CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 18 juillet 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s4BAE41EE { font-family:Arial; font-size:11pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s387404A2 { width:193.29pt; display:inline-block } .s2055D3B3 { width:16.54pt; display:inline-block } .s7C039683 { width:226.45pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .sBA366A80 { font-family:Arial; text-decoration:underline; color:#0072bc } .sB343B0AA { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#000000 } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }         SECOND SECTION           CASE OF ROOMAN v. BELGIUM   (Application no. 18052/11)               JUDGMENT       STRASBOURG   18 July 2017       THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 31/01/2019   This judgment 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:   Robert Spano, President,   Ledi Bianku,   Işıl Karakaş,   Nebojša Vučinić,   Paul Lemmens,   Valeriu Griţco,   Jon Fridrik Kjølbro, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 20 June 2017, Delivers the following judgment, which was adopted on that 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 and German national, Mr René Rooman (“the applicant”) on 1 March 2011. 2.     The applicant was represented by Mr   V. Hissel and Mr B. Versie, lawyers practising in Liège. The Belgian Government (“the Government”) were represented by their Agent, Mr M. Tysebaert, Senior Adviser, Federal Justice Department. 3.     The applicant alleged, in particular, that in the absence of psychiatric care in the institution in which he was held, his preventive detention was in breach of Articles 3 and 5 § 1 of the Convention. 4.     On 7 January 2014 the complaints under Articles 3 and 5 § 1 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible, in accordance with Rule 54 § 3 of the Rules of Court. 5.     By letter of 10 January 2014, the German Government were informed of the possibility of submitting written observations under Article   36 § 1 of the Convention and Rule 44 if they so wished. The German Government chose not to avail themselves of their right to intervene. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1957. He is detained in the Paifve social-protection institution (“the Paifve EDS”). A.     The applicant’s initial detention 7.     In 1997 the applicant was convicted of theft and of sexual assault, by the Liège Court of Appeal and the Eupen Criminal Court respectively. The prison sentences were due to end on 20 February 2004. 8.     While imprisoned, the applicant committed offences in respect of which fresh proceedings were brought. On 16 June 2003 the Committals Division (chambre du conseil) of the Liège Court of First Instance decided, pursuant to section 7 of the Law of 9   April   1930 on Social Protection in respect of Mental Defectives, Habitual Offenders and Persons Convicted of certain Sexual Offences (the “Social Protection Act”), 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, to order the applicant’s preventive detention. 9.     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. 10.     On 15 January 2004, based among other elements on a psychiatric report by Dr V. dated 23 September 2003, the Minister of Justice also decided that the applicant was to be detained in a psychiatric institution, pursuant to section 21 of the Social Protection Act, as a continuation of the sentences imposed in 1997. 11.     On 21 January 2004 the applicant entered the Paifve EDS, located in the French-speaking region, further to a decision of 16   October 2003 by the Social Protection Board for the Lantin Prison psychiatric wing (the “CDS”). B.     The first application to the CDS for release on a trial basis and the request for day release 12.     On an unspecified date the applicant made an initial application for release on a trial basis. 13 .     On 27 January 2006 the CDS postponed its examination of the request for release on a trial basis until March 2006, and recommended finding an institution that could admit the applicant and provide him with therapy in German, the only language he could understand and speak. 14.     The application was examined by the CDS on 9 June 2006. At the hearing, the head 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, social worker or warden was employed in the institution. 15.     In consequence, the CDS held: “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; he has been abandoned to his fate without any treatment since his arrival in Paifve (on 21 January 2004), even if 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 preventive detention, 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 double condition is not fulfilled, [Mr] Rooman’s detention is unlawful; ...” 16 .     The CDS postponed its examination of the application for release on a trial basis until a hearing in September 2006, pending the appointment of German-speaking employees to the Paifve EDS. 17 .     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. 18 .     On 26 January 2007 the CDS dismissed the application for release on parole. It had been indicated in a report of 24 January 2007, drawn up by the German-language psychosocial team in Verviers Prison, that the applicant had a psychotic personality and paranoid character traits (high self-opinion, feeling of omnipotence, lack of self-criticism and 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 in the applicant’s specific case; the only German-language hospital which could be considered was an open hospital, and it had thus to be ruled out in view of the applicant’s mental health. 19 .     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 unsuccessful. Accordingly, it ordered the Eupen remand prison to prepare a plan for release on a trial basis, and ordered a new expert report in order to assess the level of danger posed by the applicant. It adjourned examination of the request sine die. C.     