The subscription of Belgium to Strasbourg in detention cases: Rooman v. Belgium & Tekin and Arslan v. Belgium

By Rebecca Deruiter – PhD Researcher, Institute for International Research on Criminal Policy (IRCP), Ghent University[1]

Two rulings convicted the Belgian state for violating Article 3 in the case of Rooman v. Belgium and Article 2 in the case of Tekin and Arslan v. Belgium. Both these cases concern mentally-ill offenders for which the Belgian state already has a deplorable reputation. These judgments reveal, once again, structural problems which are still present in the Belgian penitentiary system: the lack of (after)care for mentally-ill offenders and the inadequate training of prison staff.

Rooman v. Belgium

The facts of the case

The case concerned Mr. René Rooman, a Belgian and German national, who was convicted of theft and sexual assault in 1997. While being detained, the applicant committed new offences and was sentenced and detained in a psychiatric institution. In January 2004, the applicant was deprived of his liberty in a social protection facility in Paifve.

Mr. Rooman only speaks and understands German. After making an application for release on a trial basis, the Mental Health Board recommended in January 2006 to find an institution that could admit him and provide him with therapy in German. A second application for release was again rejected by the Board. The Board noted there was no institution which could meet the security and language requirements in this case. In the meantime, the Board instructed regional authorities to search a service which could provide therapeutic residential care in his mother language. After applying for release in 2013, a report of the Mental Health Board in Paifve stipulates that the applicant only understands a few words French and is therefore isolated from other patients and staff. The Board rejected Mr. Rooman’s application for release a third time, arguing that the requirements of an improvement in his mental state and guarantees for his social rehabilitation were not met. In 2014 the Board instructed the Paifve institution to take measures so that psychiatric services would be provided in German.

In 2014 the applicant started judicial proceedings against the Belgian state. A judge found that Mr. Rooman’s access to health care had been violated and that the situation amounted to inhuman or degrading treatment. The judge ordered the appointment of a German-speaking psychologist and a medical assistant. The visits of a German speaking psychiatrist and psychologist lasted until the end of 2015.

The Court’s reasoning

Since his incarceration in Paifve in January 2004, the applicant has not received any therapeutic treatment for his mental health problems because of the language barrier. Since 2006, the Board called for therapeutic treatment outside the Paifve institution provided in German. A number of reports by the mental Health Board and the professionals who met with Mr. Rooman show that the therapeutic treatment was incompatible with the only language understood and spoken by the applicant. Mr. Rooman’s lack of progress resulted from this absence of care. Stipulating the fact that German is one of the three official languages in Belgium (next to Dutch and French), the Court therefore argues that the authorities failed to ensure adequate treatment for the applicant’s state of health. According to the Court, the applicant was without proper medical supervision for thirteen years,[2] subjecting him to a distress of an intensity exceeding the inevitable level of suffering inherent in detention. As a result, the Court argued that the failure of the Belgian state to provide therapeutic care in detention to a mentally-ill offender breached Article 3.

The Court did not find a violation of Article 5 (the right to liberty) because of the connection between the applicant’s reason for confinement and his mental illness. The absence of appropriate care did not break this connection and did not make his deprivation of liberty unlawful.

Tekin and Arslan v. Belgium

The facts of the case

This case was brought to the court by the parents of Michael Tekin who passed away in the prison of Jamioulx in 2009. On 7 August 2009, Mr. Tekin’s probation was withdrawn due to the failure to comply with his conditions of release. Mr. Tekin was arrested the same day. Instead of being held in the psychiatric wing of the Jamioulx prison, Mr. Tekin was placed in an individual cell in the ordinary section of the prison.

The next morning, the deputy director of the Jamioulx prison decided to apply special security measures because Mr. Tekin was nervous and agitated. He considered his detention arbitrary and demanded his release. Three prison officers notified Mr. Tekin of the decision. During that conversation, Mr. Tekin provoked the correctional officers and they decided to place him in a security cell. To remove Mr. Tekin out of his cell, the correctional officers had to perform a series of manipulations (e.g. blocking of arms, arm lock around the neck, placement of full body weight on the inmate’s body). During this process Mr. Tekin claimed to have complained about the lack of air and suffocation. Reinforcement for the three correctional officers arrived and the wrists and ankles of Mr. Tekin were handcuffed. The testimonies of the correctional officers agreed that they had to drag him by the shoulders, then carry him and that his head was hanging. During the transportation, the correctional officers found that Mr. Tekin urinated himself. Once inside the security cell, the correctional officers found that Mr. Tekin’s face was cyanosed. When the prison nurse and doctor arrived at the cell, cardiac massage was given after noticing that Michael Tekin was not breathing and had no pulse. In the meantime, the medical emergency services were notified. One of the nurses in the medical emergency services later declared they were not informed about the seriousness of the situation. The physician could only observe that Mr. Tekin had passed away.

