March 15, 2019
Marie Bourguignon is a PhD researcher at the Leuven Centre for Public Law, Institute for Human Rights. She specializes in linguistic rights and access to law in multilingual Belgium.
On 31 January 2019, the Grand Chamber of the European Court of Human Rights convicted Belgium for inhuman or degrading treatment as well as for violating the right to liberty and security. The case concerns Mr. Rooman, a convicted sex offender suffering from mental disorders and sentenced to prison, who could not have proper access to psychiatric and psychologic care in his own language. Although the Court was right to find human rights violations in casu, it should not have based its reasoning on the official status of the language spoken by the applicant.
Summary of the facts
The end of the prison sentence of Mr. Rooman was, at the time, scheduled for 2004. Due to recidivism during his years in detention, Mr. Rooman (henceforth also referred to as the “Applicant”) was interned in 2004 at the Paifve social protection institution, located in the French-speaking region. Medical reports attesting to the need for therapeutic care indicated that the therapy must be provided in the German language, as the Applicant was unable to communicate in another language. However, in the German-speaking region, there exists no institution similar to the one in Paifve. Belgium has 4 linguistic areas, of which the German-speaking region is the smallest. The latter region comprises nine municipalities with a combined population of roughly 77,000 inhabitants, corresponding to approximately 0.7% of the Belgian population.
Between 2005 and 2015, Mr. Rooman made three requests for conditional discharge before the Commission de Défense Sociale (henceforth referred to as: the “CDS”). The Commission rejected these requests, considering the potential dangers posed by releasing the Applicant as well as the lacking evolution of Mr. Rooman’s mental state. In addition, the Commission had observed the Applicant’s inability to obtain care in a language he understands.
In the meantime, Mr. Rooman had sued the Belgian State before a Brussels judge hearing applications for interim measures. Mr. Rooman requested to be discharged and, alternatively, to have authorities take the necessary measures in light of the state of his health. At the end of 2014, the judge concluded there was a violation of the right of access to health care and of the prohibition of inhuman and degrading treatment. In this respect, the Belgian State was ordered to appoint a German-speaking psychiatrist and medical assistant to take care of Mr. Rooman. In that same year, Mr. Rooman had likewise lodged a negligence claim against the Belgian State. In September 2016, the Brussels Court of First Instance observed a failure to provide psychological and psychiatric care in the Applicant’s mother tongue between 2010 and 2014. According to the Court, this type of care should, unquestionably, be provided in the German language, being the only language Mr. Rooman had mastered and one of three official languages in Belgium. The Belgian State was ordered to pay a compensation amounting to 75,000 euros. The appeal procedure, initiated by both Mr. Rooman and the Belgian State, is currently ongoing. Before the European Court of Human Rights, Mr. Rooman similarly denounced the lack of psychiatric and psychological care appropriate to his situation, arguing that language constituted the main obstacle to the provision of such care. On July 18, 2017, the Chamber delivered a judgment which unanimously recognized the violation of Article 3 of the European Convention of Human Rights (ECHR) and concluded, by six votes to one, the lack of an Article 5, §1 ECHR violation. The case was then brought before the Grand Chamber, which carefully distinguishes between (1) the period from 2004 to August 2017, the latter being the date on which, according to the Belgian State, a therapeutic programme had been set up in response to the July 2017 Chamber judgment; and (2) the period after August 2017.
The Grand Chamber case
Prohibition of inhuman or degrading treatment
According to Mr. Rooman, the lack of psychiatric and psychological care in the German language during his internment, as well as the absence of any prospect of mental health improvement resulting from the mentioned lack of care, amounted to inhuman and degrading treatment.