The contested proceedings, concerning the second application to the CDS for release on a trial basis 20.     Having received a new application from the applicant for release on a trial basis, the CDS held, in a decision of 5 May 2009: “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 available to him. The prison authorities have not put forward any kind of solution to this problem, of which its various 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 indicate that Rooman, who continues to present a danger to society, cannot be released without support and preparation in an institutional setting, something that cannot currently be provided in Belgium, but is available abroad.” 21.     In consequence, the CDS invited the Eupen remand prison to prepare, together with applicant, a plan for release on a trial basis, and encouraged the authorities to take, rapidly, the measures necessary to improve the applicant’s situation. It adjourned the case to a later date. 22.     On 13 October 2009 the CDS found: “In the years since this file was opened (October 2003), the persons involved in this case have been thwarted by the fact that the detainee 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 relaxation of the detainee’s regime ‘is 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 with and leaves the building only in the company of 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; ...” 23 .     On those grounds, and pointing out that German was one of the national languages 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 release on parole. 24 .     On 12 January 2010 the applicant submitted pleadings in support of his application for release. He criticised the failure to provide him with therapeutic care and the effect on his health of any prospect of seeing his situation improve. As his main submission, he requested his immediate release on the grounds of the illegality of his detention. Alternatively, he asked that the CDS impose an obligation on the relevant authorities to take all necessary measures so that he would receive the treatment required by his mental-health condition in his mother tongue. 25 .     By 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 left no hope of ensuring that the applicant would receive appropriate treatment, in a secure establishment or elsewhere. The CDS considered that it was necessary to attempt one last plea to the Minister of Justice, whose intervention had previously led to some changes, even if they were insufficient to resolve the problem. The CDS accordingly ordered that an “official denunciation” of the applicant’s situation be sent to the Minister of Justice. 26 .     On 29 April 2010 the CDS noted that the Minister of Justice had not replied to its submission and that the applicant’s situation had worsened, in that he could no longer count on help from the German-speaking nurse A.W., who had left the Paifve EDS. The CDS continued: “It follows from the report [from the psychosocial department] of 30 March 2010 that, except for occasional meetings with a social worker “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 by the completion of the ‘ongoing measures (taken) by the department to enable a German-language psychologist to intervene occasionally to provide care for the German-speaking patients in the EDS’; Mr Rooman’s situation is frozen: 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 give rise; In spite of the unlawfulness of Mr Rooman’s detention, his health condition means that release 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, to health care and to 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.” 27.     The CDS decided, while “remaining open to any proposals”, to leave the applicant’s situation unchanged; in other words, it rejected his application for release. 28.     The applicant appealed against that decision to the Higher Social Protection Board (“the CSDS”). 29 .     In parallel, the applicant made an urgent application to the President of the Liège Court of First Instance, in order to have his detention declared unlawful and obtain his immediate release, or, alternatively, to obtain a decision ordering the Belgian State to provide him with the medical care required by his situation. 30 .     By an order of 12 May 2010, the president of the court held that he did not have jurisdiction, on the grounds that the CDS was the lawful body with power to release the applicant or decide on his continued detention. 31 .     On 27 May 2010 the CSDS upheld the CDS’s decision of 29   April 2010 to maintain the applicant in detention. Unlike the CDS, the CSDS held that the applicant’s detention was perfectly legal, given that he had been lawfully detained and that he did not fulfil the conditions for definitive or conditional release. Under section 18 of the Social Protection Act, release could only be ordered if the detainee’s mental condition had improved sufficiently and if the conditions for his social reinsertion had been satisfied. However, this was not the situation here. The CSDS also considered 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. 32 .     The applicant appealed on points of law, alleging a violation of Articles 3 and 5 of the Convention. 33.     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 found: “As preventive detention is primarily a security measure, the therapeutic action necessitated by such detention is not legally required in order for the detention to be lawful, even if its aim, secondary to that of protecting society, is to provide the detained person with the necessary treatment. The social protection boards derive from section 14 (2) of the Act the power, rather than the obligation, to order, in a decision giving specific reasons, placement in an institution that is appropriate in terms of the security measures and the treatment to be given. It follows that execution of the preventive detention 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 possible treatment it might provide.” 34 .     