BAYBASIN v. THE NETHERLANDS

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 13600/02
by Hüseyin BAYBAŞIN
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 6 October 2005 as a Chamber composed of:

MrB.M. Zupančič, President,
MrJ. Hedigan,
MrL. Caflisch,
MrC. Bîrsan,
MrsA. Gyulumyan,
MsR. Jaeger,
MrE. Myjer, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 28 February 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Hüseyin Baybaşın, is a Turkish national who was born in 1956 and is serving a life prison sentence in the Netherlands. He is represented before the Court by Ms J. Serrarens, a lawyer practising in Maastricht.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On an unspecified date in 1996, the applicant was detained in the Netherlands in connection with a request for his extradition to Turkey, where he was suspected of murder. During this detention, it appeared that there were serious indications that the applicant’s life was at risk from foreign State- or non-State agents.

Shortly before his release in December 1996 – after a Netherlands court had found the applicant’s extradition to Turkey not permissible – the prison authorities received signals that the applicant and three co-detainees harboured escape plans. On 25 February 1998, the applicant filed a criminal complaint with the police that the Turkish authorities planned to kill him.

1. The criminal proceedings against the applicant

On 27 March 1998, the applicant was arrested and placed in pre-trial detention (voorlopige hechtenis) on suspicion of having committed serious crimes within the setting of a violent criminal organisation in which he played a leading role. Criminal proceedings were brought against the applicant, who was sentenced in first instance proceedings to twenty years’ imprisonment. On 30 July 2002, following proceedings on appeal, the Court of Appeal (gerechtshof) of ‘s-Hertogenbosch quashed the first instance judgment, convicted the applicant of several offences and sentenced him to life imprisonment. His subsequent appeal in cassation to the Supreme Court (Hoge Raad) was dismissed on 21 October 2003.

2. The applicant’s detention during and after the criminal proceedings

The applicant was initially detained in an ordinary remand centre (huis van bewaring). Shortly after his apprehension and on the basis of information indicating a risk that he would seek ways to escape as well as reports that he risked to be “liquidated”, he was transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in a Rotterdam detention facility.

On 26 June 1998, on the advice of the special selection board of the maximum-security institution (Extra Beveiligde Inrichting; “EBI”), the Minister of Justice decided to place the applicant in the pre-trial detention unit in the EBI which is part of the Nieuw Vosseveld Penitentiary Complex in Vught. His detention in the EBI prison was reviewed and prolonged by the Minister every six months. The applicant unsuccessfully challenged each prolongation decision before the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing). On 1 April 2001, the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming).

3. The decision of 16 July 2001 prolonging the applicant’s stay in the EBI

By letter of 16 July 2001, the applicant was informed that the Minister of Justice had decided to extend the applicant’s placement in the EBI once again. According to information contained in the proposal of 25 June 2001 to prolong the applicant’s stay in the EBI, he had not had any contacts with a social worker during the last six months and apparently did not feel the need to have such contacts. The proposal, which sets out in an extensive manner the applicant’s attitude, behaviour and activities in the EBI, does not mention any psychological problems encountered by the applicant which would have been caused by his stay in the EBI.

The letter of 16 July 2001, in its relevant part, reads as follows:

“From the information available about you, it appears that you must be qualified as likely to try to escape (vluchtgevaarlijk). On this subject, I inform you as follows.

In official reports (ambtsberichten) that have been received it is pointed out – apart from your membership of a criminal organisation – that you are being suspected of having committed serious crimes. You are suspected of leadership of an international criminal organisation that must be regarded as very violent. You are suspected of directly having directed the commission of very serious as well as very violent crimes that have seriously rocked the legal order. Subsequent to the above you have in the meantime, after life imprisonment had been sought [by the prosecution], been sentenced in first instance to twenty years’ imprisonment. You have filed an appeal.

During your transports to the Breda Regional Court (arrondissementsrechtbank) and the National Segregation Unit in Rotterdam on 8 April 1998 and 10 April 1998, respectively, “suspect cars” were noted in respect of which it appeared that the [names in which these vehicles were registered] could be connected to persons having criminal backgrounds. You have indicated that you(r family) dispose(s) of a lot of money. Against the background of this last information it can therefore also be concluded that you are capable of giving financial substance to escape intentions, casu quo to organise – by engaging others – an escape (attempt).

Also during a previous detention there were indications, on 29 November 1996 in the ... detention facility, that you had intentions to mount an escape together with others, which operation was to involve a fire arm. On 9 December 1996, in the latter detention facility, information (was found) that could be connected to the indications referred to above. Your previous detention was a consequence of the fact that Turkey (unsuccessfully, as it later appeared) had requested your extradition in connection with serious crime.

As you did during your previous detention, you have indicated that you are being threatened with “liquidation”, also whilst in detention. You have reported this, also by way of filing a criminal complaint on 25 February 1998 with the Rotterdam police. Therefore, as during your previous detention, you have been transferred – in view of the seriousness, which became apparent after the investigation, of the information available – [on 10 April 1998 to the National Segregation Unit] in order to secure not only your safety but also order, peace and security of the penitentiary institution where you were staying. The fear expressed by you was confirmed once more in May 1998 in official reports received.