To fall within the scope of protection of Article 3 ECHR, the treatment in question must attain “a minimum level of severity”. The severity of the treatment is relative, depending on the circumstances of the case at hand. As regards medically ill prisoners, the Court took into account the individual’s health as well as the extent to which the illness is affected by the applied detention methods. The Court also considered the adequacy of the medical care provided in detention, examining whether the essential conditions are created for the prescribed treatment to be executed. In other terms, the Court examined whether “necessary and reasonable steps” had been taken to ensure the administration of a therapy. Certainly, Article 3 ECHR —or any other provision of the Convention, for that matter—does not, as such, recognize a right to treatment in one’s own mother tongue, even where it is an official language of the respective State. However, the Court observed that, in the area of psychiatric care, the linguistic element may be decisive to the administration of the therapy, though only where other factors do not make it possible to offset the lack of communication. With respect to the first period, between 2004 and August, 2017, the Court cited a lack of therapeutic care, caused by the inability of medical staff and the Applicant to communicate with each other. On this point, the Court found such a linguistic obstacle to be “the sole factor limiting the Applicant’s effective access to the treatment that was normally available”. The Court did not find any elements in the medical care, as provided to the Applicant, that would compensate for the lack of communication in the German language. Although the Applicant was sometimes able to meet qualified German-speaking staff, the majority of meetings lacked therapeutic purposes. Furthermore, while certain measures were put in place to facilitate communication with the Applicant, they were established with a considerable delay and only for a short amount of time. As a result, the Applicant was deprived of the necessary care for a substantial period of time. The internment, lacking appropriate long-term medical supervision and any realistic hope of change, may be considered as particularly painful, putting the Applicant in a higher state of distress than the one inevitably linked to detention. Consequently, the Grand Chamber affirmed, much like the Chamber did earlier, the existence of an Article 3 ECHR violation for the 2004-2017 period.
As regards the situation after August, 2017, the Court analysed the concrete measures taken to ensure individualized therapy of the Applicant. The Belgian authorities, for instance, provided access to a German-speaking psychiatrist. The Applicant, however, asserted that such measures solely amounted to expressions of intent. The psychiatrist was allegedly only made “available”, whereas as, repeated by the Court, the “duty to provide suitable care on the basis of individualised treatment lies primarily with the relevant authorities”. While acknowledging the regrettable nature of these circumstances, the Grand Chamber highlighted that there was no evidence which indicated the existence of a specific request for a consult made by the Applicant. Considering the variety of initiatives undertaken by the Applicant to gain general access to psychiatric therapy, Mr. Rooman was deemed aware of the need to undergo such a therapy. Moreover, Mr. Rooman did not provide any concrete information on how the treatment proposed by Belgian authorities after August 2017 was ineffective. The short duration of the period was insufficient to conclude that the proposed therapy was not appropriate for the Applicant. Therefore, the measures taken by the State may be regarded as “appropriate treatment”. The threshold of severity, as required to trigger protection under Article 3, had not been reached for this period; consequently, there was no violation of Article 3 of the Convention.
Mr. Rooman likewise claimed that his detention is unlawful, as he did not receive the psychological and psychiatric treatment appropriate for his state of mental health which would help him to eventually reintegrate in society. In order to determine whether the detention is lawful, the Court examined whether there existed a link between the purpose of the deprivation of liberty and the conditions in which such deprivation took place throughout the entire period of detention. Consequently, the Court looked at the suitability of the institution in which the person is placed. In the Chamber case of 2017, a majority found that the Applicant was detained in an establishment a priori adapted to both his state of mental health and ‘dangerous’ nature. The Grand Chamber clarified and refined its jurisprudence regarding Article 5 §1 e) as it takes into account the particular circumstances under which the individual was interned. Asserting that an appropriate institution also includes an individualized treatment, the Court examined whether the institution was suitable and whether the internee was entitled to a medical environment adapted to the state of his health. In the absence of real therapeutic measures, it became illusory to release the person. In this regard, the Court considered whether the authorities had made all reasonable efforts to ensure appropriate and individualized treatment, potentially leading to the Applicant’s improved health condition, a reduction of his dangerous nature, as well as to the prospect of a release. Regarding the period between 2004 and August, 2017, the Court noted that (1) the Applicant had repeatedly asked for care to be provided in the German language; that (2) the CDS had emphasized the imperative need for a therapy in his mother tongue; and that (3) therapy in the German language had only been provided between September 2014 and the end of 2015. While specifying that that Article 5 §1 e) does not guarantee the right of the internee to receive care in his language, the Court pointed out that, given the recommendations of medical specialists and the personality disorders of the Applicant, Belgian authorities neglected the obvious role of dialogue between the patient with mental diseases and therapists during therapy. The measures taken by the Belgian state did not form part of a therapeutic program. In fact, the Applicant had not received individualized treatment adapted