CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juillet 1998

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BELGIUM   (61/1997/845/1051)                       JUDGMENT   STRASBOURG     30 July 1998     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions   1998. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ’s-Gravenhage) SUMMARY [1] Judgment delivered by a Chamber Belgium – applicant held, for seven months of his total detention, in the psychiatric wing of an ordinary prison, rather than in a social protection centre designated by the relevant mental health board I.   GovernmEnt’s preliminary objections A.   Applicant’s lack of “victim” status Applicant could claim to be a “victim” because fact that he had been detained for too long in psychiatric wing of Lantin Prison had affected him directly. Conclusion : objection dismissed (unanimously). B.   Late submission of the application Court of Cassation Legal Aid Board’s decision, which had put an end to action brought by applicant and made it impossible for any subsequent compensation claim to succeed, was final decision from which six-month limit began to run – objection could not be upheld. Conclusion : objection dismissed (unanimously). II.   Article 5 § 1 of the Convention Length of provisional detention pending transfer not specified by any statutory or other provision – nevertheless, necessary to determine whether, in view of detention order’s purpose, continuation of provisional detention for seven months could be regarded as lawful – documents produced before Court showed sufficiently clearly that psychiatric wing in question could not be regarded as an institution appropriate for the detention of persons of unsound mind – proper relationship between aim of detention and conditions in which it took place therefore deficient. Conclusion : violation (unanimously). III.   Article 5 § 4 of the Convention In circumstances of case, application for injunction lodged by applicant satisfied the requirements of Article 5 § 4. Conclusion : no violation (unanimously). IV.   Article 6 § 1 of the Convention Present case did not involve “determination of a criminal charge” – on other hand, outcome of proceedings was decisive for civil rights – dispute concerned lawfulness of a deprivation of liberty – the right to liberty, which was at stake, was a civil right.   Applicant could legitimately apply to Legal Aid Board with a view to an appeal on points of law since in civil cases Belgian law required representation by counsel before Court of Cassation – by refusing application, Board impaired the very essence of the applicant’s right to a tribunal. Conclusion : violation (unanimously). V.   Article 3 of the Convention Living conditions on psychiatric wing at Lantin did not seem to have had such serious effects on applicant’s mental health as would bring them within scope of Article 3 – not conclusively established that applicant suffered treatment that could be classified as inhuman or degrading. Conclusion : no violation (seven votes to two). VI.   Article 50 of the Convention A.   Non-pecuniary damage Applicant must have suffered a certain amount of non-pecuniary damage which the finding of the breaches concerned was not in itself sufficient to make good – compensation awarded on an equitable basis. B.   Costs and expenses Reimbursed on an equitable basis. COURT'S CASE-LAW REFERRED TO 24.10.1979, Winterwerp v. the Netherlands; 5.11.1981, X v. the United Kingdom; 28.5.1985, Ashingdane v. the United Kingdom; 30.10.1991, Vilvarajah and Others v. the United Kingdom; 15.11.1996, Bizzotto v. Greece   In the case of Aerts v. Belgium [2] , The European Court of Human Rights, sitting, in accordance with Article   43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court B [3] , as a Chamber composed of the following judges:   Mr   R. Bernhardt , President ,   Mr   L.-E. Pettiti ,   Mr   J. De Meyer ,   Mr   I. Foighel ,   Mr   R. Pekkanen ,   Mr   J.M. Morenilla ,   Mr   B. Repik ,   Mr   P. Jambrek ,   Mr   U. Lōhmus , and also of Mr H. Petzold , Registrar , and Mr P.J. Mahoney , Deputy Registrar , Having deliberated in private on 27 April and 29 June 1998, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by a Belgian national, Mr   Michel   Aerts (“the applicant”), on 7 July 1997 and by the European Commission of Human Rights (“the Commission”) on 9 July 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 25357/94) against the Kingdom of Belgium lodged by Mr Aerts with the Commission under Article 25 on 8 August 1994. The applicant’s application to the Court referred to Article 48 of the Convention, as amended by Protocol No. 9 with regard to Belgium; the Commission’s request referred to Articles 44 and 48 and to the declaration whereby Belgium recognised the compulsory jurisdiction of the Court (Article 46). The object of the application and of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 5 §§ 1 and 4 and Articles 6 and 3 of the Convention. 2.     On 30 July 1997 the applicant designated the lawyer who would represent him (Rule 31 of Rules of Court B). 3.     