On 13 September 1999, you and your visiting sister frustrated the regime directives applicable in the EBI. Your sister allowed you to read uncensored reports after which she destroyed these reports. For this reason you were confronted with a disciplinary sanction.

With reference to the contents of the third paragraph, I inform you that also in January 2001 the presence of a “suspicious” car was noted in the EBI surroundings around the time of your transport to the Rotterdam Regional Court. Three persons, travelling in this car, were present in the courtroom on 25 January 2001. They turned out to have criminal antecedents.

On 30 October 2000, you and a co-detainee exchanged thoughts about one of the latter’s escape attempts elsewhere in the Netherlands. In this context you were told by the co-detainee concerned that he had paid 25,000 Netherlands guilder for this. It was remarkable that this co-detainee added that ‘this would never succeed here because the staff forms a block together with the Direction’.

In the meantime, after life imprisonment had been sought [by the prosecution], you have been sentenced in first instance to twenty years’ imprisonment. You have filed an appeal.

Your possible escape would be unacceptable to society and would lead to a seriously rocked legal order, having regard to the serious crimes of which you are suspected casu quo of which you have been convicted in first instance. Where intentions to “liquidate” you would (successfully) materialise, this would give rise to offences entailing social unrest and a seriously rocked legal order.

In view of the above, the [EBI] selection board, having heard the selection officer (with whom you refused to speak), has advised me, to continue your placement in the EBI. I have taken a decision to that effect.

For the sake of completeness, I further inform you that the EBI regime directives offer extra guarantees for the prevention of the implementation of (possibly) existing intentions to liquidate you. In this connection it must be mentioned, with reference to what has been stated above in this letter, that also within the EBI (beginning 2000) “liquidation intentions”, casu quo death threats by third persons, as regards your person have appeared. You indicated that you took these threats very seriously, you appeared frightened and impressed.”

On 25 July 2001, the applicant, as he had done in respect of the previous prolongation decisions, again challenged the prolongation of his stay in the EBI by filing an appeal with the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles. In his appeal against the decision of 16 July 2001, the applicant challenged the necessity of his continued placement in the EBI. He also stated that he suffered both physically and mentally on account of the EBI detention regime without, however, providing any substantiation of this claim. Relying on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in respect of its visit to the EBI in 1997 and on the Court’s decision on admissibility of 28 August 2001 in the case of Van der Ven v. the Netherlands (no. 50901/99), he argued that his (continued) placement in the EBI infringed his rights under Articles 3 and 8 of the Convention on account of the EBI detention regime.

On 27 February 2002, the Appeals Board dismissed the appeal. It held, on the basis of the different elements set out in the impugned decision, that the applicant was extremely likely to try to escape and, in view of the offences of which he was suspected, that he posed an unacceptable risk in terms of danger of re-offending by committing serious violent crimes. Noting that the applicant was being suspected of offences, in respect of which a twenty years’ prison sentence had been imposed in first instance, giving rise to grave concern in society and public opinion, the Appeals Board was of the opinion that the applicant, in the event of an escape, would pose an unacceptable risk to society, also taking into account that concrete threats to kill the applicant or to have him killed had repeatedly appeared. It therefore concluded that the applicant’s stay in the EBI was in accordance with both situations provided for in Article 6 under a. and b. of the Regulation selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000. As regards the applicant’s reliance on the Convention, it held that the proceedings on the prolongation of the applicant’s stay in the EBI fell outside the scope of Article 6 of the Convention and that the rights guaranteed by Article 8 § 1 of the Convention could be interfered with to the extent that such interferences were in accordance with the law and necessary in a democratic society in the interests of, inter alia, the prevention of disorder or crime. It lastly held that the decision to prolong the applicant’s stay in the EBI was lawful and that, weighing up all the interests involved, it could not be considered as unreasonable or unjust. It did not deal with the applicant’s argument that the prolongation of his stay in the EBI was contrary to Article 3 of the Convention.

4. Subsequent decisions prolonging the applicant’s stay in the EBI

In the meantime, on 21 December 2001, the applicant’s placement in the EBI had been prolonged again. His appeal to the Appeals Board was dismissed on 30 May 2002 on the same grounds as those given in the Appeal Board’s decision of 27 February 2002.

On 21 May 2002, the applicant’s placement in the EBI was prolonged once more. The applicant filed an appeal with the Appeals Board against this decision on 30 May 2002. No further information about these appeal proceedings has been submitted.

On 24 December 2003, the applicant was transferred from the EBI to another prison with a different regime.

The applicant claimed that an extensive psychiatric examination completed in March 2004 resulted in a finding that he had developed various mental problems (post-traumatic stress disorder, depression and a strong tendency towards somatisation) during his detention in the EBI, that most of these post-traumatic stress phenomena were linked to his experiences in the EBI and that only some of his complaints and symptoms were connected with his experiences in Turkey.

