Chamber that he had had no effective legal remedy, in that the domestic courts had either held that they did not have jurisdiction to rule on his applications for discharge, or had refused to find that his detention was unlawful and had ordered that he remain in compulsory confinement. He considered that this amounted to a breach of Article 5 § 4 of the Convention. 122. It is the Court’s long-standing case-law that the scope of a case referred to the Grand Chamber under Article 43 of the Convention is determined by the Chamber’s decision on admissibility (see, among many other authorities, Garib v. the Netherlands [GC], no. 43494/09, § 100, 6 November 2017, with further references). 123. The Court notes that the complaint under Article 5 § 4 is a new complaint, raised for the first time before the Grand Chamber. It is thus not included in the Chamber’s decision with regard to admissibility. It follows that the Court cannot examine it at this stage. II. WHETHER THE APPLICANT WAS A VICTIM
A. The Chamber judgment
124. Having regard to the favourable outcome obtained by the applicant at first instance in the proceedings on the action for damages brought by him (see paragraph 55 above), the Chamber examined whether the applicant could still claim to be the victim of a possible violation of the Convention. It concluded that he could, for the reasons set out in paragraphs 65 to 70 of its judgment. B. The parties’ submissions
125. Questioned by the Grand Chamber on whether the applicant had victim status, the parties set out their arguments on this point, particularly in the light of the treatment measures adopted after the Chamber judgment of 18 July 2017. 126. The applicant considered, in particular, that the Chamber’s findings remained valid. He added two further elements. Firstly, the efforts made to provide him with treatment were only temporary and amounted to statements of intent by the authorities. The rare periods when it had theoretically been possible to administer the treatment did not change the fact that he had been a victim during the much longer periods when he was effectively denied treatment. Secondly, the Belgian State had lodged an appeal against the Brussels Court of First Instance’s decision of 9 September 2016 awarding him compensation, with the result that that decision could no longer have judicial effect. 127. For their part, the Government stated that it was appropriate to consider that the applicant could no longer claim to be the victim of a violation of Articles 3 and 5 of the Convention. They argued, in particular, that the applicant’s situation had developed favourably, as evidenced by the domestic court decisions delivered subsequent to the Chamber judgment of 18 July 2017. They did not dispute that it had been established by the domestic authorities that the applicant’s conditions of detention during the periods in which he had not been cared for by German-speaking medical staff had been in breach of Article 3 of the Convention; however, they claimed that this violation had ended with the presence, since August 2017, of German-speaking professionals who provided psychological and psychiatric treatment and welfare assistance, and with the intervention of an interpreter on every occasion that this was necessary. They added that although it was not final, the Brussels Court of First Instance’s judgment of 9 September 2016 had awarded compensation to the applicant. As to the allegations under Article 5, even supposing that the Grand Chamber found that the applicant’s detention was unlawful, it should also be considered that this unlawfulness had come to an end following the introduction of the measures in question. C. The Grand Chamber’s assessment
128. The Court reiterates that it falls first to the national authorities to redress any violation of the Convention and that in assessing whether an applicant can claim to be a genuine victim of an alleged violation, account should be taken not only of the formal position at the time when the application was lodged with the Court but of all the circumstances of the case in question, including any developments prior to the date of the examination of the case by the Court (see Tănase v. Moldova [GC], no. 7/08, § 105, ECHR 2010). 129. A decision or measure favourable to the applicant is not, in principle, sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-80, ECHR 2006‑V, and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010). Only where both these conditions have been satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of the application. 130. In the present case, the Court notes firstly that, by an order of 10 October 2014, the president of the French-language Brussels Court of First Instance held that the Belgian State was to appoint a German-speaking psychiatrist and medical auxiliary, subject to a penalty in the event of non‑compliance, and to provide the applicant with the treatment routinely provided to French-speaking detainees suffering from a similar mental disorder (see paragraph 52 above). It further notes that the same court awarded the applicant financial compensation, having noted in its judgment of 9 September 2016 that the failure to provide treatment commensurate to the applicant’s mental condition amounted to negligence. It had added that the mere fact of having been detained for an indeterminate period without appropriate treatment amounted to a violation of Articles 3 and 5 § 1 of the Convention (see paragraphs 55 and 56 above). The finding of a breach of Article 3 was repeated in the CPS’s judgment of 27 December 2017 with regard to the periods prior to August 2017 when no treatment in the German language was available (see paragraph 64 above). 131. The Court therefore considers that in the present case the domestic courts have explicitly recognised that there was a violation of Article 3 in respect of the period before August 2017, and that there was a violation of Article 5 in respect of the period until 9 September 2016. With regard to the remainder of the period in issue, there has been no explicit acknowledgement of a violation of the Convention. 132. As to whether there has been “appropriate” and “sufficient” redress, the Court notes that it is true that, following communication of the application and then the Chamber judgment, the national courts adopted decisions favourable to the applicant, by ordering that German-speaking professionals be made available and by awarding him, at first instance, financial compensation. However, the Court cannot ignore the fact that this availability took tangible form for only a few months in 2010, then in 2014‑2015, and at the end of 2017-beginning of 2018, nor that the situation giving rise to the application dates back to the beginning of the applicant’s compulsory confinement and had been noted by the CDS as early as 2006 (see, mutatis mutandis, Y.Y. v. Turkey, no. 14793/08, §§ 52-55, ECHR 2015 (extracts)). In addition, the financial compensation awarded covers only the period from January 2010 to October 2014. It cannot therefore be considered as complete, especially since the first-instance judgment of 9 September 2016 is not final, an appeal has been lodged against it, and the proceedings were still pending before the Brussels Court of Appeal on the date of adoption of the present judgment (see paragraphs 58-59 above). 133. In consequence, the Court concludes that the applicant has not lost his victim status in respect of the alleged violations of Articles 3 and 5, within the meaning of Article 34 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