The Chamber to be constituted included ex officio Mr J. De Meyer, the elected judge of Belgian nationality (Article 43 of the Convention), and Mr R. Bernhardt, the Vice-President of the Court (Rule 21 § 4 (b)). On 27   August 1997, in the presence of the Registrar, the President of the Court, Mr   R. Ryssdal, drew by lot the names of the other seven members, namely Mr L.-E. Pettiti, Mr I. Foighel, Mr R. Pekkanen, Mr J.M. Morenilla, Mr   B.   Repik, Mr P. Jambrek and Mr U. Lōhmus (Article   43 in fine of the Convention and Rule 21 § 5). 4.     As President of the Chamber (Rule 21 § 6), Mr Bernhardt, acting through the Registrar, consulted the Agent of the Belgian Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 39 § 1 and 40). Pursuant to the order made in consequence, the Registrar received the Government’s and the applicant’s memorials on 9 and 14 January 1998 respectively. In a letter of 3 April 1998 the Secretary to the Commission indicated that the Delegate did not intend to reply in writing. 5.     On 2 April 1998 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 6.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 20 April 1998. The Court had held a preparatory meeting beforehand.   There appeared before the Court: (a)   for the Government Mr   J. Lathouwers , Deputy Legal Adviser,       Head of Section, Ministry of Justice,   Agent , Mr   E. Jakhian , of the Brussels Bar,   Counsel ; (b)   for the Commission Mr J.-C. Geus ,   Delegate ; (c)   for the applicant Mr   J.-L. Berwart , of the Liège Bar, Mr   P. Fraipont , of the Liège Bar,   Counsel .   The Court heard addresses by Mr Geus, Mr Fraipont, Mr Berwart and Mr   Jakhian. AS TO THE FACTS I.   the CIRCUMSTANCES OF THE CASE 7.     The applicant, a Belgian national born in 1964, was arrested on 14   November 1992 for an assault causing its victim to be certified unfit for work, having attacked his ex-wife with a hammer. He was placed in detention pending trial, first in a two-person cell (see paragraph 23 below) and then on a ward in the psychiatric wing of Lantin Prison. A.   The detention order and its execution 8.     On 15 January 1993 the Committals Chamber ( chambre du conseil ) of the Liège Court of First Instance imposed a detention order on the applicant pursuant to section 7 of the “Social Protection” Act of 1 July 1964 (see paragraph 21 below). It decided that, pending his detention in an institution to be designated by the competent mental health board (see paragraph 21 below), Mr Aerts would be held provisionally in the psychiatric wing of Lantin Prison. The order was worded as follows: “The Committals Chamber of the Liège Court of First Instance, … Adopting the reasons set out in the public prosecutor’s written submissions; … Finds that the accused committed the acts referred to in the prosecution submissions…; Notes that at the material time the accused was suffering from a severe mental disturbance which made him incapable of controlling his actions and that he is still suffering from the same condition; Orders the accused to be detained; Orders that, pending the detention of the accused, who is at present in prison, in an institution to be designated by the Mental Health Board, he shall be detained provisionally in the psychiatric wing of Lantin Prison.” 9.     On 10 March 1993 a psychiatrist sent the mental health board for the psychiatric wing of Lantin Prison the following report: “Aerts, a detainee who is at present being held in the psychiatric wing of Lantin Prison, is a subject with a very fragile, badly organised personality and is at best what could be described as a borderline case. He is a severely addicted drug user who has been involved for many years in a sado-masochistic relationship with a young woman. He is extremely anxious in the common room of the wing, continually asks for his medication to be changed and is perpetually plunged in ruminations about how the relationship with his girlfriend on the outside is working out. His mental masochism is patently obvious to anyone listening to him and it would seem that he urgently requires the full benefits of an institution better equipped to calm the constant anxiety he feels at the moment. It is therefore an urgent matter for him to be able to leave the psychiatric wing of Lantin Prison.” 10.     On 22 March 1993 the Mental Health Board designated the Paifve Social Protection Centre as the place where the applicant should be detained. 11.     On 27 July 1993 the applicant requested leave in order to go back to live with his grandfather. In support of this application his family doctor, who had consulted the psychiatrist attached to the psychiatric wing, had on the previous day sent the Mental Health Board the following note: “I am writing to you concerning Mr Michel Aerts, who seems to have been making satisfactory progress recently. That applies to both his behaviour and his short and medium-term projects. Renewable leave would provide just the right opportunity to observe his behaviour and the way he sets about his projects outside the prison environment.” 12.     