The argument alleging a violation of Article 3 of the Convention was declared inadmissible, since its examination would require a factual verification of the conditions in which the preventive detention was being conducted and such an examination fell outside the scope of the Court of Cassation’s jurisdiction. For the remainder, the Court of Cassation considered that the CSDS had replied to the applicant’s complaint in finding 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 care he required. D.     The third application to the CDS for release 35.     On 13 November 2013 the applicant again applied for release. 36.     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, and spoke only a few words of French, which did not enable him to conduct a conversation; in consequence, he had very little contact with the other patients and members of staff. The report also referred to a single meeting between the applicant and a German-speaking psychologist in June 2010. The report noted an improvement in the applicant’s behaviour; he was apparently less aggressive and intolerant than before. Further, the applicant had never expressed a wish to meet members of the psychosocial team on a regular basis. The report concluded that he should remain in detention in the Paifve EDS, citing among other reasons his “untreated mental health problems”. 37.     On 24 January 2014 the CDS noted, firstly, the content of the reports by Dr   Ri., of 5 September 2005, and Dr Ro., of 21 January 2009, which stressed the need for psychopharmacological and psychotherapeutic treatment in a secure establishment, then in a closed institution, before an open facility could be envisaged. The CDS noted that, in the interim, the various attempts to find a solution to the language problem had not succeeded in bringing about a significant improvement in the applicant’s health: the rare outings accompanied by a German-speaking member of the prison staff had been abandoned when this employee, who was not replaced, became unavailable; attempts to find a German-language institution, doctor or therapist had met with failure; no follow-up seemed to have been given to the announcement 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 social worker with whom he had occasionally met. The CDS rejected the application for release on parole, finding that the conditions for release (an improvement in the applicant’s mental state and guarantees for his social rehabilitation) were not met. With regard to the alleged absence of treatment in German, the CDS specified: “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 mentioning the treatment that he has allegedly been denied and that he would agree to accept or in which he would take part. 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 care 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 release 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 penalise their actions or shortcomings ...” 38.     On 3 April 2014 the CSDS upheld the decision by the CDS, finding, among other points: “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 demand. The detainee is thus clearly wrong in attributing the lack of improvement in his mental condition to the language issue alone. The continued preventive detention in a EDS that is adapted to his medical condition of an individual who would represent a danger to the public in the event of release, where 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].” 39.     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 membership. 40 .     On 22 July 2014 the CSDS issued an interlocutory finding, requesting the CDS to appoint a group of German-speaking experts to update the psychiatric report of 21   January 2009. It instructed the head of the Paifve EDS institution to take all the necessary measures to ensure that the requisite care was made available, 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. 41.     The Court has not been informed of the progress of those proceedings. E.     The proceedings before the Brussels urgent-applications judge 42.     In the meantime, on 28 March 2014 the applicant 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 application of Article 584 of the Judicial Code. He asked for his release or, as a subsidiary measure, the imposition of the measures required by his state of health. 43.     By an interlocutory order of 4 July 2014, the president of the court asked the head of the Paifve EDS and Dr B. from the psychosocial unit in that EDS to submit statements concerning the treatment available in the Paifve EDS and the treatment that had in fact been provided to the applicant. 44 .     Statements submitted by the head of the Paifve EDS and by Dr B. on 28   August 2014 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. 45 .     In an order of 10 October 2014, the president of the court noted that, until September 2014, the applicant had never had access to a psychiatrist who could communicate with him in German. He had had access to a German-speaking psychologist, outside the EDS, between May and November 2010. He noted that the consultations with the psychologist had come to an end not, as alleged by the State in its pleadings, because the applicant no longer wished to attend them, but because of late payment by the Belgian State of the psychologist’s fees and expenses. The consultations with the psychologist had, however, resumed in July 2014. The president then noted that, until April 2010, the applicant had benefitted from the presence of and care provided by a German-speaking nurse, that that nurse had in the meantime left the Paifve EDS, but that since August 2014 he had been authorised to accompany the applicant on outings. Lastly, the order noted that the applicant had had contacts with a German-speaking social worker, but that he had declined the latter’s services in February 2014. 46.     