5. Complaints filed by the applicant with the EBI Complaints Commission and related facts

On unspecified dates in 1998, the applicant filed six complaints with the Complaints Commission (beklagcommissie) of the EBI’s Supervisory Board (Commissie van Toezicht) about, inter alia, the prohibition to speak Kurdish in his telephone conversations with his spouse and children, and about the measure imposed on him to the effect that he was prohibited to contact his spouse and children by telephone for a period of two months (one of which was suspended pending a probationary period of three months) for having used Kurdish (a language other than the allowed European standard languages Dutch, English, French, German, Spanish or Italian, or Turkish or Moroccan) in his telephone contacts with them despite warnings issued not to do so. These complaints were rejected by the Complaints Board on 26 October 1998.

The applicant’s subsequent appeal was rejected on 25 February 1999 by the Appeals Board of the Central Council for the Administration of Criminal Justice. As regards the prohibition to use Kurdish in his telephone conversations and the disciplinary temporary prohibition to contact his spouse and children by telephone, the Appeals Board held that, given the special character of the regime within the EBI, it accepted the EBI Director’s argument that it was necessary – from the point of view of the controllability of the institution – to be able to react rapidly and adequately on what appears from contacts between detainees and the outside world. Given that principle of departure and the Director’s assertion – which it found insufficiently refuted by the applicant – that it takes great effort and thus time to translate Kurdish conversations, the Appeals Board held that the rule contained in the EBI house rules that telephone conversations must be conducted in one of the most common European standard languages could not be regarded as unreasonable and that this finding was not altered by the applicant’s justified interest in being able to communicate with (some of) his relatives. Since this rule had been pointed out to the applicant several times, the Appeals Board further found justified the temporary prohibition imposed on the applicant. No further appeal lay against this decision.

On 17 September 1999, the applicant filed a complaint with the EBI Complaints Commission about the untimely termination of a visit by his sister on 13 September 1999, about being frisked and strip-searched on a daily basis during his subsequent 7 days’ stay in a segregation cell, and that during his segregation period he had not been allowed to contact his lawyer. In reply to this complaint, the EBI Director submitted that, during a visit of the applicant’s sister, she had suddenly placed a piece of paper against the transparent partition separating her from the applicant in order to allow the applicant to read what was written on that paper. The visit was immediately terminated and the applicant taken away. When an EBI official had asked the sister to hand over the paper, she had torn it up and attempted to swallow it. When that had failed, she had tried to hide the paper under her clothes. When that had also not succeeded, she had put it back in her mouth and had tried to destroy it by chewing on it, after which she had spat it out on the floor. According to the applicant, the paper had contained the name of a French lawyer.

In its decision of 25 October 1999, after having seen the paper at issue, the Complaints Commission found it sufficiently established that the applicant’s sister had attempted to swallow it. It considered that the Director’s decision to end prematurely the visit of the applicant’s sister for failure to respect the EBI house rules on visits, of which rules the applicant was or could have been aware, was not unreasonably or unjust and, consequently, rejected the applicant’s complaint. It also rejected his complaints in relation to his subsequent 7 days’ stay in a segregation cell. As to the applicant’s complaint of being frisked and strip-searched on a daily basis during his segregation, the Complaints Commission held that this concerned general EBI regulations and not a decision taken by the Director against which a complaint could be filed. As regards his complaint about not having been allowed to contact his lawyer by telephone during his segregation, it noted that persons held in segregation are allowed to use the telephone for 10 minutes on the 7th day of their segregation and that, if an urgent character of an intended conversation is demonstrated, it is possible to use the telephone sooner. However, as neither the applicant nor his lawyer had sought to do so, the Complaints Commission held that, in these circumstances, the Director’s automatic decision not to allow the applicant to telephone his lawyer was based on general rules and therefore could not be regarded as unreasonable or unjust. No information has been submitted by the applicant as to whether he appealed this decision to the Appeals Board.

By letter of 12 January 2000, in reply to a letter which the applicant’s sister had addressed to Queen of the Netherlands and which had been transmitted for a reply to the Ministry of Justice, the latter informed the applicant’s sister inter alia that inmates in maximum security facilities were required to converse over the telephone and during visits in a standard European language, Turkish or Arabic, and that for security reasons these conversations were recorded, monitored and, if necessary, translated (exceptions to this rule being made for authorised contacts). She was further informed that, as it was impossible to have conversations in Kurdish translated within a reasonable time, communication in that language with callers and visitors was not permitted and that her brother had already unsuccessfully challenged the application of this rule in his case.

On 23 February 2001, the EBI Director prohibited the sending to the applicant’s relatives in the United Kingdom of a drawing with a text written in a non-European standard language. The Director stated that, as it was not possible to translate this language, the sending of the drawing might give rise to risks for the order and security in the EBI. The applicant has not indicated whether he challenged this decision before the Complaints Commission.

