The ECHR has found a violation of the requirements of Article 3, subparagraph "e" of paragraph 1 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the period from 2004 to 2017.

Заголовок: The ECHR has found a violation of the requirements of Article 3, subparagraph "e" of paragraph 1 o Сведения: 2019-10-02 14:26:18

ECHR judgment of January 31, 2019 in the case of “Ruman (Rooman) v. Belgium” (application No. 18052/11).

In 2011, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Belgium.
The case has successfully examined an application about the obligation to use all means to remove linguistic obstacles in order to treat a mental illness of a person in a hospital. In the case there was a violation of the requirements of Article 3, subparagraph "e" of paragraph 1 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect to the period from 2004 to 2017, with respect to the subsequent period the requirements of this article of the Convention for the Protection of Human Rights and Fundamental Freedoms were violated were not.


Circumstances of the case


The applicant suffered from a severe mental illness, which prevented him from monitoring his actions. Since 2004, he was in a specialized institution, which, however, did not have doctors who spoke German, and the applicant spoke only that language (one of the three official languages ​​of Belgium). The Social Protection Commission has repeatedly pointed out that communication difficulties were tantamount to depriving the applicant of any treatment in relation to his mental disorder (which, inter alia, impeded consideration of the possibility of his release), but the recommendations of this commission were implemented by the institution with a delay or not completely. The court, authorized to consider such cases, made similar conclusions in 2014.

In a judgment of July 18, 2017, the Chamber unanimously concluded that there had been a violation of Article 3 of the Convention in connection with the failure to provide the applicant with adequate treatment for 13 years and with six votes in favor, with one “against” that there was no violation of paragraph 1 Article 5 of the Convention, indicating that barriers to the provision of adequate assistance were not related to the very nature of the institution. At the request of the applicant, the case was referred for review to the Grand Chamber of the European Court.

Since August 2017, various measures have been taken against the applicant: monthly appointments with a psychologist, providing an opportunity to visit a psychiatrist who speaks German, assistance from an interpreter during monthly appointments with a therapist. However, the applicant turned out to be immune to treatment (he neglected the possibility of consulting a psychiatrist and refused to involve an external psychologist in the work of the institution’s psychosocial team).

In 2016, a new law on hospitalization entered into force, which focused on the provision of care to persons in hospital.


QUESTIONS OF LAW


Regarding compliance with Article 3 of the Convention (substantive aspect). The question of a purely linguistic nature can be decisive in deciding whether the psychiatric care provided or available was appropriate, but only if there were no other factors that could compensate for the lack of communication, and especially if the interested person cooperated.

The period from 2004 to 2017. With respect to this period, the Grand Chamber of the European Court has essentially agreed with the arguments of the Chamber of the European Court and finds no compensating factors. To justify the lack of psychotherapeutic observation, the authorities limited themselves to noting, on the one hand, that the applicant’s danger made it impossible to transfer him to an institution where they spoke German, but that there were less security measures in place, and that, on the other hand, in the institution in which the applicant was detained, there were no German-speaking doctors, nor did the authorities consider the possibility of using other means.


RESOLUTION


In the case there was a violation of the requirements of Article 3 of the Convention (adopted by 16 votes in favor, with one against).

The period is from August 2017. Firstly, the Belgian authorities showed a real intention to rectify the situation after the adoption of the aforementioned judgment of the European Court of Justice by taking concrete measures that a priori met the definition of “adequate medical care”.

Secondly, the applicant did not cooperate sufficiently with the medical staff and was immune to the assistance offered (namely, that he was “at the disposal” of a psychiatrist from another institution). If the lack of a treatment plan is certainly regrettable, then the fact remains that the applicant did not even ask for the advice of a psychiatrist. Of course, on the one hand, since the applicant was a vulnerable person, cooperation on his part was only one of the factors to be taken into account when analyzing the effectiveness of the assistance provided, while at the same time, using the assistance of a lawyer in all proceedings at the domestic level, the applicant could show more openness regarding in relation to the authorities' efforts adopted in response to the judgment of the Chamber of the European Court. Of course, on the other hand, the applicant had the right not to accept the treatment offered to him, but in this case he carried the risk of lowering the chances of release.

Thirdly, the short-term period that has passed since these changes does not allow us to evaluate its consequences.

Thus, despite some organizational shortcomings, the severity necessary for Article 3 of the Convention to be applicable was not achieved in the present case.


RESOLUTION


There was no violation of the requirements of Article 3 of the Convention (adopted by 14 votes in favor, with three against).

Regarding compliance with Article 5 § 1 of the Convention. (a) Clarification of general principles regarding the obligation to provide treatment in the event of hospitalization. Even taking into account the modern interpretation, Article 5 of the Convention does not prohibit incarceration based on incapacity (unlike what the UN Committee for the Protection of the Rights of Persons with Disabilities suggests). However, deprivation of liberty in accordance with subparagraph "e" of paragraph 1 of Article 5 of the Convention must fulfill a dual function: on the one hand, the function of social protection, and on the other, a therapeutic function in the interests of an insane person.

The first function a priori cannot justify the absence of measures aimed at the implementation of the second. Regardless of the place, any deprivation of liberty of persons suffering from mental disorders should be aimed at curing the disease or improving the patient's condition, as far as possible, including, if necessary, reducing or neutralizing the public danger of the person in order to prepare for his possible release.