With regard to the main request, the president held that he did not have jurisdiction to order the applicant’s release, as only the social protection bodies had power to do so. With regard to the subsidiary request, the president noted that the applicant had not had access to the mental health treatment required by his condition, and that there was prima facie a violation of his right of access to health care. His situation amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. In consequence, the president ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary for the applicant, subject to a penalty in the event of non-compliance, and to put in place the care routinely provided to French-speaking detainees suffering from a mental illness similar to that of the applicant. 47 .     On the basis of the information produced, no appeal has been lodged against this order. According to the applicant’s representative, the Belgian State appointed a German-speaking psychiatrist and psychologist, who visited the applicant several times. However, these visits stopped at the end of 2015. F.     Claim for damages 48.     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. 49 .     By a judgment of 9 September 2016, the French-language Brussels Court of First Instance held the fact of having failed to provide the applicant with psychological treatment in his mother tongue between 2010 and 2014 to be negligent. It held, in particular: “It is undeniable that the psychiatric and psychological treatment which [the applicant] must enjoy 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-psychiatric 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 merely on account of the fact that it is not available 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 steps to correct it. In addition, it has produced no evidence of the least action 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 genuine 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 allow for his release. The mere fact of having been detained for an indefinite period without appropriate care 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 allow for minimisation of the Belgian State’s negligent attitude towards a person who suffers from a mental disorder, whose discernment is, by assumption, uncertain. By the same token, at the risk of setting aside 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 care for his condition.” 50 .     Finding that this absence of treatment had caused mental suffering to the applicant, the court ordered the State to pay him 75,000 euros (“EUR”), an amount assessed ex aequo et bono , in compensation for the period for the January 2010 to October 2014. 51 .     According to information provided on 19 June 2017 by his representative, the applicant was due to lodge an appeal against this judgment. He challenges the period accepted by the court and argues that the lack of treatment pre-dated 2010; he also complains about a lack of treatment in 2016 and the decision to award compensation ex aequo et bono rather than on a daily basis. II.     RELEVANT DOMESTIC LAW [AND PRACTICE] 52.     The relevant domestic law and practice and the provision of care to offenders placed in preventive detention are set out in detail in the W.D.   v.   Belgium judgment (no. 73548/13, §§ 35-70, 6 September 2016) . 53.     In the present case, the applicant was placed in preventive detention pursuant to sections 7   and 21 of the Social Protection Act. At the relevant time, these provisions were worded as follows: 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.” ...” Article 21 “Persons convicted of crimes who, in the course of their imprisonment, are found to be suffering from a mental disorder or a severe mental disturbance or defect making them incapable of controlling their actions, may be placed in preventive detention by virtue of a decision by the Minister of Justice, issued following an opinion to that effect by the Social Protection Board. Preventive detention shall take place in the institution designated by the Social Protection Board, in accordance with section 14; sections 15 to 17 shall also be applicable. If, before expiry of the sentence, the convicted person’s mental state has improved sufficiently that preventive detention is no longer required, the Board shall take formal note of this situation and the Minister of Justice shall order the convicted person’s return to the prison in which he or she was previously held. For the application of the law on conditional release, time spent in preventive detention shall be equated with imprisonment.” 54.     In the present case the applications to the CDS for release were based on section 18 of the Social Protection Act. This provided: “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 a trial basis, 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 the rejection becoming final. ...” 55.     From 1 October 2016 the Social Protection Act was replaced by the Law of 5 May 2014 on preventive detention (see W.D.   v. Belgium , cited above, §§ 79-86). THE LAW [I.     ADMISSIBILITY A.     Submissions of the parties 56.     The Government raised a preliminary objection based on the non-exhaustion of domestic remedies by the applicant. In order to complain about the conditions of his preventive detention, the applicant ought firstly to have requested, in application of Article 584 of the Judicial Code, an urgent measure from the president of the court of first instance, sitting as the urgent applications judge, who had jurisdiction to ensure that each person’s subjective rights were respected. Although the order of 12 May 2010 by the President of the Liège Court of First Instance had dismissed the applicant’s claims, this was explained by the fact that that court did not have jurisdiction in the area of applications for release. The order of 10   October 2014 by the president of the French-language Brussels Court of First Instance demonstrated the effectiveness of the urgent applications procedure. Secondly, the applicant could have brought an action for damages on the basis of Article 1382 of the Civil Code. The Government submitted examples from the case-law showing that the Belgian State had already been ordered, through this procedure, to pay compensation to persons detained in psychiatric units or to provide specialist treatment. 