After Mr. Tekin’s death, an inquiry opened. One of the correctional officers stated that they had not received any training on how to deal with detainees in crisis. The autopsy report concluded that the maneuvers by the correctional officers caused very deep lesions to the point of breaking cartilage in the throat area. Also signs of suffocation were witnessed. Three judicial proceedings by the parents against the correctional officers, their colleagues and the Belgian state were all dismissed or declared inadmissible.

The Court’s reasoning

Ensuring the right to life implies that authorities establish an appropriate legal and administrative framework of safeguards against arbitrariness, abuse of force and avoidable accidents. The Court holds that the legal framework on the use of coercion by prison staff against detainees is in accordance with the principle of proportionality, even though it considers it to be very general. Furthermore, the authorities failed to demonstrate that, at the time of the incident, there were adequate instructions prohibiting these manual techniques to control or immobilize detainees. The Court judges that the absence of clear rules explains why the prison staff took initiatives that endangered Mr. Tekin’s life.

The Court emphasizes the lack of training for the prison staff. The Court uses several reports by the CPT, the Council of Europe Commissioner for Human rights and the International Prison Observatory (OIP) which highlight the lack of training and the difficult working conditions[3] for the prison staff. The Court argues that the prison officers involved in this case received a relatively brief training and especially no training concerning how to deal with mentally-ill offenders or persons suffering from a psychiatric disorder. The Court notes the positive evolution in the sense that the authorities now invest more in prison staff training. However, these formations did not exist before the death of the applicants’ son. Furthermore, the Court argues that Mr. Tekin should have been placed, at least, in a cell at the psychiatric wing with staff which are better equipped to deal with people with psychiatric disorders. While Mr. Tekin was particularly vulnerable due to his mental disorder the Court argues that it appears as if Mr. Tekin was treated not only by both the prison officers and the deputy director but also by the correctional court as an ordinary prisoner. The Court further questions the relevance of the intervention (no consideration of less coercive measures) and the choice of the applied immobilization techniques. Despite Mr. Tekin being on the ground and immobilized, no longer posing a threat to others, the prison staff did not carry out any examination in order to ensure his health. In light of the foregoing, the Court judges that the use of force was not absolutely necessary or proportionate and finds there has been a violation of Article 2 (the right to life).

Comments

These two cases demonstrate the continuous structural problems related to the lack of care for mentally-ill offenders and the inadequate training for correctional officers in Belgium.

Belgium already received a pilot judgment for the way it treats its mentally-ill offenders. Since that judgment, Belgium had two years to show the Belgian psychiatric detention system was not structurally deficient. The pilot judgment encouraged the Belgian state to take action to reduce the number of offenders with mental disorders who were detained in prison psychiatric wings without receiving appropriate treatment. Two new institutions for mentally-ill offenders opened in Ghent and Antwerp aiming to tackle this problem. However, the lack of aftercare is still problematic resulting in a bottleneck and a minimal outflow of patients from these centers to non-forensic or non-residential settings. Furthermore, hundreds of mentally-ill offenders are still being deprived of their liberty at psychiatric annexes in regular prisons.

The second case illustrates the importance of comprehensive, continuous and adequate trainings for prison staff. This was also stressed in the public statement by the CPT issued against the Belgian state: “As the CPT has regularly pointed out, prison staff carry out a fundamental and very specific public service role which should be recognized in terms of recruitment, training and working conditions that ensure that inmates are looked after appropriately.”. The lack of training is one element of a bigger rationalization process which is currently ongoing in the Belgian penitentiary system. Prison staff needs to do more tasks with less resources resulting in an increased work pressure, high levels of sick leave and eventually industrial actions by the prison staff.

The subscription the Belgian state has to Strasbourg concerning the issue of detention is highly problematic. Perhaps equally worrisome is the lack of media attention for these convictions. There appears to be a sort of normalization for these convictions. While Belgium is not the only state in Europe struggling with its penitentiary system, the question can be raised what these convictions mean for a state? The long list of convictions in this area is only getting longer and longer but the structural problems remain.

[1] Research interests include penitentiary systems, detention conditions, judicial cooperation in criminal matters, asylum.

[2] With the exception of two periods (between May and November 2010 & between July and the end of 2015) the applicant could consult with a German psychologist.

[3] Due to overpopulation, increased workload, etc.