On 21 January 2002, relying on the reasons given in the Appeals Board’s above-cited decision of 25 January 1999, the EBI Complaints Commission rejected a complaint filed by the applicant that a picture postcard with a text in Kurdish had not been delivered to him. The applicant’s appeal against this decision was accepted on 20 September 2002 by the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles. Noting the various possibilities pointed out by the applicant, it held that the EBI Director had insufficiently refuted the applicant’s argument that it was possible to find a reliable translator proficient in Kurdish. On this point, the Appeals Board also indicated that a rapid translation did not come into play as regards written documents and that also the EBI house rules only mention a reasonable time as limitation of the delay within which a translation must be made. It therefore quashed the decision of 21 January 2002, accepted the applicant’s complaint and ordered the EBI Director to take a fresh decision.

On 26, 29 and 30 June, 5 July and 12 August 2002, the applicant filed complaints with the EBI Complaints Commission about having been subjected to humiliating and unnecessary strip-searches. No further information about the outcome of these complaints has been submitted by the applicant.

Between 1 and 5 August 2002, the applicant filed four complaints with the EBI Complaints Commission about his treatment and conditions of detention in the EBI. In a decision of 1 October 2002, the single judge of the Complaints Commission (alleensprekende beklagrechter) declared the applicant’s complaints inadmissible for being an abuse of the right of complaint, as the matters complained of (the applicant’s treatment by EBI staff members, denial of facilities, the EBI regime and the consequential conditions of detention) had already formed the subject matter of numerous previous and repetitive complaints filed by the applicant which had all been dismissed as unfounded. The judge did, however, add that he did appreciate that the conditions of detention in the EBI were particularly burdensome, the more so for alien detainees who did not have the same possibilities for contacts with relatives as detainees whose family were living in the Netherlands, whereas this situation was exacerbated when a detainee had already been staying in the EBI for a long time without any prospects – also in the light of the duration of the sentence imposed – of being placed in a penitentiary with a different regime within a short time. The judge, therefore, suggested to the EBI Direction that they consider taking steps which, in due time, could result in the applicant’s transfer to a penitentiary with a different regime by starting a dialogue with the applicant about the conditions that should be met for considering the possibilities of such a transfer. No information has been submitted by the applicant as to whether he appealed this decision to the Appeals Board.

In its decision of 24 March 2003, the Appeals Board rejected an appeal brought by the EBI Director against a decision given on 13 December 2002 by the EBI Complaints Commission accepting as well-founded a complaint filed by the applicant that mail in Kurdish was not delivered to him. The Appeals Board concluded that the Director had made insufficient efforts to find a reliable translator proficient in Kurdish, casu quo the Kurmancî dialect, and recalled that, in its decision of 20 September 2002, it had already held that it should be possible for the Direction to have every document sent by mail translated. It did not find it established that it would be impossible to obtain a reliable translation of a document written in the Kurmancî dialect. It did, however, add that it was possible for the Director to limit (the size of) the number of documents to be translated per time-unit if otherwise what was reasonably acceptable would be exceeded. On the same date and on the same grounds, it also rejected the Director’s appeal against a decision of 20 December 2002 of the EBI Complaints Commission accepting as well-founded a complaint filed by the applicant that his mail written in Kurdish was not sent to his relatives.

In a decision taken on 16 September 2003, the Appeals Board examined a total of 10 appeals brought by the applicant between 13 January 2003 and 19 June 2003. In so far as relevant, these appeals concerned:

1) frisking and strip-searches carried out on various dates as mentioned in the applicant’s appeals;

2) the manner in which the applicant was frisked and strip-searched on those dates; and

3) the prohibition to communicate (orally and in writing) in Kurdish with his family.

In accordance with the applicant’s request to this effect, the Appeals Board adjourned its examination of the complaint under 3. It further decided, for practical reasons, to quash all the remaining impugned decisions and to determine all of the applicant’s complaints in one decision. The decision of the Appeals Board on the remaining part of the applicant’s appeals reads, in its relevant part, as follows:

“[As to 1]

The complaint is directed against strip-searches and frisking carried out on the dates mentioned in the appeals. ... The ruling of the European Court of Human Rights [of 4 February 2003 in the case of Van der Ven v. the Netherlands, no. 52750/99] and the ruling of the interim-measures judge (voorzieningenrechter) of the Regional Court of The Hague of 7 July 2003, as cited by the [applicant], were given after (the major part of) the strip-searches and frisking of which complaint is made. The conclusion of the Court concerns a practice dating back a considerable time ago and is, therefore, of relevance for the assessment of the strip-searches to which the [applicant] was subjected.

The ruling of the [European] Court impresses upon the authorities involved in carrying out deprivation of liberty that the application of the impugned strip-searches must always be able to stand the test of Article 3 [of the Convention]. Consequently, the Appeals Board will also consider in this light the strip-searches and frisking it must now assess.

