PARTLY DISSENTING OPINION OF JUDGE SERGHIDES

1. The present case concerns complaints under Articles 3 and 5 of the Convention by an applicant who suffers from a serious mental disorder rendering him incapable of controlling his actions and who has been detained since 2004 in a specialist faculty with no German-speaking staff, whereas he himself can only speak German (one of the three official languages of Belgium).

2. I voted in favour of all the points of the operative part of the judgment except for points 3 and 5.

3. Finding no violation of Articles 3 and 5 in the judgment for the period from August 2017 to date presupposes that the facts which occurred in August 2017 broke the chain of continuity which had led the Court to find a continuous violation from the beginning of 2004 until August 2017.

4. In my humble view, this change, that is, an improvement or development in the applicant’s treatment by the national authorities in 2017, which was, in the majority’s view, sufficient to break the chain of continuity – a point with which I agree – should be noted and welcomed by the Court, but it should go no further than that; in other words, it should not go as far as to find “no violation” of Articles 3 and 5 of the Convention. This is so because, at the very moment the Court finds that there was a break in the chain of continuity of the applicant’s situation or treatment, it lacks jurisdiction rationae temporis to continue examining the merits of the case in relation to the period subsequent to that break.

5. The Court does have jurisdiction to consider whether there was a break in continuity pending its examination of the case simply because, if it were to find that there was no break, then its jurisdiction would be preserved on the basis of the continuous nature of the violation, which would in turn become an aggravating factor in the assessment of just satisfaction. On the other hand, if the Court were to find (as it does in the present judgment) that there was a break in continuity, then the Court’s jurisdiction would automatically cease to exist. After the break, there is nothing to vest the Court with jurisdiction to decide whether there was a “violation” or “non ‑ violation” regarding subsequent, non-pertinent, facts. This is so because, under Articles 34 and 35 of the Convention, an applicant’s “victim status” must be based on facts preceding the filing of his or her application before the Court unless the alleged violation constitutes a continuing situation.

6. The approach I propose is, I believe, in line with the principle of effectiveness and the principle of good faith, which are inherent in the Convention and should also be taken into account in interpreting a treaty provision as stipulated in Article 31 § 1 of the Vienna Convention on the Law of Treaties (VCLT) of 1969. In my view, the suggested interpretative approach imparts to the relevant Convention provisions the maximum scope and weight that is deducible from their textual meaning and their object and purpose. It is also based on good faith, since, on the one hand, it accepts the concept of a “continuing violation”, which can be an unfortunate reality, and, on the other, treats the consequences of a break in such continuity for the Court’s jurisdiction with reasonableness and fairness, which are basic elements of good faith. [14]

That is why I propose that the Court’s jurisdiction ends automatically when it finds that there has been a break in the continuity of a situation.

7. It is to be noted that in Varnava and Others v. Turkey [GC], (nos. 16064/90 and 8 others , ECHR 2009), the Court dealt with the issue of continuous violations and the procedural obligations on a State, preceding its acceptance of the right of individual application and continuing thereafter. However, the situation in the present case is somewhat different, in that it concerns the following two issues: (a) whether the Court can take into account a violation which continues after an application has been filed; and (b) whether the Court has jurisdiction to conclude that there has been “no violation” after establishing that there had been a break in continuity pending its examination of the case. What is important, however, is that in the above-cited Varnava case the Court also based its judgment on the principle of effectiveness. [15]

8. This approach is also supported by the judgment in Stanev v. Bulgaria [GC] (no. 36760/06, 17 January 2012), where the Grand Chamber stated as follows:

“212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment.

213. There has therefore been a violation of Article 3 of the Convention.”

(emphasis added)

When the Court in the above-mentioned case refers to a seven ‑ year period during which there had been a violation, it is referring to the period from 2002 to 2009, before the improvements were made (see Stanev , § 207). When the Court finds a violation in § 213 of its Stanev judgment, it does so in relation to this period only. The Court does not proceed to delve into the merits of the case following that change in circumstances.

9. In the present case the Court should have proceeded in the same way as it did in Stanev. Thus, in my view, it should only acknowledge that improvements have occurred and note or welcome them.

