CASE OF AERTS v. BELGIUM
Preliminary objections rejected (victims - out of time);Violation of Art. 5-1;No violation of Art. 5-4;Violation of Art. 6-1;No violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
R. Pekkanen
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. 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. 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. 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.” 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.” 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: “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…” “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. …” “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. …” “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.” “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.” “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.” “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. …” “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.” 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; in each case the State complied. 27. Hearing for the first time an appeal by the State against such an injunction, the Liège Court of Appeal, in a judgment of 18 January 1993 (M. v. Belgium judgment) upheld a decision that it was unlawful to continue to hold a detainee at Lantin despite the Mental Health Board’s decision, in the following terms: “Whereas the Mental Health Board noted on 26 February 1991 that the doctor responsible for the wing had written in his report of 22 February 1991 that: – the inmates’ mental health was deteriorating on account of the conditions they found themselves in on the wing, where they were obliged to mix with a constant stream of drug addicts, who revived a craving for drugs among some of them; – there was a serious risk of an irreversible deterioration of the patient’s mental condition if he was left any longer on the wing, where it was obvious that he could not receive appropriate treatment; – the failure to execute the detention order within a reasonable time invalidated the detainee’s detention, which became unlawful, and a reasonable time had expired. Whereas the judge responsible for urgent applications rightly ordered payment of a penalty in default of compliance with his decision; Whereas, indeed, the attitude of the appellant, which had shown some reluctance to execute the earlier decisions, justified such a measure…” 28. On a visit to Belgium from 14 to 23 November 1993 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) went to several places of detention, including Lantin Prison. In its report, made public on 14 October 1994, it noted in particular with regard to the psychiatric wing at Lantin: “188. The psychiatrist mentioned of his own accord the problems and the inadequacies of the regime on the psychiatric wing. All the patients with whom the delegates spoke complained about their lack of contact with qualified staff, although they mentioned the positive attitude of the prison staff. 189. Contact with the psychiatrist was extremely basic. Some patients saw him once every ten days; others, less frequently – for example, one patient who had been on the wing since July 1992 had seen him six times; another, on the wing since March 1993, who was obviously depressed and suicidal, had seen him once; another, who had been transferred to the wing in May 1993, twice. It appears that the consultations are extremely brief. In addition, some patients have claimed that they had to stand up during consultations. 190. During our visit several patients under detention orders were waiting to be transferred to a Social Protection Centre. One had been designated for transfer to Tournai since 22 December 1992 and had been on the wing for over a year (since 22 September 1992), while others had been waiting for their transfer for several months. It is obvious that keeping mental patients detained for lengthy periods in the conditions described above carries an undeniable risk of causing their mental state to deteriorate. The CPT delegation was informed that, at the time, there was one institution specifically designated as a Social Protection Centre, at Paifve, and six other institutions (either hospitals or prisons) with a section reserved for people subject to detention orders. However, it appears that there are more such people than there are places at these institutions. 191. The psychiatric wing admits patients needing psychiatric observation and/or care, but it has neither the facilities nor the staff appropriate to a psychiatric hospital. The standard of care of the patients on the psychiatric wing fell, in every respect, below the minimum acceptable from an ethical and humanitarian point of view. 192. Consequently, the CPT recommends that the Belgian authorities should take, without delay, the necessary measures to: – significantly increase the medical staff of the wing, which should include at least the equivalent of a full-time psychiatrist; – assign sufficient numbers of qualified, psychiatrically trained nursing staff to the wing; – ensure that qualified nursing staff are on stand-by on the wing at night and end the system of night supervision by prisoner-helpers; – put in place personalised programmes of therapeutic activities involving the full range of treatment approaches (psychological, social and occupational); – create a personalised therapeutic environment where material conditions are concerned (personal effects, wardrobes, sitting-rooms, washrooms separated from living quarters, etc.); – more generally, make significant improvements to the physical living conditions. 193. The CPT further recommends the Belgian authorities to explore the possibility of replacing the dormitory with bedrooms for one or two patients. 194. Lastly, the CPT recommends that the Belgian authorities should make it a high priority to find a solution to the above-mentioned problem of the transfer of patients subject to detention orders.” 29. In an interim report made public on 3 May 1995, in reply to the CPT’s report of 14 October 1994, the Belgian Government stated that it was incorrect to say that prisoners on the psychiatric wing at Lantin were left under the sole supervision of prisoner-helpers: two prison officers belonging to the staff of the wing were present at night. 