Article 29 of the [1999] Prisons Act (Penitentiare Beginselenwet) applies which, in so far as relevant, reads:

‘The Director has the authority to strip-search or frisk a detainee upon the latter’s arrival in and release from the institution, before and after visits, or where this is otherwise necessary in the interest of maintaining order or security in the institution.’

The question must be determined whether in the decision to subject the [applicant] to strip-searches and frisking sufficient account has been taken of the [applicant’s] specific interests and circumstances in which he finds himself.

Those interests and circumstances, such as the duration of the stay in the EBI and whether or not anything untoward has been found during previous strip-searches and frisking, may give an indication for the frequency of strip-searches and frisking. The [applicant] has stayed for more than five years in the EBI and, during his stay there, nothing untoward has ever been found on him. Under these circumstances, the Appeals Board considers the decisions of the Director to subject the [applicant] to strip-searches and frisking, viewed in the light of the frequency thereof, in violation of a statutory prescription (wettelijk voorschrift). [This part of] the appeal must, therefore, be declared well-founded.

As the legal effects of the impugned decision(s) of the Director can no longer be made undone, the [applicant] is entitled to compensation. The Appeals Board shall provide the Director with an opportunity to express himself on the amount of the compensation to be awarded. The Appeals Board will fix the amount of that compensation in a separate decision.

[As to 2]

... It has not been established that the manner in which the applicant was frisked and strip-searched was in violation of a legal rule applicable within the institution, or that this manner of carrying out the frisking and strip-searching must be regarded, weighing up all interests involved, as unreasonable or unjust. This part of the complaint must, therefore, be rejected as unfounded.”

No further appeal lay against this decision.

In a decision taken on 22 January 2004, the Appeals Board examined a further total of nine appeals brought by the applicant concerning decisions given between 5 March and 23 June 2003 by the Complaints Commission or the single-judge of the Complaints Commission. Part of these appeals concerned the applicant’s prohibition to correspond in Kurdish and to use Kurdish in telephone conversations. The Director explained before the Appeals Board that he had made enquiries with all the translation bureaus known to him whether it would be possible to obtain clear translations of conversations and correspondence conducted in Kurdish by the applicant by screened and certified translators. However, one of the problems that appeared was that Kurdish is not a written language. The Director considered that, as regards the applicant’s problem, he had tried to find a solution, but that he insisted on being provided with clear translations in a written form and therefore could not agree with the suggestion made by the applicant (i.e. to work only with interpreters and not with translators, as there were no certified Kurdish translators although the quality of Kurdish translators in the Netherlands could be verified by a qualified authority). The Appeals Board decided at the outset, for practical reasons, to quash all impugned decisions and to determine all of the applicant’s grievances in one decision. It dismissed as unfounded the applicant’s appeals concerning the prohibition to use Kurdish. It held on this point:

“According to the EBI house rules, conversations with visitors, telephone conversations and correspondence must be conducted in one of the most common European (standard) languages – i.e. Dutch, English, French, German, Spanish or Italian – or Turkish or Moroccan. The rules further prescribe that conversations conducted – by telephone or with visitors – and written documents will be translated where necessary. In this respect it is always required that it must be possible to have such a translation made within a reasonable time. The [applicant] wishes, in deviation from the above main rule, to communicate (orally and in writing) in Kurdish.... On appeal, the Director has submitted reasoned arguments why the [applicant] in this case cannot be permitted to communicate in the Kurdish language. He has submitted in particular that it has proved impossible to find interpreters casu quo translators who complied with the requirements – also bearing in mind the nature of the EBI regime and the status of the detainees staying there – determined by the Director. The Appeals Board considers that the Director’s decision to refuse the [applicant] permission to communicate orally or in writing in Kurdish is not in violation of any legal rules applicable in the institution, whereas that decision, weighing up all the interests involved, can neither be regarded as unreasonable or unjust. In this case, the applicant’s personal interests, that is the interest of [being able to conduct] conversations and/or correspondence with relatives in the Kurdish language, are outweighed by the Director’s interests – bearing in mind the EBI status of the [applicant] – in maintaining the strict security regime of the EBI.”

To the extent that the applicant relied on Article 8, the Appeals Board found that the prohibition at issue constituted an interference with the applicant’s rights under Article 8 § 1 which was justified under the second paragraph of that provision. No further appeal lay against this ruling.

In a decision taken on 1 March 2004, the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles examined the applicant’s appeals in connection with a total of 19 complaints filed by him on unspecified dates in 2003. These appeals concerned:

a.1) strip-searches carried out on 21 November and 16 December 2002 at the occasion of a cell inspection;

a.2) four routine strip-searches carried out at the occasion of a cell inspection before 1 March 2003, namely on 5, 11, 20 and 25 February 2003;

a.3) ten strip-searches carried out at random after 1 March 2003; and

a.4) three strip-searches other than following a weekly cell inspection carried out on 31 January, 27 May and 23 June 2003

b. having been repeatedly frisked on one and the same day on eleven dates between 11 March and 22 July 2003; and

c. the EBI staff’s failure to act on the applicant’s dental problems.

