CEDH · CASELAW;CLIN;ENG — 9 janvier 2024

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Portugal - 30138/21 Judgment 9.1.2024 [Section IV] Article 3 Degrading treatment Inhuman treatment Preventive detention of a mentally ill person, exempted from criminal responsibility, at a prison hospital’s psychiatric unit, in inadequate conditions and without appropriate assistance and care: violation Article 5 Article 5-1-e Persons of unsound mind Preventive detention of a mentally ill person, exempted from criminal responsibility, at a prison hospital’s psychiatric unit, in inadequate conditions and without appropriate assistance and care: violation Article 46 Respondent State to take general measures to address structural problems in the context of enforcing preventive detention measures in prison facilities Facts – The applicant was sentenced to preventive detention after he was declared not criminally responsible, owing to his mental disorder (paranoid schizophrenia), for criminal offences he was convicted of. He was detained in the psychiatric unit of the Caxias Prison Hospital from 14 April 2021 until his transfer on 18 October 2021 to a mental health facility. The applicant complained of his detention in that prison hospital, the conditions and lack of adequate medical care. Law – Article 3 (substantive aspect): The Court drew on report findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), the National Preventive Mechanism (NPM) and other relevant United Nations human rights monitoring bodies, which had identified mental health-related issues as one of the main challenges facing the prison system in Portugal. Those reports shed light on several general problems associated with detention conditions and healthcare provision in prisons for detainees with mental illnesses, who in principle should be placed in suitable facilities for psychiatric treatment but were not because of a lack of spaces, as in the applicant’s case. With particular reference to the situation in the Caxias Prison Hospital’s psychiatric unit, the NPM had pointed out the inadequacy of the accommodation, the lack of staff and of clinical adequacy. Similarly, according to the CPT, overcrowding continued to be a serious problem that negatively affected the living conditions, staff-inmate relations and the maintenance of good order in that prison hospital and patients in that situation lacked an adequate therapeutic environment. Those findings and conclusions called into question the suitability of that facility for the detention of seriously mentally ill patients and, in the applicant’s particular case, as to the appropriateness of the medical treatment he had received there. Furthermore, the Court noted the concerns expressed by the Portuguese General Directorate for Reintegration and Prison Services in its 2021 annual report that although the Caxias Prison Hospital’s psychiatric unit had been intended for the temporary detention of regular inmates with mental health problems, owing to the shortage of spaces in the regular mental health institutions it had been housing on a permanent basis mentally ill persons subject to preventive detention who had been in need of psychiatric treatment. That situation was noted by the NPM as creating great difficulties for the prison system, making it difficult to respond appropriately to the psychiatric and therapeutic needs of people with psychiatric disorders who were imposed a preventive detention. In that connection, the Government had not provided any evidence that the applicant had received individualised, continuous and specialised care and follow-up treatment, and that appropriate therapy and medication had been prescribed and provided to him. They had failed to demonstrate that he had received the therapeutic treatment required by his condition, as it had not been shown that the administration of drugs with long-lasting effects had been complemented by the implementation of a comprehensive treatment strategy. The Court therefore accepted the applicant’s account of the conditions of his detention. The very nature of the applicant’s psychological condition had rendered him more vulnerable than the average detainee and his detention in the conditions described above might have exacerbated to a certain extent his feelings of distress, anguish and fear. The authorities’ failure to provide the applicant with appropriate assistance and care had unnecessarily exposed him to a risk to his health and must have resulted in stress and anxiety. Conclusion : violation (unanimously). Article 5 § 1: The applicant’s detention had been a measure decided in accordance with a procedure prescribed by law based on his mental disorder and the danger he had posed to himself and others and was therefore covered by Article 5 § 1 (e). The Caxias Prison Hospital was primarily aimed at serving the ordinary prison community suffering from mental illness and was not part of the health system. The mere fact that the applicant had not been placed in an appropriate facility did not, per se , render his detention unlawful. However, keeping detainees with mental illnesses in the psychiatric ward of ordinary prisons pending their placement in a proper mental health establishment, without the provision of sufficient and appropriate care was not compatible with the protection ensured by the Convention for such individuals. In view of its findings under Article 3 the Court was not convinced that the applicant had been offered appropriate treatment or that the therapeutic environment he had been placed in had been suitable for his condition. In that connection, it reiterated that the level of care provided must go beyond basic care. Mere access to health professionals, consultations and the provision of medication could not suffice for treatment to be considered appropriate and thus satisfactory under Article 5. Furthermore, the Court noted the absence of evidence of a therapeutic plan for the applicant and, having regard to his state of health and special vulnerability, the impact his detention had had on him, namely in aggravating his state of confusion and fear owing to the restrictive and anti‑therapeutic environment that detention in a prison facility entailed. Accordingly, the applicant’s deprivation of liberty in that facility had not been lawful. Conclusion : violation (unanimously). Article 46: The infringements found in the present case were not attributable solely to the applicant’s personal circumstances but were the result of a structural problem which fully justified the imposition of general measures under Article   46. Although the positive steps recently taken in national legislation to favour the placement of persons with mental disorders in mental health facilities in the wider health system were a good starting-point, the enactment of legislation would not in itself solve the problems; effective measures were needed to implement and enforce the provisions thus introduced. To that end, the Court encouraged the Government to take an approach in keeping with the spirit of the protection system set up by the Convention. Necessary steps had to be taken as a matter of urgency in order to secure appropriate living conditions and the provision of suitable and individualised forms of therapy to mentally ill persons who needed special care owing to their state of health in order to support their possible return and integration into the community. The respondent State subject to supervision by the Committee of Ministers, remained free to choose the means by which it would discharge its legal obligation under Article 46. Article 41: EUR 34,000 in respect of non-pecuniary damage. (See also Sławomir Musiał v. Poland , 28300/06, 20 January 2009, Legal Summary ; Rooman v.   Belgium [GC], 18052/11, 31 January 2019, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .