JUSTICE FOR ALL
years without appropriate treatment for his
mental condition and with no prospect of
reintegrating into society; this had caused
him particularly acute hardship and distress
of an intensity exceeding the unavoidable
level of suffering inherent in detention.78 In
several instances, the Court has also clarified
that regular transfers to the prison’s hospital
cannot be viewed as a solution.79
According to the ECtHR, a lack of appropriate
medical care for persons in custody is capable
of engaging a State’s responsibility under Art
3.80 In addition, it is not enough for such
detainees to be examined and a diagnosis
made; instead, it is essential that proper
treatment for the problem diagnosed should
also be provided81 by qualified staff.82
The Court reiterated in Rooman v. Belgium83
that the mere fact that a detainee has been
seen by a doctor and prescribed a certain
form of treatment cannot automatically lead
to the conclusion that the medical assistance
was adequate. The authorities must also
ensure that:
• a comprehensive record is kept concerning
the detainee’s state of health and his or her
treatment while in detention;
• a diagnosis and care are prompt and
accurate;
• where necessitated by the nature of a medical condition, supervision is regular and
systematic and involves a comprehensive
therapeutic strategy aimed at adequately
treating the detainee’s health problems or
preventing their aggravation, rather than
addressing them on a symptomatic basis;
• the necessary conditions were created for
the prescribed treatment to be actually
followed through;
• medical treatment provided within prison
facilities must be appropriate; that is, at a
level comparable to that which the State
authorities have committed themselves
to provide to the population as a whole.
Nevertheless, this does not mean that
every detainee must be guaranteed the
same level of medical treatment that is
available in the best health establishments
outside prison facilities; and
• where the treatment cannot be provided in
the place of detention, it must be possible
to transfer the detainee to a hospital or to
a specialised unit.84
In Rooman v. Belgium, the applicant complained
that his compulsory confinement without
psychological and psychiatric treatment in the
social protection facility in which he had been
placed, 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 Art 3 of the Convention. In particular, the
applicant complained that he was not receiving any treatment in his native language of
German, which is also an official language in
Belgium. The authorities responsible for the
applicant were content with the excuse that
there were no German-speaking specialists in
the facility to justify the fact that he was not
receiving appropriate treatment. The Court
considered that these elements are sufficient
to demonstrate that the national authorities
failed to provide treatment for the applicant’s
health condition and concluded that there
was a violation of Art 3 of the Convention in
respect of the period from the beginning of
2004 to August 2017.
The ECtHR jurisprudence does not consider
a detainee’s segregation as amounting to
inhuman treatment in itself. In fact, in order
to assess whether a violation of Art 3 takes
place with regard to solitary confinement, the
ECtHR considers the particular conditions of
the case, the stringency of the measure, its
duration, the objective pursued and its effects
on the person concerned. Moreover, the duration of such confinement is analysed by the
ECtHR in conjunction with its justification,
the need for the measures taken and their
proportionality with regard to other possible
restrictions, the guarantees offered to the
applicant and the measures taken by the
authorities to ensure that the applicant’s
physical and psychological condition allowed
him to remain in isolation.85 Particular attention is paid by the Court towards those
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