The provision of appropriate and individualized treatment is an integral part of the concept of “appropriate institution”: it is possible that a priori structure of an inappropriate nature, for example, a prison, may ultimately turn out to be quite acceptable given the assistance provided or, conversely, an institution specializing in psychiatric care, may not be able to provide the necessary assistance. Just “accessing” doctors, medical advice, or drugs is not enough in this case.

However, the role of the European Court is not to analyze the content of the offered and provided medical care. It is important that the Court can verify the availability of “individual treatment”, taking into account the particular mental state of the hospitalized person, in order to prepare the latter for possible subsequent reintegration. In this area, the Court provides the authorities of the respondent states with certain limits of discretion, both in form and content of treatment.

Finally, in the event of problems preventing the applicant’s treatment, the possible negative consequences for the development of his condition are not necessarily sufficient to conclude that there has been a violation of Article 5 § 1 of the Convention, provided that the authorities have taken adequate measures.

The intensity of the Court's control may differ depending on whether a complaint has been lodged with a violation of Article 3 of the Convention, which presumes a certain level of severity, the assessment of which is relative and depends on all circumstances of the case, or a violation of Article 5 § 1 of the Convention, in the context of which priority is given to the question of the appropriate nature of the institution (which is necessary to maintain a link between hospitalization and the purpose it pursues). A finding that there was no violation of Article 3 of the Convention does not automatically mean that there was no violation of Article 5 § 1 of the Convention, while a finding of a violation of Article 3 of the Convention due to a lack of adequate assistance could lead to a violation of Article 5 of the Convention for the same reasons.

Of course, subparagraph "e" of paragraph 1 of Article 5 of the Convention does not guarantee the right of a hospitalized person to receive treatment in their own language. However, the need for individual and appropriate treatment of hospitalized persons is emphasized in the UN Convention on the Rights of Persons with Disabilities of 2006 and in the Recommendation of the Committee of Ministers of the Council of Europe N Rec (2004) 10 on the protection of the human rights and dignity of persons suffering from mental illness, which requires, in particular, the drafting of a personal and appropriate treatment plan, after consultation, as far as possible, with the person concerned. Nevertheless, the Court understands the importance of the linguistic factor in order for the hospitalized patient to receive the necessary information (except in cases where the vulnerability of the patient will increase as a result).

(b) Application of the above principles in the present case. The period from 2004 to 2017. Even if the German language has the status of the state language in Belgium, few people speak it in the region where the institution where the applicant was held is located. In addition, relevant legislation does not require such institutions to hire French or German speakers.

However, the applicant’s right to speak, voice his thoughts and receive medical assistance in German was clearly recognized by the Social Security Commission in 2009, even if the commission subsequently appeared to conclude that this aspect was not decisive in the development of the condition the applicant, and refused to issue orders regarding the administration of the institution or to impose any penalties. The European Court cannot make assumptions about what the results of treatment using the German language could lead to: it is forced to only state the absence of such treatment. Otherwise, the possible incurability of the disease of the person concerned does not reduce the obligation to provide treatment.

In view of the applicant's treatment and release requirements, the Belgian authorities should have found means of solving the problem of the lack of communication between the treating staff and the applicant. The Court should not express itself in general terms about possible decisions that could be considered sufficient: their choice falls within the discretion of the authorities of the respondent States.

In the present case, the individual measures taken by the Belgian authorities did not fit into the treatment plan. The question of whether the applicant could be treated in Germany was examined by the Belgian authorities, but its outcome is unknown. However, in Belgium itself, the resolution of the problem associated with the use of the German language does not seem unrealistic, since this is one of the official languages ​​of the country.


RESOLUTION


In the case, there was a violation of subparagraph "e" of paragraph 1 of Article 5 of the Convention (adopted unanimously).

The period is from August 2017. Given that the applicant was considered capable of understanding his actions and giving consent, the Belgian law prohibited the use of a particular treatment measure against his will. However, his ability to recognize actions was reduced due to mental illness, which increased the applicant's vulnerability. The duty of the authorities in this case was to try to integrate the applicant as much as possible into an individual treatment plan that could lead to an improvement in his state of health.

In the present case, the authorities took a multidisciplinary and a priori consistent approach between the various actors in order to individualize the applicant's treatment depending on his communication needs and his illness. A number of services using the German language (providing the assistance of a psychiatrist, psychologist and social worker who spoke German) can facilitate communication and building trust.

In addition, the applicant's agent or representative, if necessary, plays an active role to help the applicant exercise his right to consent and follow the treatment plan. However, despite the assistance of his representatives, the applicant refused to cooperate with the treating staff to develop a treatment plan.

In this situation, in the absence of, for example, information about the refusal of a German-speaking psychiatrist to meet with the applicant and draw up an adapted treatment plan with him, the Court considers that the obligation to use the funds entrusted to the authorities was fulfilled.

Briefly speaking, taking into account, in particular, the significant efforts made by the authorities, a priori the consistent and adapted nature of the medical supervision that is now available to the applicant, the short duration of the study period, and the fact that the applicant continues to be immune despite the assistance of his representatives, his hospitalization was consistent with the desired therapeutic goal.

The Court clarifies, however, that, given the applicant’s vulnerability and low decision-making ability, the Belgian authorities are still under an obligation to take all necessary measures to ensure psychiatric treatment, psychologist supervision and social support in the medium to long term. capable of providing the applicant with hope of future release.


RESOLUTION


There was no violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted by 10 votes in favor, with seven against).


COMPENSATION


In application of Article 41 of the Convention. The Court awarded the applicant EUR 32,500 in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.

 

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