57.     The applicant considered that it was not necessary to exhaust the remedies referred to by the Government before applying to the Court. He pointed out, firstly, that in 2010 he had applied to the President of the Liège Court of First Instance but that the latter had found that he did not have jurisdiction (see paragraph   30 above). He had then brought proceedings against the Belgian State before the president of the French-language Brussels Court of First Instance in 2014; in those proceedings the Belgian State had argued that his case was inadmissible and that his claim had no merits. The applicant argued that the latter position contradicted the Government’s position before the Court. In any event, he pointed out that the Court had already examined a similar plea of inadmissibility and dismissed it in, among other judgments, Van Meroye v. Belgium (no.   330/09, §§   106-108, 9   January 2014). Furthermore, the applicant explained that he had filed a claim for compensation on the basis of Article   1382 of the Civil Code, which was currently pending before the domestic courts. B.     The Court’s assessment 58.     As regards the first limb of the Government’s preliminary objection, the Court observes that the applicant had instituted and brought to a conclusion the procedure before the bodies that had jurisdiction under the Social Protection Act to review the lawfulness of his preventive detention and to order, as necessary, his release or his transfer to an appropriate establishment. Following the negative decision by the CDS, he brought his complaints before the CSDS, then before the Court of Cassation, which dismissed his appeal on points of law in a judgment of 8   September 2010 (see paragraphs   24 and 31-34 above). In addition, before applying to the Court the applicant had also applied to the President of the Liège Court of First Instance, who held in an order of 12   May 2010 that he did not have jurisdiction (see paragraphs 29-30 above). The applicant did not appeal against that order. 59 .     The Court reiterates that in the case of Claes v. Belgium (no.   43418/09, §   79, 10 January 2013) it had noted that persons in preventive detention, whether applying to the social [protection] bodies or the courts, were pursuing the same aim, which was to complain of the inappropriate nature of the detention in a psychiatric wing and to have the State ordered to find an adequate solution. It had also noted that both the social protection bodies and the courts could, in principle, put an end to the situation complained of by those detainees. 60.     Thus, for the same reasons as those set out in the above-mentioned judgment ( Claes , cited above, §§ 79-83; see also Oukili v. Belgium , no.   43663/09, §§ 29-33, 9 January 2014; Moreels v. Belgium, no.   43717/09, §§   29-33, 9   January 2014; Gelaude v. Belgium , no.   43733/09, §§ 26-30, 9   January 2014; and Saadouni v. Belgium , no.   50658/09, §§ 37-41, 9   January 2014), the Court considers that the applicant has done everything that could reasonably be expected of him to raise his complaints before the domestic courts prior to applying to the Court. 61.     With regard to the Government’s objection of non-exhaustion of the compensatory remedy, the Court notes that the applicant filed a negligence claim against the Belgian State after his application had been lodged with the Court. That claim led to the judgment of 9 September 2016, delivered by the French-language Brussels Court of First Instance, which held that the lack of treatment provided to the applicant between 2010 and 2014 had been negligent and had caused him mental suffering; it ordered the State to pay him EUR 75,000 in compensation (see paragraph 49 above). The applicant has apparently appealed against that judgment (see paragraph 51 above). 62.     The Court reiterates that a remedy that is solely compensatory cannot be regarded as sufficient when dealing with assertions of conditions of preventive or other forms of detention that are allegedly contrary to Article   3, in that such a remedy does not have “preventive” effect, since it is incapable of preventing the continuation of the alleged violation or enabling detainees to secure an improvement in their conditions of detention (see Torreggiani and Others v. Italy , nos.   43517/09 and 6   others, § 50, 8   January 2013, and the cases referred to therein). 63.     Similarly, the Court reiterates that, in principle, with regard to complaints under Article 5 § 1 of the Convention, only remedies aimed at securing an end to the deprivation of liberty in respect of which a violation is alleged under this provision are to be used for that purpose. Equally, an action whose aim is to secure compensation for the damage resulting from the impugned deprivation of liberty or punishment of the individual(s) responsible for it does not constitute a domestic remedy to be exhausted in respect of such a complaint (see De Donder and De Clippel v. Belgium , no.   8595/06, §   100, 6 December 2011). 64.     Having regard to the above considerations, the plea of inadmissibility must be rejected. 65.     Nevertheless, the Court considers, having regard to the favourable outcome obtained by the applicant at first instance (see paragraph 49 above), that the question arises whether the applicant may still claim to be the victim of a possible violation of the Convention. 66.     The Court reiterates that it falls first to the national authorities to redress any alleged violation of the Convention and that the question whether an applicant continues to have victim status falls to be determined at the time of the Court’s examination of the case, taking into account not only the position at the time when the application was lodged with the Court but of all the circumstances of the case, 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). 