In a decision of 2 August 1993 the Mental Health Board rejected the application in the following terms: “It is not acceptable that our decision of 22 March 1993 placing [the applicant] in the Paifve Social Protection Centre has still not been executed. That failure of administration on the part of the responsible authorities is harmful to the person concerned, who is not getting the treatment required by the condition which led to his detention. However, the Mental Health Board cannot countenance any form of release which would make the person concerned a danger to himself and others.” 13.     On 27 October 1993, five days after the judgment given by the Liège Court of Appeal (see paragraph 19 below), the applicant was transferred to the Paifve Social Protection Centre. 14.     On 19 November 1993 the Mental Health Board, at the applicant’s request, decided to release him on probation on the grounds that “the detainee’s mental state [seemed] to have improved sufficiently” and that “the conditions of his social rehabilitation [were] such as to permit the belief that he [was] no longer a danger to society”. It made its decision subject to a number of conditions, which included the obligation to accept medical and social supervision and the obligation to live at the La Volière Hospital. 15.     On 24 November 1993 Mr Aerts was released. 16.     On 23 December 1996, having regard to the deterioration of the applicant’s behaviour and the breach of the conditions for his release, particularly abstention from heroin and alcohol, the Lantin Mental Health Board again ordered his detention and designated the Paifve Social Protection Centre for that purpose. B.     The injunction proceedings 1.     The proceedings before the President of the Liège Court of First Instance 17.     On 14 April 1993, being still detained in the psychiatric wing of Lantin Prison, Mr Aerts, together with three other prisoners in the same situation, applied to the President of the Liège Court of First Instance for an injunction ordering his immediate transfer, with a penalty of 10,000 Belgian francs (BEF) per day of delay. Among other allegations, he submitted that the conditions of his detention constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention. 18.     On 10 May 1993 the President of the Court of First Instance ruled that the applicant’s continued detention at Lantin was unlawful and constituted a trespass to the person which should be terminated as quickly as possible. He ordered the State to transfer Mr Aerts to Paifve and ruled that if the State did not comply with the injunction within a week of its being served, it would have to pay the applicant a penalty of BEF 10,000 per day of delay. 2.     The proceedings in the Liège Court of Appeal 19.     The State appealed on 28 June 1993. On 22 October 1993 the Liège Court of Appeal set aside the injunction of 10 May 1993 and ruled that there were no grounds for using the summary procedure. It held in particular that implementation of a mental health board’s decisions was an administrative act which fell outside the jurisdiction of the ordinary courts and that in the present case the administrative authorities had not committed a trespass to the person which was actionable in the civil courts. It gave the following reasons for its judgment: “The respondents are subject to a detention order and Paifve Social Protection Centre was designated, by the Mental Health Board’s decisions of ... and … respectively, as the place where they were to be detained. They have not been transferred there and are still being held in Lantin Prison psychiatric wing. The appellant submits that, because of a shortage of places in the Paifve Social Protection Centre, it has been obliged to draw up a waiting-list, on a ‘first come, first served’ basis, and that the person at the top of the list is transferred to Paifve as soon as a place becomes available as a result of the release of another inmate whose condition has improved. The appellant adds that extensive work has been carried out in order to increase the capacity of Paifve Social Protection Centre and that the opening of a new building there on 1 October 1993 has already enabled several detainees on the waiting-list to be transferred; that the others will be admitted there gradually, for security reasons and to allow the supervisory personnel time to familiarise themselves with their duties (see the director’s report of 1 October 1993); and that it is possible that the respondents will very shortly benefit from the opening of this new building. Although the respondents clearly have a right to be transferred to an institution where they will receive a scientifically organised course of treatment devised by psychiatric staff, it has to be recognised that in Paifve the chronic overcrowding, resulting in a deplorable lack of privacy not conducive to successful treatment, is now coupled with a marked lack of security and premises that are close to being unhygienic, so that treatment there is failing (see the descriptions in two cases in Liège Court of First Instance (Injunction Proceedings), one of 27.2.1990, reported in JLMB [ Revue de Jurisprudence de Liège, Mons et Bruxelles ] 1990, 435 and one of 4.6.1993 (Belgium v. B., C. and T., complaint no. R.F. 8349/93). The