The Appeals Board decided at the outset, for practical reasons, to quash all impugned decisions and to determine all of the applicant’s complaints in one decision. It declared inadmissible for having been filed out of time the applicant’s complaints about the strip-searches carried out on 21 November and 16 December 2002 and accepted the remainder of his complaints under a. and his complaints under b. as having been timely lodged. As regards these complaints it held as follows:

“3.5. For the determination of the appeal, the following legal framework is of relevance. Article 29 of the [1999] Prisons Act governs strip-searching and frisking and provides, in so far as relevant here, as follows:

‘The Director has the authority to strip-search or frisk a detainee upon the latter’s arrival in and release from the institution, before and after visits, or where this is otherwise necessary in the interest of maintaining order or security in the institution.’

Further rules based on Article 29 of the [1999] Prisons Act are given in the EBI house rules. Part 6.4 of the house rules (version 19 September 2000) read as follows:

‘In the interest of the order or the security in the institution, you may be frisked and strip-searched at any given moment. You will in any event be frisked and strip-searched in the following situations: a. on arrival in and release from the EBI; b. before and after visits if you have received a visit in the area without a transparent partition; c. in the course of or immediately after a special cell inspection; d. after a visit to the [institution’s] medical service, dentist or hairdresser. You will further be frisked every time you come into physical contact with the staff or other persons working in the institution.’

Since 1 March 2003, the above-cited Part 6.4 has been amended and now reads as follows:

‘In the interest of the order or the security in the institution you may be frisked and strip-searched at any given moment. You will in any event be frisked and strip-searched in the following situations: a. on arrival in and release from the EBI; b. on placement in the disciplinary or segregation cell; c. before and after visits if you have received a visit in the area without a transparent partition; d. in the course of or immediately after the weekly cell inspection, this on a random basis (steekproefsgewijs); e. when this is otherwise necessary in the interest of the maintenance of the order or security (...).’

3.6. For the determination of the appeal are also of relevance the rulings of the European Court of Human Rights of 4 February 2003 [Lorsé and Others v. the Netherlands and Van der Ven v. the Netherlands] (nos. 52750/99 and 50901/99). As regards the weekly strip-searches after the cell inspection it was held [in the case of Lorsé and Others] (no. 52750/99):

‘The Court considers that in the situation where Mr ... was already subjected to a great number of control measures, and in the absence of convincing security needs, the practice of weekly strip-searches that was applied to Mr ... for a period of more than six years diminished his human dignity and must have given rise to feelings of anguish and inferiority capable of humiliating and debasing him. Accordingly, the Court concludes that the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of Article 3 of the Convention. There has thus been a breach of this provision.’

For the remainder, the frisking and strip-searches as carried out in the EBI were found to be compatible with the Convention standards.

3.7. Following the ruling of the European Court, the above-mentioned amendment of the [EBI] house rules and, on that basis, an adjustment of the strip-search policy have been made as from 1 March 2003. The weekly routine strip-searches after cell inspection have been dropped and been replaced by strip-searches carried out at random. This random strip-search [policy] has resulted in the situation whereby, in principle, a detainee will be strip-searched on average once every fortnight.

3.8. The present case (still) concerns the [17] strip-searches carried out [between 31 January 2003 and 23 June 2003].

3.9. The complaints are well-founded in so far as they concern the [4] weekly routine strip-searches after the cell inspection in the period before 1 March 2003 (part a.2.). These strip-searches are not compatible with Article 3 of the Convention, in particular given the frequency of their occurrence. In this respect the Appeals Board has noted the following circumstances. It must be put first that they concerned weekly routine strip-searches. At the time of filing the complaints at issue, the [applicant] had already been staying in the EBI for more than five years. It has not been argued and neither has it appeared that, during his stay in the EBI, anything untoward has ever been found in his possession. It has further been taken into account that the [applicant] was subjected to a great number of other stringent security measures.

As the legal effects of the decisions to carry out routine strip-searches after cell inspection prior to 1 March 2003 can no longer be made undone, the [applicant] is entitled to compensation. The Director has been given the opportunity to submit his position as regards the compensation. The Appeals Board will fix the compensation at € 20.

3.10. To the extent that the complaints concern strip-searches carried out at random after 1 March 2003, the following applies. [These complaints] concern the [10] strip-searches carried out [between 11 March and 11 June 2003] (part a.3.). Already in previous decisions, the Appeals Board has adopted the position that Article 29 of the [1999] Prisons Act allows frisking and strip-searches on a random basis. Unlike the provisional-measures judge at the Regional Court of The Hague in his ruling of 7 July 2003, the Appeals Board does not see why the further elaboration of the competence under Article 29 of the [1999] Prisons Act as given in the [EBI] house rules in the form of strip-searches carried out on a random basis is ipso facto unlawful, also having regard to the special security demands that apply to an institution like the EBI. In this connection, it is worth mentioning that the notion of random check allows for a margin of appreciation and that much depends on the manner in which the new policy is implemented, since it can be said that a [new policy] result of an average of twice a month can now be seen as a limit.