to his state of health for approximately 13 years. Considering the indeterminate length of the deprivation of liberty, as well as the Applicant’s health and the requests he made, the Grand Chamber affirmed the existence of considerable negligence, of such a nature to hinder Mr. Rooman’s potential to improve his condition. The Court added that, since the language required is one of three official languages in Belgium, the lack of care is even more unjustifiable considering the possibility of overcoming language-related problems. Therefore, a violation of Article 5 of the Convention was found for the period between 2004 and August 2017, as there did not exist a link between the purpose of the deprivation of liberty and the (inappropriate) conditions in which the deprivation took place in the Paifve institution. For the period subsequent to August 2017, the Grand Chamber assessed whether the care provided to the Applicant corresponded to an individualized and specialized treatment for the suffered mental disorders. The Court submitted that, considering the margin of appreciation of States in this field, there should be no evaluation of the specific content of therapy. According to the Grand Chamber, the authorities showed a willingness to change the Applicant’s situation by setting up a psychiatric, psychological and social monitoring framework in a linguistic context appropriate to his communication skills. Additionally, the authorities demonstrated sufficient efforts in integrating the Applicant as far as possible into the treatment plan by obtaining his opinion on various occasions. These steps were likely to facilitate communication and the establishment of a relationship of trust. The measures taken were therefore considered prima facie sufficient for an appropriate therapy, given the short period. It could not be concluded that the deprivation of liberty of the Applicant did not pursue a therapeutic goal during the period. No link was demonstrated between the purpose of deprivation of liberty and the conditions of its execution. Consequently, the Grand Chamber decided that no violation of Article 5 of the Convention could be found after August 2017.
Is there a right to adequate treatment in one’s language, with a role for the official status of the language?
In the part of the judgment regarding Article 3 ECHR, the right of access to care in one’s language was inferred mainly from (1) the absence of other possible alternatives to ensure the administration of care; as well as (2) the gravity of the situation generated by the mentioned absence of alternatives. Under particular circumstances, a right to psychiatric treatment in a given language may well exist, regardless of the official status of the language. As stated by Judge Nussberger in her partly dissenting opinion, it might be regrettable that the Grand Chamber did not take the opportunity to define the conditions of application of this right as well as its limits under Article 3 of the Convention. When should State provide linguistic access, and when is such a measure seen as necessary and reasonable? With respect to Article 5 ECHR, the official status of the German language appeared to play a role in assessing the reasonableness of measures to be taken by the State in order to ensure an appropriate treatment and the use of a suitable institution. As mentioned above, due to the nature of German as an official language, the lack of care was even more unjustifiable and made ‘not unrealistic’ to overcome a problem related to the use of this language. Those assumptions raise questions concerning the obligations for states recognising a language as official and may ignore the extent to which the official status of a language may be granted (or refused) solely for historical or symbolic reasons. Does the reasonableness of a measure necessarily result from the official status of a language? Perhaps it would have been wiser for the Court to avoid such a link. This is especially important since the rest of the judgment appears to suggest that where the language in question did not have an official status, there could have also been a violation on this issue. Indeed, there is reason to believe that a detainee speaking a language which is not officially recognized in Belgium could be granted the same rights in similar circumstances, on the condition that the measures the Belgium state has to take are considered to be reasonable. For example, to provide access to an interpreter speaking a language which is not an official one but which is used by a large part of the (inmate) population may be considered as a reasonable measure for the state. It is more the reasonable character of the linguistic measure rather than the status of a language that should play a role in these kind of cases, as the protection of society and access to health care should not depend on national language policies. That being said, a case concerning a non-official language would be welcomed in the hope of inducing the Court to refine the principles applied on this issue. Indeed, debates before the Grand Chamber allow cases to be viewed from a broader angle. It is implied, from the Applicant’s inability to obtain care in the only language he understands, that Mr. Rooman did not obtain individualized therapy. As highlighted by Judge Lemmens in the concurring part of his Opinion, the absence of therapy and care in the German language is not considered to be the only issue in casu, rather a problem hiding another more fundamental concern, that being the lack of adapted care, which is the main element of the Grand Chamber’s reasoning. Even though no provisions within the Convention protect linguistic rights in an explicit manner, this case demonstrates the importance of such protections, as the absence of access to services in one’s own language may lead to the violation of core rights, such as the prohibition of degrading treatment and the right to liberty and security.
 In addition, the applicant submitted a new application for discharge before the Chambre de protection sociale (CPS) at the end of 2017, a few months after the Chamber judgment of the ECtHRr. The CPS, competent for the detention of persons according to the new legislation, rejected his request on the grounds that his detention was still justified and that he could now benefit from psychological, psychiatric and social follow-up in German.