appellant has had to postpone transferring inmates subject to detention orders to this centre lest this worsen the situation, and has introduced the waiting-list system, which has been severely disrupted by a number of injunctions – accompanied by high penalties – giving certain inmates priority for reasons difficult to justify. The fact that the appellant has complied with these decisions – essentially because of the burden represented by the penalties – cannot be interpreted as meaning that it has decided once and for all to waive any challenge to the ordinary courts’ power to intervene in this area; circumstances which suggest that a right has been waived must be interpreted narrowly and such a waiver can be deduced only where those circumstances are not open to any other interpretation (Cass. [Court of Cassation] 20.4.1989, reported in Pas. [Pasicrisie] 1989, I, 861). Unlike decisions on the release of an inmate subject to a detention order, which count as judgments ( jugements ) by virtue of their subject matter (see Cass. 17.6.1968 in Pas. 1968, I, 1183, and the opinion of Advocate-General Mahaux), mental health board decisions designating the institution in which a person subject to such an order is to be detained do not concern liberty of person, but only the manner in which a detention order is to be executed (see O. Vandemeulebroeke, ‘ Les commissions de défense sociale ’, RDP [ Revue de droit pénal et de criminologie ], 1986, p. 178, § 80). By their very nature, they are not covered by Article 30 of the Constitution. The execution of these decisions is an administrative act, not a regulation ( règlement ) governed by Article 107 of the Constitution. The appellant does not deny the respondents’ right to be transferred to Paifve, but argues that they should not be transferred immediately because of the overcrowding there, the resulting disorder and the potential security problems both for staff and other citizens. The decision to continue to hold the surplus numbers of mentally disturbed offenders in prison psychiatric wings is therefore a choice which the authorities have made after weighing the detainees’ right to the most appropriate medical treatment against general security requirements. That choice is an administrative act of exactly the sort not subject to review by the ordinary courts. Although the ordinary courts have jurisdiction to order the measures necessary to end or prevent any wrongful infringement of an individual right, they are prohibited from examining the appropriateness of a measure taken by an administrative authority, and from acting as an administrative authority (see the conclusions of Mr Velu, now Principal State Counsel but at that time Advocate-General, in Cass. 27.6.1980, Pas. 1980, I, p. 1357, and in particular p. 1349; and Cass. 27.11.1992, RG 7972, Belgium v. V.D.E. (in liquidation)). A judge dealing with applications for injunctions cannot, without interfering with the administration’s general policy, question the expediency of a decision to draw up a waiting-list and disrupt the order of that list by ruling, under threat of a penalty, that a mentally-disturbed offender cared for in less favourable conditions in a psychiatric wing must be transferred immediately. There must, in any event, be other possibilities for transfer, since a mental health board – and in cases of emergency, the chairman alone – can, even of its own motion, send an inmate to another State-run – or, in exceptional cases, private – institution. The only court which has considered this issue on the merits found (see Liège Court of First Instance (Civil Proceedings), case of H. and V. v. Belgium, 16.2.1993) that the detention was nevertheless still legal, thus ruling out the existence of an arbitrary trespass to the person. The shortage of places in prisons no doubt justifies the building of additional accommodation, but this work – besides being impossible to complete overnight – entails financial commitments which are a matter of general policy not subject to review by the courts. The opening of the new building at Paifve is an illustration of the appellant’s concern about the problem of dealing with persons subject to detention orders. The observations made in 1990 by the President of the Liège Court of First Instance, on the basis of an inspection of the premises and a judicial investigation, provide a clear comparison between the regimes and types of treatment provided for the inmates at Paifve and in the Lantin psychiatric wing; this comparison excludes any need for a new inspection and enables this court to draw the conclusion that, although the situation of mentally disturbed offenders in Lantin is not ideal, and may jeopardise their recovery, the regime under which they – including the respondents – live there cannot be likened to inhuman or degrading treatment as prohibited by the Convention for the Protection of Human Rights and Fundamental Freedoms.” 3.     The application to the Legal Aid Board of the Court of Cassation 20.     