Information Note on the Court’s case-law 190
November 2015
Bamouhammad v. Belgium - 47687/13
Judgment 17.11.2015 [Section II]
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to provide effective remedy in respect of repeated transfers and prison security measures
Article 3
Degrading treatment
Prisoner suffering from mental health problems subjected to repeated transfers and special security measures: violation
Article 13
Effective remedy
Lack of effective remedy in respect of repeated transfers and prison security measures: violation
Facts – From 1984 onwards, the applicant received a number of long-term prison sentences for, among other offences, premeditated murder and attempted murder, robbery, aggravated robbery, hostage-taking, destruction of public buildings and illegal possession of weapons. In 2007 he was diagnosed as having a combination of symptoms corresponding to Ganser syndrome and derived from sensorial deprivations. In addition, in 2012 the psychiatrist treating him found that his mental condition could also be explained by a “disorder of the appearance of autism associated with Asperger’s syndrome”. From 2006 to 2013 the applicant was transferred 43 times from one prison to another. In addition, owing to disciplinary incidents related to his violent behaviour, special security and coercive measures were imposed on him on a number of occasions. None of his appeals against those measures was successful.
Before the European Court, the applicant complained about all the security measures ordered against him during his imprisonment, claiming that they had caused a deterioration in his mental health: continual transfers from one prison to another, extreme measures of coercion (systematic handcuffing, American-style grille door, body searches, deprivation of contact, including with a psychologist, and of leisure activities), measures of solitary confinement and harassment.
Law
Article 3 (substantive limb): The applicant was suffering from serious mental disorders. There were a number of factors explaining these disorders, which stemmed both from his personal history and from the duration and context of his imprisonment.
The arrangements for the applicant’s detention, involving repeated transfers between prisons and prolonged special measures, together with the administration’s delay in providing him with therapy, and the authorities’ refusal to envisage the slightest adaptation of his sentence in spite of the decline in his health, had subjected him to distress of an intensity exceeding the inevitable level of suffering inherent in detention and had thus constituted degrading treatment.
Conclusion: violation (unanimously).
Article 13 taken together with Article 3: In addition to the compensatory remedy by which the State and prosecution could be held accountable for their actions, the applicant had also, on two occasions, used a “preventive” remedy, which consisted of an urgent application to the civil court to put an end to the transfers and to the special measures.
The Court noted that it had considered, obiter, in the case of Vasilescu, which concerned prison overcrowding, that the preventive remedy seemed, in theory, to be sufficient to rectify with immediate effect situations that were in breach of detainees’ rights. The urgent proceedings judge could order an individual measure to put an end to a situation in breach of the detainee’s rights, concerning, for example, relations with other prisoners or security measures.
That being said, the applicant’s complaints did not concern isolated measures of detention but rather the continuous policy of transfers and the regime applied in a given prison, and the effects of those measures on the applicant’s health. On account of the repeated prison transfers, the protection available from the urgent applications judge had not proved effective. During the first set of proceedings the applicant had continued to be transferred between prisons, rendering without object his request to discontinue the individual measures, and preventing him from proving the urgency of the matter such as to justify the jurisdiction of the urgent applications judge. Moreover, the proceedings on the merits as regards the transfer policy had not ultimately been successful.
Consequently, the circumstances voluntarily created by the authorities had not enabled the applicant to have any realistic possibility of using the urgent applications procedure. He had not had an effective remedy by which to submit his complaints under Article 3.
Conclusion: violation (unanimously).
Article 46: A law (loi de principes) of 2005 had introduced into Belgian law a specific right of prisoners to complain to a complaints board attached to the supervisory committees in each prison. The relevant provisions had not yet entered into force, however, in the absence of a royal implementing decree.
With that in mind, and as had already been the case in Vasilescu, the Court recommended that the State should introduce a remedy adapted to the situation of prisoners who were subjected to transfers and to special measures such as those imposed on the applicant.
Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See Vasilescu v. Romania, 27053/95, 25 November 2014, Information Note 179)
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This summary by the Registry does not bind the Court.
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