[1] See L.B. v. Belgium , no. 22831/08, § 113, 2 October 2012; Swennen v. Belgium , no. 53448/10, § 90, 10 January 2013; Van Meroye v. Belgium , no. 330/09, § 114, 9 January 2014; Oukili v. Belgium , no. 43663/09, § 74, 9 January 2014; Caryn v. Belgium , no. 43687/09, § 52, 9 January 2014; Moreels v. Belgium , no. 43717/09, § 77, 9 January 2014; Gelaude v. Belgium , no. 43733/09, § 72, 9 January 2014; Saadouni v. Belgium , no. 50658/09, § 83, 9 January 2014; Plaisier v. Belgium , no. 28785/11, § 64, 9 January 2014; Smits and Others v. Belgium (Committee), nos. 49484/11 and Others, § 81, 3 February 2015; Vander Velde and Soussi v. Belgium (Committee), nos. 49861/12 and 49870/12, § 60, 3 February 2015.

Compare De Donder and De Clippel v. Belgium , no. 8595/06, § 111, 6 December 2011, where the Chamber had granted EUR 25,000, and Dufoort v. Belgium , no. 43653/09, § 116, 10 January 2013, where it awarded only EUR 5,000, the amount that had been claimed by the applicant.

[2] See Claes v. Belgium , no. 43418/09, § 140, 10 January 2013; Lankester v. Belgium , no. 22283/10, § 104, 9 January 2014; and W.D. v. Belgium , no. 73548/13, § 178, 6 September 2016.

[3] See DG.be, Die deutschsprachige Gemeinschaft, http://www.dg.be/desktopdefault.aspx/ tabid-2788/5431_read-34851/ (07/01/2019, 12:10 h).

[4] See, as a similar case, Rangelov v. Germany , no. 5123/07, 22 March 2012.

[5] The Grand Chamber also denies that such a right could be deduced from Article 5 § 1 (e) of the Convention (see paragraph 230 of the judgment).

[6] The argumentation in relation to Article 5 of the Convention is different, as Article 5 does not guarantee an absolute right directly linked to human dignity.

[7] See Mursic v. Croatia [GC], no. 7334/13, §§ 96-101, 20 October 2016.

[8] See Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, §§ 107-113, 9 July 2013.

[9] See Claes v. Belgium , no. 43418/09, 10 January 2013; Lankester v. Belgium , no. 22283/10, 9 January 2014; and W.D. v. Belgium , no. 73548/13, 6 September 2016, where a violation of both Articles 3 and 5 was found.

[10] See O.H. v. Germany , no. 4646/08, §88-91, 24 November 2011; B. v. Germany , no. 61272/09, §§ 82-84, 19 April 2012; S. v. Germany , no. 3300/10, §§ 97-99, 28 June 2012, and Glien v. Germany , no. 7345/12, §§ 93-96, 28 November 2013. In those cases the applicants did not even complain under Article 3. See also the very recent case of Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, 4 December 2018.

[11] See the difference in this respect between the present case and the above-cited cases of Claes , Lankester and W.D .

[12] Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience” (see Stanev v. Bulgaria [GC], no. 36760/06, § 203, ECHR 2012).

[13] Nevertheless, the Chamber judgment explicitly refers to this factor: “… taking into account the fact that German is one of the three official languages in Belgium , the Court finds that the national authorities did not provide adequate treatment for the applicant’s health conditions” (see paragraph 91 of the Chamber judgment, cited in paragraph 135 of the present judgment). The problem of qualifying an absolute standard does not arise under Article 5 of the Convention. The analysis under this provision is not based on human suffering, but on the question of a continued link between the purpose of detention and the conditions in which it is carried out (see paragraphs 212 et seq.).

[14] For these elements of good faith, see, inter alia, J. F. O’Connor, Good Faith in International Law, Aldershot, 1991, at pp. 42, 110, 124; and Mark E. Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, Leiden-Boston, 2009, at pp. 425 ‑ 26,

[15] In Varnava, cited above , the Grand Chamber, under the “general principles” in dealing with a preliminary objection from the respondent State regarding the six-month rule under Article 35 § 1 of the Convention, held that it “cannot emphasise enough that the Convention is a system for the protection of human rights and that it is of crucial importance that it is interpreted and applied in a manner that renders these rights practical and effective, not theoretical and illusory” (ibid., § 160). It continued: “[t]his concerns not only the interpretation of substantive provisions of the Convention, but also procedural provisions; it impacts on the obligations imposed on respondent Governments, but also has effects on the position of applicants” (ibid.). The Court ultimately dismissed the respondent State’s preliminary objection and eventually found, inter alia , a continuing procedural violation of Article 2 of the Convention on account of the failure by the respondent State to conduct an effective investigation into the fate of nine Greek Cypriots who had been missing since the Turkish military operations in northern Cyprus in 1974, despite the fact that Turkey accepted the right of individual application before the then European Human Rights Commission only in 1987 and the jurisdiction of the old Court in 1990.