On 13 January 1994 the applicant applied for legal aid in order to appeal on points of law against the judgment of 22 October 1993. In support of his application, he put forward the following arguments: “It appears from the judgment that the Court of Appeal left unanswered the appellant’s argument alleging a violation of Article 3 of the above-mentioned European Convention. In its judgment of 22 October 1993 the Court of Appeal did not reply to this argument, although the provision concerned was cited by the appellant, although the court of first instance did implicitly but undeniably reply to it and although it was implicitly but undeniably reproduced by the appellant in his submissions to the Court of Appeal, which essentially asked the court to uphold the order appealed from. It therefore appears that the above-mentioned judgment of 22 October 1993 breached, inter alia , Article 97 of the Constitution. Moreover, the Court of Appeal’s judgment of 22 October 1993 is in total contradiction with a judgment given by the First Civil Division of the Liège Court of Appeal on 18 January 1993, in which it upheld an injunction made in a similar case, ruling that the detention was unlawful and constituted a trespass to the person.” In a decision of 10 February 1994 the Legal Aid Board of the Court of Cassation refused the application in the following terms: “Whereas the appellant has supplied evidence of insufficient means; Whereas the appeal does not at the present time appear to be well-founded; The application is rejected.” ii.   relevant domestic law and practice A.   The Social Protection Act 21.     The relevant provisions of the Law of 1 July 1964 “for the protection of society against mental defectives and incorrigible offenders” (“the 1964 Act”) read as follows: Section 1 “Where there are reasons to believe that the accused is suffering from a mental disorder or from a severe mental disturbance or defect making him incapable of controlling his actions, the investigating judicial authorities may, in those cases where pre-trial detention is provided for by law, issue an arrest warrant with a view to placing him under observation…” Section 7 “Except in cases of serious crimes committed for political motives or through the medium of the press, the investigating judicial authorities and the trial courts may order the detention of an accused who has committed a serious crime and is suffering from one of the conditions set out in section 1. …” Section 12 “For each psychiatric wing there shall be a Mental Health Board. The Mental Health Boards shall be composed of three members: a serving or retired judicial officer, who shall preside, a lawyer and a doctor. The members of the Board shall be appointed for three years; they shall each have one or more substitutes. The chairman and his substitutes shall be appointed by the President of the Court of Appeal. The lawyer and his substitutes shall be chosen by the Minister of Justice from two lists of three names, one submitted by the public prosecutor and one by the President of the Bar Association. The doctor and his substitutes shall be appointed by the Minister of Justice. …” Section 14 “Detention shall take place in the institution designated by the Mental Health Board. This shall be chosen from the institutions organised by the Government. The Board may, however, for therapeutic reasons and by means of a decision mentioning the precise reasons, order the person concerned to be placed and held in another institution able to provide an appropriate level of security and treatment. … If, at the time when the detention order is made, the accused is in prison, he shall be detained provisionally in the prison’s psychiatric wing or, where there is no psychiatric wing, in the wing designated by the court which has ordered his detention.” Section 15 “The Board may, of its own motion or at the request of the Minister of Justice, the public prosecutor, the detainee or the latter’s lawyer, order the detainee to be transferred to another institution. An application by the detainee or his lawyer may not be resubmitted within the following six months. The Board may allow the detainee to alternate detention with short periods of leave in accordance with conditions and rules to be laid down by the Minister of Justice.” Section 17 “In an emergency the chairman of the Board may provisionally order transfer to another institution. His decision shall be referred to the Board, which shall determine the issue at its next meeting. In a like case, on grounds of security, the Minister of Justice may also provisionally order the transfer of the person concerned to another institution and shall inform the Board immediately.” Section 18 “The Board shall monitor the detainee’s condition and may for that purpose visit his place of detention or delegate one of its members to do so. It may, of its own motion or at the request of the public prosecutor, the detainee or the latter’s lawyer, order the detainee’s release, without conditions or on probation, where his mental condition has improved sufficiently and the appropriate conditions for his social rehabilitation have been established. If an application from the detainee or his lawyer is rejected, it may not be resubmitted within six months of the date of rejection. …” Section 20 “Where release on probation is ordered, the detainee shall be subject to medical and social supervision whose duration and conditions shall be specified in the order. Where his conduct or mental condition reveals a danger to society, particularly if he does not comply with the conditions imposed on him, the released detainee may, on an application from the public prosecutor of the district where he is found, be returned to detention in a psychiatric wing. The subsequent procedure shall be as laid down in sections 14 and 16.” B.     