67.     In this connection, it also notes that in addition to the award of financial compensation referred to above, the president of the French-language Brussels Court of First Instance had previously, by an order of 10   October 2014, ordered the Belgian State to appoint a German-speaking psychiatrist and medical auxiliary, subject to a penalty in the event of non-compliance, and to put in place the care routinely provided to French-speaking detainees suffering from a mental illness similar to that of the applicant (see paragraph 46 above). In addition, the court noted that the applicant’s situation amounted to a violation of Articles 3 and 5 § 1 of the Convention (see paragraph 49 above). 68.     The Court reiterates that a favourable decision or measure is not in principle sufficient to deprive applicants of their victim status 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, §§ 179-180, 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. 69.     The Court notes that in the present case the domestic courts explicitly recognised that there had been a violation of the Convention. As to whether there has been redress which is “appropriate” and “sufficient”, it notes that the national authorities, following the communication of the application, admittedly took decisions in the applicant’s favour, by ordering that German-speaking professionals be made available and awarding him financial compensation for the prejudice sustained. However, the Court cannot overlook the fact that this availability lasted for only a few months, or that the situation giving rise to the application dates back to the beginning of the applicant’s preventive detention and had been formally noted by the CDS since 2006 (see, mutatis mutandis Y.Y. v. Turkey , no.   14793/08,   §§   52 ‑ 55, ECHR   2015 (extracts)). Furthermore, the financial compensation awarded at first instance covers only the period from January 2010 to October 2014. This cannot therefore be regarded as full reparation, especially as the judgment of 9   September 2016 was delivered at first instance and is not final (see paragraph 51 above). 70.     It is accordingly appropriate to consider that the applicant has not lost his victim status. 71.     The Court further notes that the complaints under Articles 3 and 5   §   1 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further finds that they are not inadmissible on any other grounds. They must therefore be declared admissible. II.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 72.     The applicant complained that his detention without psychological and psychiatric treatment in the social protection facility where he had been placed in preventive detention, 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 inhuman or degrading treatment or punishment.” 73.     The Government contested that argument. A.     Submissions of the parties 1.     The applicant 74.     The applicant argued that his mental health had deteriorated on account of the total absence of treatment, as confirmed by several psychiatrists, who had indeed alerted the authorities to the lack of prospects for positive developments in his situation. However, only therapy could legitimise the applicant’s deprivation of freedom. Without it, his detention amounted to inhuman and degrading treatment, contrary to human dignity. In short, the applicant was in limbo: he was detained on account of his dangerousness and his mental-health condition; in order to stop being dangerous, he needed to receive treatment; however, the applicant had not been provided with any treatment since being placed in preventive detention; as the social protection bodies had found that they did not have power to oblige the executive to offer him therapy, the applicant would therefore be detained for life. 75.     According to the applicant, the Belgian State had been at fault from the outset of his preventive detention in 2003, in that he had been left without the treatment required by his mental-health condition. Indeed, the Government could not deny that the Paifve EDS employed no care staff who could speak German; in consequence, it was impossible to put in place any form of therapy for the applicant. With regard to the German-speaking social worker, the applicant had met her on only two or three occasions   –and not thirteen times as claimed by the Government   –   and she had stopped seeing the applicant because she had not been paid for doing so, and because the applicant had no longer requested her services. The Dutch-language nurse who spoke German had left the Paifve EDS in 2012. In any event, what the applicant needed was to meet a German-speaking psychologist and psychiatrist, as the CSDS had acknowledged in its decision of 22 July 2014. 76.     Furthermore, it was incorrect to state that the applicant had refused care, given that he had never been offered treatment or therapy sessions. This reality had been confirmed by the CSDS in its decision of 22 July 2014. The persons he had met in Verviers Prison in 2007 had been entrusted only with a fact-finding task, and there had therefore been no therapeutic aspect to those meetings. In addition, it was for the State to put in place the necessary treatment, and not for the applicant himself to indicate what treatment he required. The authorities had been aware of the applicant’s situation since the beginning of his preventive detention, and they had taken no action since that time. 77.     Lastly, the applicant considered that there was nothing in the case file to support the assertion that, in practice, his dangerous behaviour had persisted and that his continued detention was justified. On the contrary, his good behaviour had been confirmed in various reports by the psychosocial service in the Paifve EDS; he had never had any problems with the staff or the other detainees and had never been the subject of a report or a disciplinary proceedings. He worked peacefully in the Paifve EDS and had made progre