134. The applicant complained that his compulsory confinement without psychological and psychiatric treatment in the social protection facility in which he had been placed, and the total lack of any prospects of improvement in his situation on account of this absence of treatment, amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention, which reads:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The Chamber judgment
135. In its judgment, the Chamber reasoned as follows (paragraphs 91‑93):
“91.  ... taking into account the fact that German is one of the three official languages in Belgium, the Court finds that the national authorities did not provide adequate treatment for the applicant’s health condition. The fact that he was continuously detained in the Paifve EDS for thirteen years without appropriate medical support or any realistic prospect of change thus subjected him to particularly acute hardship, causing him distress of an intensity exceeding the unavoidable level of suffering inherent in detention. 92. Whatever obstacles the applicant may have created by his own conduct – as pointed out by the Government – the Court considers that this did not dispense the State from fulfilling its obligations towards him. 93. In those circumstances, and as the president of the French-language Brussels Court of First Instance and that court itself also noted in the order of 10 October 2014 and the judgment of 9 September 2016 respectively ..., the Court concludes that the applicant was subjected to degrading treatment on account of his continued detention ... in the period from his admission to the Paifve EDS on 21 January 2004 until now, with the exception of two periods when he had access to a German-speaking psychologist, from May to November 2010 and from July 2014 to the end of 2015.”
B. The parties’ submissions
1. The applicant
136. Before the Grand Chamber, the applicant alleged that there was nothing to justify departing from the Chamber’s assessment that he had been subjected to degrading treatment. He added that the authorities’ failure to provide him with adequate therapeutic care for his mental health concerned the entirety of his period in compulsory confinement and was still continuing on the day of the hearing before the Court. He also submitted that the treatment offered to him had been ineffective even during the period in which he had had access to German-speaking staff, that is, from May to November 2010, from July 2014 to the end of 2015, and following the Chamber judgment. Lastly, he claimed that the therapeutic measures envisaged for him after 18 July 2017 were merely a statement of intent by the authorities and had not become a tangible reality. 137. The applicant did not complain that the Paifve facility as such was unsuited to his mental health condition and his profile. He alleged that he, as an individual, did not receive any treatment on the grounds that the institution in which he was detained, located as it was in the French‑speaking region of Belgium, did not employ any medical personnel who spoke German, one of the official languages in Belgium and the only language in which he could communicate with ease. He considered that, as a result, and in the absence of any prospect of an improvement in his situation, his mental health had deteriorated. In his view, the measures taken for his care after August 2017 amounted only to expressions of intent and were not therefore effective (see paragraphs 126 and 136 above). 2. The Government
138. The Government did not dispute the lack of German-speaking medical personnel within the Paifve facility, nor the difficulty in providing therapeutic support for the applicant’s mental-health problems. However, they submitted that there was no causal link between these two elements, and that the difficulties in treating the applicant were due to the form of illness from which he suffered and his lack of cooperation with the care team. Before the Grand Chamber, they argued that, since his admission to the Paifve EDS, the applicant had received treatment corresponding to his needs and adapted to his condition. Moreover, he had not been deprived of all form of communication, since he had regular meetings with a German‑speaking nurse and welfare officer. Relying on the findings of the CSDS and the Court of Cassation (see paragraphs 34-37 above), they argued that the language problem on no account meant that the necessary treatment had not been administered. In this connection, they emphasised that the CDS itself, in its decision of 24 January 2014, had reached the same conclusion. In fact, the applicant refused to collaborate with the care team. Moreover, he had failed to indicate what treatment had not been offered or administered to him. The applicant had not made any request for psychological care, complained to his doctors or requested psychotropic medication. It was apparent, especially from the psychiatric reports, that there was no causal link between the lack of German-speaking staff in the Paifve EDS and the fact that there had been no progress in the applicant’s mental health. 139. The Government added that following the Chamber judgment, that is, since August 2017, fresh efforts had been made to provide the applicant with individualised medical treatment in German. 140. Furthermore, the applicant had adduced no evidence of deterioration in his health. On the contrary, his condition was very stable. C. The Grand Chamber’s assessment
1. Recapitulation of the relevant principles