Belgian case-law 22.     In 1989 the President of the Liège Court of First Instance, as the judge responsible for hearing urgent applications, was for the first time asked to deal with problems arising from the continued detention in the psychiatric wing of Lantin Prison of persons who the Mental Health Board had decided should be detained at the Paifve Social Protection Centre. This first application, lodged by a Mr H. and a Mr V., gave rise to an inquiry which included a visit to the psychiatric wing of Lantin Prison and interviews with the two complainants and the doctors working at the Centre. 23.     The report on the visit to the premises and the interviews with Mr H. and Mr V., drawn up on 10 January 1990, is worded as follows: “At 2 p.m. the Chairman declared the hearing open. We went into the psychiatric wing, which is separated off from the rest of the prison, and consists of: –   one central office, with three or four supervisors, but no nurse; –   one dormitory with 26 beds in all, arranged along the two sides of the room, with a bedside table next to each bed. Two of these beds are reserved for prisoner-helpers (i.e. prisoners who are not mentally ill who have volunteered for this duty. They are considered trustworthy but have no special qualifications and are there to help the warders in the event of an incident). There are two warders: one on the ward and one in the cell area; –   one day-room with a television, a table-tennis table, two tables and nine chairs, and a surveillance camera covering the whole room. This room is immediately opposite the dormitory, and was initially supposed to be a dormitory as well. The medical authorities decided it was better to designate one as a sleeping area and the other as a day area (where smoking is allowed); –   near the day-room, the washroom, containing two toilets and a washbasin; –   near the dormitory, a separate bathroom with three showers, a bath and five washbasins; –   between the dormitory and the day-room, a corridor in which meals are served; –   a small room where, every week, drawing and French classes are held for an hour; –   a cell area currently housing twenty people, including eight people in twin cells (4 x 2). A central corridor separates the cells, in which the occupants can watch television and play cards between 6 and 9 p.m. In the morning and afternoon, they are allowed to go out into the exercise yard for one or two hours, depending on the weather. In the twin cells, one foam mattress has been placed directly on the floor; –   a fairly spacious exercise yard reserved for the inmates of the wing (of the ward and cell area alike). When we visited the common room the occupants stated that: –   there were too many of them; –   they had nothing to do; –   they spent all day in the day-room, which seemed a very long time to them; –   it was very hot; –   they did not have enough air because the windows were never opened; –   they were entitled to only one visit per week for an hour and a half; –   they were not allowed to use the telephone; –   they could change their clothes only very rarely; –   they were sent all the misfits from other places; –   there were not enough supervisors (three during the week, and often fewer at the weekend); –   they had regular contact with the psychiatrist and were on very good terms with him. When we visited the cell area, Mr H. told us that: –   he had no work to do, so time passed very slowly for him; –   he spent the whole day resting; –   he saw the doctor when he asked to but the doctor did not examine them of his own accord; –   there was no psychologist; –   from time to time he saw a social worker, but she was overworked as she had other duties in the prison and was not there every day; he therefore saw her only once a week at most; –   there were never any trips outside and no leave; –   relations with the doctor and the supervisors were very good. Mr V. told us that: –   he had no work, and could not do any sport; –   he was not allowed coffee or a lighter; –   there was no psychologist; –   he saw the social worker when he asked to, if she was there; –   the warders were good, but there were not enough of them.” 24.     