The European Court of Human Rights (ECtHR) held last week that Belgium violated the rights of Rene Rooman – a prisoner with mental health problems who only speaks German – because the State failed to provide access to a psychologist who could also speak German. See ECtHR, Rooman v. Belgium, no. 18052/11, ECHR 2017, Judgment of 18 July 2017 (in French). Following a criminal conviction in 1997, Rooman, a Belgian and German national, was put in detention and later placed in a psychiatric institution in Paifve. [ECtHR: Press Release] Rooman’s application before the ECtHR alleged violations of the prohibition of inhuman or degrading treatment and the right to liberty and security enshrined in articles 3 and 5 of the European Convention on Human Rights (European Convention), respectively. [ECtHR: Press Release]
The ECtHR took into account prior efforts made by mental health bodies in the Paifve institution, but found that the national authorities’ failure to provide him with a psychologist who could speak German, one of three official languages in Belgium, was a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention because it caused Rooman distress that exceeded the unavoidable level of suffering that is inherent in detention. [ECtHR: Press Release] The ECtHR also considered whether there had been a violation of Article 5 (the right to liberty) but did not find a violation because Rooman was held in a facility appropriate for a person with a mental health disability. [ECtHR: Press Release] The European Court has previously held that when a State detains someone with a mental health disability and does not provide adequate medical care to the detriment of the detainee’s health, the State has violated the right to prohibition of inhuman or degrading treatment. See, e.g., ECtHR, Claes v. Belgium, no. 43418/09, ECHR 2013, Judgment of 10 January 2013.
After several years in detention, Rooman was admitted to the Paifve institution in 2004. [ECtHR: Press Release] In 2006, the domestic Mental Health Board recommended that he be admitted to an institution that had a German-speaking psychologist, but the board ultimately rejected his application for release after noting no institutions met his language requirements. [ECtHR: Press Release] The Mental Health Board rejected Rooman’s applications for release three times, but in 2014 it instructed the Paifve institution to take measures to ensure that psychiatric services be provided in German. [ECtHR: Press Release] In addition to requests for release and appeals to the Mental Health Board, Rooman initiated proceedings against the State. [ECtHR: Press Release] In 2014, a judge found that his right to access to health care had been violated and that the situation amounted to inhuman or degrading treatment, and ordered that a German-speaking psychologist be appointed. These services only lasted until the end of 2015. See Rooman v. Belgium, Judgment of 18 July 2017, para. 93.
The ECtHR found that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention because Rooman did not have access to a German-speaking psychologist who could provide treatment for his mental illness, other than for two periods of time: from May to November 2010 and from July 2014 to the end of 2015. See id. at para. 93. In reaching its holding, the ECtHR took into account the Mental Health Board and other professionals’ findings indicating that Rooman’s inability to communicate with key medical staff at the Paifve institution prevented him from achieving medical progress and accessing care that would normally be available. See id. at paras. 83-86. The ECtHR held that the State’s failure to provide a German-speaking psychologist, particularly given that German is one of Belgium’s official languages, was a violation of Article 3 because it subjected Rooman to distress that exceeded the inevitable level of suffering inherent in detention. See id. at para. 91. Thus, the ECtHR concluded that Rooman’s detention at the Paifve institution without any realistic choice for proper medical treatment for 13 years constituted degrading treatment. See id. at para. 93.
The ECtHR did not find a violation of Article 5 (right to liberty) because there was always a connection between the reason for Rooman’s detention and the location and conditions of his detention. See id. at para. 103. The ECtHR explained that Article 5 requires a connection between the purpose of the detention and the conditions under which it takes place; for a person with a mental health disability, the detention must be in a psychiatric facility or other appropriate institution. See id. It concluded that the inadequate medical care Rooman received was unrelated to the nature of the institution where he was being detained and, therefore, the location of his detention was appropriate for the reason of his detention. See id. at paras. 103-04.
The dissent would have found that there was a violation of Article 5 (right to liberty) given that Rooman was not given proper care and was kept under inappropriate conditions. The right to liberty requires a connection between the reason for depriving a person’s liberty and the place and condition of detainment. See Rooman v. Belgium, Judgment of 18 July 2017 (dissenting opinion of Judge Karakaş) (in French). Judge Karakaş’ dissent argues that a person with a mental disability must be detained in an appropriate facility that can provide adequate care, and if they are not in such a facility, detention with an indeterminate length of time is unlawful under Article 5. See id. While the majority opinion simply considered whether Rooman was in a psychiatric facility or not, Judge Karakaş considered the actual circumstances at the Paifve institution, including the lack of consistent adequate psychiatric care and its insufficiency compared to a conventional psychiatric facility, and concluded that throughout the 13 years of detention, Rooman was deprived of the care required by his mental condition. See id. Therefore, the facility was inadequate, and according to Judge Karakaş, Rooman was unlawfully deprived of his liberty. See id.
Case Precedent on Detention and Mental Health
The European Court of Human Rights has previously found a violation of the right to prohibition of inhuman or degrading treatment when a prisoner with mental health disabilities is kept in conditions that lead to a deterioration of the prisoner’s health, including a lack of medical treatment. See, e.g., ECtHR, Sławomir Musiał v. Poland, no. 28300/06, ECHR 2009, Judgment of 20 January 2009; ECtHR, Claes v. Belgium, no. 43418/09, ECHR 2013, Judgment of 10 January 2013. In one instance, the Court held Hungary violated the right to prohibition of inhuman or degrading treatment because the State failed to within a reasonable time accommodate for a deaf and mute inmate, who could only effectively communicate with his mother to whom he was not allowed access; the Court determined that he must have felt isolated, and that fact along with other factors contributed to his conditions amounting to inhuman treatment. See ECtHR, Z.H. v. Hungary, no. 28973/11, ECHR 2012, Judgment of 8 November 2012.
The Committee of Ministers of the Council of Europe has published recommendations on the conditions of prisoners that includes protections for adequate levels of health care. In particular, a recommendation from 2006 states that medical personnel in prisons shall seek to detect and treat mental illnesses, shall report when a prisoner’s mental health is at risk due to a condition of the detention, and shall provide psychiatric treatment. See COE Committee of Ministers, Rec2006(2), Recommendation of the Committee of Ministers to member states on the European Prison Rules, 11 January 2006, arts. 40.4, 43.3, 47.2. A recommendation from 1998 states the duty to seek an interpreter for patients who cannot understand the language used by the medical staff, although the Committee of Ministers limited that aspect of the recommendation to circumstances in which the patient is refusing treatment. See Council of Europe Committee of Ministers, Recommendation No. R (98) 7, Recommendation of the Committee of Ministers to member states concerning the ethical and organisational aspects of health care in prison, 8 April 1998, para. 60.
During the three-month period following this Chamber’s judgment, either party may request that the case be referred to the Grand Chamber of the Court pursuant to Articles 43 and 44 of the ECHR. If a party requests review of the judgment, a panel of judges will either refer the case to the Grand Chamber or refuse the referral, making this judgment final on that day.