30. The Belgian Government filed a follow-up report which was made public on 21 February 1996. This contained, inter alia, the following comments on the above-mentioned CPT report (see paragraph 28 above): “[re paragraph 192 of the CPT’s report] It is important to note that a guidance and treatment unit (UOT) was created at Lantin psychiatric wing in 1993. This unit, which has been operational since 9 December 1993, comprises a psychiatrist, a deputy director, two psychologists, a social worker and an administrative assistant. The unit has organised a scheme involving co-operation with a social work college which trains prison tutors. As a result, trainee tutors from this college will be able to do the practical part of their course in Lantin Prison, under the supervision of the UOT staff. These trainee tutors will be responsible for designing a work structure capable of being expanded to accommodate other contributions. They will focus essentially on the psychiatric wing and the women’s wing. Their aim will be to introduce occupational activities on the psychiatric wing, such as an occupational therapy workshop, an oral expression workshop, sport, etc…. In addition to the creation of the UOT, referred to above, steps are being taken to recruit a psychiatric nurse and a psychiatrist, for thirty hours a week. These trained staff will be assigned exclusively to the psychiatric wing. [re paragraph 193 of the CPT’s report] Only dormitory accommodation permits continuous (24-hour) surveillance; checks on cells could be made, at most (where the rules require special surveillance) once every fifteen minutes. The Prison Service considers that it is for the doctor in charge of the psychiatric wing to decide whether, in view of each inmate’s particular condition, he should be placed in the dormitory or in a cell. Therefore, both possibilities should exist side by side. Moreover, it should be remembered that the wing does have a small number of cells (individual, twin or three-bed). [re paragraph 194 of the CPT’s report] It should be explained at the outset that, under section 14 of the Act of 1 July 1964 ‘for the protection of society against mental defectives and incorrigible offenders’, mental health boards have the power to decide, quite independently, where a person is to be detained. These administrative authorities, one of which exists for each psychiatric wing, are totally autonomous and have judicial powers. Thus, for instance, they can decide to release someone without conditions or on probation. A release order may be challenged by the public prosecutor. In this event, the case file is referred to a higher mental health board for a ruling. A decision not to release someone, on the other hand, may be challenged by way of an appeal to the Court of Cassation. The boards place persons subject to detention orders in special institutions run by the Ministry of Justice (the Paifve Social Protection Centre (EDS) and the mental-health sections of Merksplas and Turnhout Prisons) or in institutions run by the Walloon Region (Mons EDS for women and Tournai EDS for men) or in private psychiatric hospitals which agree to admit them. It appears that there are particular problems with implementing mental health board placement decisions in the French Community; problems of lack of money and of places. Historically, the mental health boards in the south of the country have been able to send people subject to detention orders to Mons EDS (in the case of women) and Tournai EDS (in the case of men). These institutions, which were originally run by the national Ministry of Public Health, and are now run by the Walloon Region, bill the Ministry of Justice to defray the cost of looking after the detainees placed with them. However, over a very short period and without prior notice, these charges, which are fixed by the National Institute of Sickness and Disability Insurance, have increased very sharply, so that the amount allocated in the budget to cover them has turned out to be insufficient. It was necessary to request a further allocation, but this is granted only for the following financial year. As regards the problems of capacity, we must point out that the number of places in the Paifve and Tournai Social Protection Centres is such that, for several years now, detainees have spent several months on prison psychiatric wings before they can actually be transferred to the EDS designated by the relevant mental health board. They are therefore ‘placed’ on a waiting-list in chronological order. The fact that it is impossible to admit them immediately to their designated institution has led some of their lawyers to apply, almost systematically, to the president of the relevant court of first instance for an injunction to force Belgium to implement the boards’ decisions. While the Belgian State has had orders made against it at first instance in several of these cases – orders backed up by penalties – it is noteworthy that this has not been the case on appeal, where, for instance, it has been held (see Civ. Liège, 1 October 1993) that ‘it is not for the ordinary courts to substitute their decision for that of the administrative authority and to order a detainee to be transferred regardless of the problems which that will pose for the administration, such as the choice of another State institution or, exceptionally, a private one’ and that, ‘although the Social Protection Act is not being fully complied with, the fact that the respondent is forced to mix with persons imprisoned under the ordinary criminal law cannot be likened to inhuman or degrading treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms’. Similarly, an appeal decision of the same court of 16 February 1993 held that the Prison Service could rely on the defence of force majeure as it had neither the premises nor the staff to comply properly with the Social Protection Act. Although no such case is currently pending before the Court of Cassation, it should be pointed out that on 8 August 1994 a person subject to a detention order lodged an application against Belgium with the European Commission of Human Rights. This case is still pending at the present time. It should also be pointed out that, in theory, Paifve EDS could provide sixty more places. This extra capacity can be fully utilised only if considerable renovation work on the disused building is carried out and the staff is increased. The renovation project is planned for the medium term (1999–2000). If the spare capacity did become available, the total number of places might attain the ‘proper’ level. However, this increased capacity would obviously not save the boards having to send people to Tournai EDS, which has specialised equipment and staff. It is important to retain that possibility since Ministry of Justice and private institutions alone are totally insufficient to meet the demand. Finally, it must be pointed out that the various federal and regional authorities involved in the problem of placing and treating persons subject to detention orders will be liaising in an attempt to find solutions. These negotiations will be organised by a working party to be set up by the Ministry of Justice, which will include representatives of the different parties involved.”