On 15 January 1990 the President of the Court of First Instance interviewed the psychiatrist assigned to the psychiatric wing of Lantin Prison. His statement reads as follows: “… I am neither a relative nor an associate of the complainants. I am the only neuropsychiatrist (or doctor specialising in psychology) in Lantin Prison. I work there for ten hours a week: two hours on Mondays, three hours on Tuesdays and Thursdays, and one hour on Fridays and Saturdays. The scope of my work is vast, as I am in theory responsible for looking after all the prisoners in Lantin (about 700 of them), not just the inmates of the psychiatric wing. It is the only prison in Belgium where there is only one neuropsychiatrist for so many prisoners and people subject to detention orders. I spend three-fifths of my time in the psychiatric wing. There are many different types of inmate: people under detention orders; drug addicts who are sent to the wing when they first arrive in Lantin (new ones arrive almost every day); prisoners – on remand or convicted – with a wide range of mental disorders; and finally, people undergoing psychiatric observation, particularly at the request of an investigating judge. The wing has 42 beds, including three for prisoner-helpers, but in fact there are between 35 and 55 inmates. During the holidays there are about 47 to 49. The dormitory has 23 beds and there are 13 cells, currently housing 17 people under detention orders. The figure 40 is much too high, as these people need a lot of psychiatric and neurological care, and occupational therapy. They require treatment for acute problems, which is given. They should also be treated on an ongoing basis with a view to their social rehabilitation. They should have regular consultations with psychologists and social workers. I also think it is essential for them to be given work. And yet this ongoing treatment is non-existent. As for the people looking after them, there is only one part-time psychiatrist (myself). There are no qualified nurses, only supervisors with no special training. There should be five supervisors per shift, but there are often only four and sometimes even three. The presence of these supervisors is very important for the inmates: they are there to listen to them, talk to them, stay on the ward and play games with those who want to, which is practically impossible given the high number of inmates and the low number of supervisors. They are also supposed to supervise the inmates’ visits and the exercise yard. One of these supervisors, who is not a nurse, has to prepare the medication. There is no psychologist, and no occupational therapist, although one is needed to make work part of therapy. There is no tutor. There is only one social worker, who also works in other parts of Lantin (particularly with the women prisoners). The inmates under detention orders are also given a few music, English and French lessons by volunteer teachers, but much more could be done... Inmates under detention orders may see me on request. I do not examine them systematically every day. It would be better for me to see them regularly and talk with them, but this is quite impossible given their number and the few hours I have at my disposal. [After the above statement was read back to him, the witness added:] Ongoing treatment is becoming increasingly necessary, given that the inmates under detention orders are spending longer and longer in the psychiatric wing, whereas they should be in a Social Protection Centre. [In reply to a question from Mr Berwart:] The detainees cannot be given intravenous injections, as these must be given by a doctor. They can be given only intramuscular injections, which should be given by a nurse but are given by supervisors whom I have shown how to do it. This cannot cause any serious problems, however. I only see inmates at their request. Often, what they want is very specific, so that I need to spend only a short time with them. However, when they want to ‘get things off their chest’, I usually spend fifteen minutes or half an hour with them, which I consider too little. [In reply to a question from Mr Dewez:] Generally speaking, intravenous injections may be required, particularly for acute depression. These injections cannot possibly be given in the psychiatric wing, owing to the lack of qualified staff. …” 25.     In an injunction of 27 February 1990 issued on the application of Mr   H. and Mr V., the judge responsible for urgent applications held that, where it had been decided that a person was to be detained at Paifve, his continued detention in the psychiatric wing was in breach of “both sections   6 and 14 of the Social Protection Act of 1 July 1964 and Article 3 of the Convention”. He took the view that the situation at Lantin was much less favourable than at Paifve, noting that those detained there did not have the social, psychological and psychiatric care the Act required, or regular medical attention from a psychiatrist, or an environment suitable for the treatment of psychiatric patients. He accordingly ordered the State to provide the complainants with a detention regime that complied with the Act. When the Liège Court of First Instance came to consider the merits of the case, it held that the detention had remained lawful in spite of the long delay that had occurred before the transfer from Lantin to Paifve. 26.     The President of the Liège Court of First Instance, sitting as the judge responsible for urgent applications, subsequently issued a number of injunctions along the same lines as that of 27 February 1990;