141. As the Court has repeatedly stated, Article 3 of the Convention enshrines one of the most fundamental values of democratic society (see Bouyid v. Belgium [GC], no 23380/09, § 81, ECHR 2015). It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour. In order for treatment to fall within the scope of that provision it must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. Treatment is considered to be “degrading” when it arouses in the victim feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance, or when it is such as to drive the victim to act against his or her will or conscience. Although the question whether the purpose of the treatment is to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3 (see Stanev v. Bulgaria [GC], no. 36760/06, §§ 201-03, ECHR 2012, with further references). 142. Measures depriving persons of their liberty inevitably involve an element of suffering and humiliation. 143. That being stated, Article 3 requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, that the manner of their detention does not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in such a measure and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance (see Stanev, cited above, § 204). The Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Enache v. Romania, no. 10662/06, § 49, 1 April 2014; M.C. v. Poland, no. 23692/09, § 88, 3 March 2015; and A.Ş. v. Turkey, no. 58271/10, § 66, 13 September 2016). 144. The Convention does not contain any provision relating specifically to the situation of persons deprived of their liberty, let alone where they are ill, but it cannot be ruled out that the detention of a person who is ill may raise issues under Article 3 (see Matencio v. France, no. 58749/00, § 76, 15 January 2004). In particular, the Court has held that the suffering which flows from naturally occurring illness, whether physical or mental, may in itself be covered by Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible (see, in particular, Hüseyin Yıldırım v. Turkey, no. 2778/02, § 73, 3 May 2007, and Gülay Çetin v. Turkey, no. 44084/10, § 101, 5 March 2013). Hence, the detention of a person who is ill in inappropriate physical and medical conditions may in principle amount to treatment contrary to Article 3 (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; Rivière v. France, no. 33834/03, § 74, 11 July 2006; and Claes, cited above, §§ 94‑97). 145. In determining whether the detention of an ill person is compatible with Article 3 of the Convention, the Court takes into consideration the individual’s health and the effect of the manner of execution of his or her detention on it (see, among other authorities, Matencio, cited above, §§ 76‑77, and Gülay Çetin, cited above, §§ 102 and 105). It has held that the conditions of detention must under no circumstances arouse in the person  deprived of his liberty feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance (see Selmouni v. France [GC], no. 25803/94, § 99, ECHR 1999‑V). On this point, it has recognised that detainees with mental disorders are more vulnerable than ordinary detainees, and that certain requirements of prison life pose a greater risk that their health will suffer, exacerbating the risk that they suffer from a feeling of inferiority, and are necessarily a source of stress and anxiety. It considers that such a situation calls for an increased vigilance in reviewing whether the Convention has been complied with (see Sławomir Musiał v. Poland, no. 28300/06, § 96, 20 January 2009; see also Claes, cited above, § 101). In addition to their vulnerability, the assessment of the situation of these particular individuals has to take into consideration, in certain cases, the vulnerability of those persons and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment (see, for example, Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244; Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998-V; and Murray v. the Netherlands [GC], no. 10511/10, § 106, 26 April 2016). 146. The Court also takes account of the adequacy of the medical assistance and care provided in detention (see Stanev, cited above, § 204; Rivière, cited above, § 63; and Sławomir Musiał, cited above, §§ 85‑88). A lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3 (see Naoumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Murray, cited above, § 105). In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed should also be provided (see Claes, cited above, §§ 94-97, and Murray, cited above, § 106), by qualified staff (see Keenan v. the United Kingdom, no. 27229/95, §§ 115‑16, ECHR 2001‑III, and Gülay Çetin, cited above, § 112). 147. In this connection, the “adequacy” of medical assistance remains the most difficult element to determine. The Court reiterates that the mere fact that a detainee has been seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities must also ensure that a comprehensive record is kept concerning the detainee’s state of health and his or her treatment while in detention, that diagnosis and care are prompt and accurate, and that where necessitated by the nature of a medical condition supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at adequately treating the detainee’s health problems or preventing their aggravation, rather than addressing them on a symptomatic basis. The authorities must also show that the necessary conditions were created for the prescribed treatment to be actually followed through. Furthermore, medical treatment provided within prison facilities must be appropriate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, with further references). 148. Where the treatment cannot be provided in the place of detention, it must be possible to transfer the detainee to hospital or to a specialised unit (see Raffray Taddei v. France, no. 36435/07, §§ 58-59, 21 December 2010; see also, conversely, Kudła, cited above, §§ 82-100, and Cocaign v. France, no. 32010/07, 3 November 2011). 2. Application of these principles to the present case
149. The Court observes, firstly, that the existence of the mental-health problems at the origin of the applicant’s compulsory confinement has not been disputed. He was placed in compulsory confinement on the basis of several medical reports certifying that he had a narcissistic and paranoid personality and that he suffered from a severe mental disorder making him incapable of controlling his actions. It is for this reason that the applicant has been detained on a continuous basis in the Paifve EDS since 21 January 2004. 150. Further, in contrast to other applicants who raised similar complaints in previous cases against Belgium (see, for example, Claes, cited above, and Lankester v. Belgium, no. 22283/10, 9 January 2014), the applicant does not complain that the Paifve facility is inappropriate for persons placed in compulsory confinement, but alleges that, as a result of a language problem, he was not receiving the treatment that ought to have been provided to him (see paragraph 137 above).
151.

Outcome for Article 5: violation