The [applicant] has been strip-searched once in March 2003, four times in April 2003, four times in May 2003 and once in June 2003.

As the [applicant], without any particular reason, has been subjected to strip-searches in April and May 2003 more often than twice a month, and the average number of strip-searches per month in the period between 1 March 2003 and 31 June 2003 was higher than two, it cannot be said that the intensity of the strip-searches for no particular reason has thereby been reduced considerably, which would have been the situation in case of an average of twice a month. For this reason, the complaints must be declared well-founded to the extent that the number of random strip-searches is in excess of twice a month, which in this case is to be calculated over the period between 1 March 2003 and 31 June 2003.

As the legal effects of the above-cited decisions can no longer be made undone, the [applicant] is entitled to compensation. The Director has been given the opportunity to submit his position as regards the compensation. The Appeals Board will fixt the compensation at € 10.

As regards the strip-searches in the months of March and June 2003, and although it can be assumed that also these random strip-searches were very burdensome for the [applicant] having regard to the other stringent security measures, these cannot be regarded as being in violation of any legal rule and as yet it cannot be said that these strip-search decisions under this new policy are unreasonable or unjust.

3.11. The complaints under a.4. concern strip-searches carried out on 31 January 2003, 27 May 2003 and 23 June 2003. These all concern strip-searches with an incidental character and based on a particular ground [i.e. a physical contact between the applicant and a third person, the applicant’s transport by helicopter to the Regional Court and a physical contact between the applicant and a co-detainee who had embezzled work equipment]. The existence of a particular ground is not disputed. These strip-searches are for the [applicant] of an upsetting nature having regard to the other security measures, but the decisions to conduct a strip-search are mandatorily prescribed in the house rules and these house rules are not in violation of a (higher) legal rule, and weighing up all the interests involved, the strip-search decisions cannot be regarded as unreasonable or unjust. To this extent, the complaints are unfounded.

3.12. In so far as the complaints concern [the applicant] having been frisked (part b.) [on eleven occasions between 11 March and 22 July 2003], the following applies. Noting the considerably less intrusive nature of these checks, they can stand the test of the standard of Article 3 of the Convention. This does not mean that such checks would not be perceived as unpleasant and would not arouse feelings of helplessness. However, the decisions to frisk are not in violation of a legal rule and, weighing up all interests involved, cannot be regarded as unreasonable or unjust. To this extent, the complaints are unfounded.

3.13. In respect of part c. the Appeals Board considers as follows. [This complaint] does not relate to a decision of the Director within the meaning of Article 60 § 1 of the [1999] Prisons Act. The [applicant] had been given the opportunity to consult the institution’s dentist, but refused this. The complaint must, therefore and to this extent, be declared inadmissible. This finding is not altered by the reason for the [applicant’s] refusal, namely that he would be subjected to a strip-search afterwards.”

No further appeal lay against this decision.

In a decision taken on 11 August 2004, the Appeals Board rejected the applicant’s appeal against a decision taken by the single judge of the EBI Complaints Commission on 12 May 2004 in which the applicant’s complaint of having been strip-searched on 14 November 2003 had been dismissed. The Appeals Boards upheld the impugned decision, in which it was noted that during the last two months the applicant had been subjected to a strip-search on average once per month and concluded that the decision to subject the applicant to a strip-search on 14 November 2003, on the basis of a random check, could not be regarded as unlawful, nor as unreasonable or unjust.

B. Relevant domestic law and practice

An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II).

On 1 March 2003, in view of the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (cited above) and Lorsé and Others v. the Netherlands (no. 52750/99), the EBI house rules (huisregels) were amended in that the practice of weekly routine strip‑searches accompanying the weekly cell inspections was abandoned. Under the amended Article 6.4 of the EBI house rules, strip‑searches could be carried out at random during or directly after a weekly cell inspection.

On 7 July 2003, the interim-measures judge of the Regional Court of The Hague gave his decision in summary injunction proceedings taken against the Netherlands State by thirteen EBI detainees, including the applicant, who had sought an injunction against the EBI Direction to the effect that the EBI house rules on frisking and strip-searches would no longer be applied as they were incompatible with Article 3 of the Convention. Accepting that the plaintiffs had no other legal remedy at their disposal for challenging the lawfulness of the general rules applicable to them – the Complaints Commission and Appeals Board only being competent to examine the lawfulness of individual decisions taken by the prison authorities in respect of detainees –, the provisional-measures judge declared the plaintiffs’ claim admissible and, after an examination of the merits of their claim, ordered the Netherlands State to cease, within three days after notification of the ruling, to stop applying Part 6.4 (d) of the EBI house rules in so far as this provision concerned strip-searches and prohibited the Netherlands State to subject detainees to strip-searches on that basis. The provisional-measures judge finally declared his judgment to be immediately enforceable (uitvoerbaar bij voorraad). This judgment, in its relevant part, reads as follows:

“3.7.As regards strip-searches when [a detainee is] placed in a disciplinary or segregation cell, the defendant submitted that this only still takes place when a detainee is actually placed in such a cell and no longer, contrary to what paragraph 8.2 (a) of the EBI house rules [states], on a daily basis during a stay in that cell. There is no cause to doubt this information. Noting the criteria that apply for placement of a detainee in the EBI (extreme danger of fleeing, or danger for fleeing with a suspicion that violence will not be shunned in an escape attempt) and the social unacceptability of escapes, the conclusion is justified that this measure is necessary for the segregated detention of this particular category of detainees. The same applies to strip-searches carried out on arrival in and release from the EBI and before and after an “open” visit [visits during which the detainee and his visitors are not separated by a transparent partition].

3.8. Strip-searches in the course of or immediately after a cell inspection are currently only carried out on a random basis and no longer, as previously, on a [routine] weekly basis. Such an a-select random check can, in general, stand the test of criticism. Detainees in the EBI regularly stay in areas where they are not under constant surveillance or where such surveillance, whether or not on account of inattention of staff, may fall away. It is plausible that, as a result thereof, a situation may present itself that a detainee comes across an item and conceals this in his body’s orifices and crevices, whereas such an item, whether or not after having converted it or passed it on to a co-detainee, can form a threat for the order or security in the institution. This is not altered by the plaintiffs’ claim that this must be regarded as being virtually impossible. In this respect, reference is made once more to the special category of detainees in the EBI. It is further also plausible, as argued by the defendant, that the risk exists that a staff member yields to a detainee’s pressure and functions as a ‘line’ with the outside world. In addition, a random check as indicated above can have a deterrent effect, which may increase the security (in the sense that detainees will be less inclined to search for loopholes in the security system).

3.9. The present regulation as regards random strip-searches does, however, not prevent that a detainee, in whose respect there are circumstances on the grounds of which such a strip-search – according to the Convention standards – is to be regarded as inhuman and humiliating, will be subjected to that random check. Without [an individual] particularisation, [by] for instance [taking into account] the duration of the stay in the EBI, the effects of strip-searches on the detainee concerned and the aim and necessity of subjecting a specific detainee to the random check at issue, that regulation, in its present wording, must therefore be regarded as unlawful vis-à-vis the plaintiffs.

3.10. The defendant must reflect on the question whether a system can be designed for carrying out random strip-searches allowing due respect for the norms set out by the European Court of Human Rights [in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands and Lorsé and Others v. the Netherlands]. This must in itself, having regard to the limited number of detainees in the EBI, be regarded as feasible. In this, it might be advisable to verify whether Part 6.4 under e. [of the EBI house rules as amended on 1 March 2003] does not already offer a sufficient basis.

3.11. Frisking, certainly to the extent in which such checks take place in the EBI, may to a certain level be unpleasant and arouse feelings of helplessness. However, what has been submitted by the plaintiffs in this respect is insufficient for a finding that such checks, also when considered together with the other security measures in the EBI, are incompatible with the provisions of Article 3.”

As from 10 July 2003, the random strip-searches were disconnected from cell inspections and the EBI Direction started to determine per individual detainee to what extent random strip-searches were called for. Since then, the situation of each individual detainee forms the topic of discussion in monthly EBI staff meetings on detainees.

On 10 October 2003, researchers of the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates. It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, in particular where it concerned the speed of processing information and response inhibition. This was probably a result of the stimuli-poor character of the detention situation. The report further concluded that the EBI regime caused more depressiveness than a restricted community regime and that the strip-searches were perceived as humiliating, which constituted an extra burden for persons detained in the EBI. On the other hand, the EBI regime guaranteed a better rest/activity rhythm than a restricted community regime as a result of which EBI detainees maintained a healthier life rhythm. In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress.

C. Findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

The findings of the CPT with regard to the EBI, as set out in its Report on the visit to the Netherlands from 17 to 27 November 1997, as well as the Netherlands Government’s response to these findings are set out in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 32-35, ECHR 2003-II).

The CPT visited the Netherlands again from 17 to 26 February 2002 and, in the course of this visit, carried out a follow-up visit to the EBI. Its findings concerning the EBI were the following (Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002, CPT/Inf (2002) 30, excerpt):

“33. At the time of the February 2002 visit, the Extra Security Institution (EBI) at the Nieuw Vosseveld Prison Complex was being renovated, and the inmates allocated to it were being held in the Temporary Extra Security Institution ((T)/EBI) building nearby (cf. paragraph 58 of CPT/Inf (98) 15).

In addition to paying a brief visit to the facilities undergoing renovation, the CPT’s delegation examined the regime currently being applied, and devoted attention to the procedures governing placement and extension of placement in EBI. In the course of the visit, interviews were held with all 14 inmates, the establishment’s management and staff, as well as representatives of the EBI Selection Board.

b. ill-treatment

34. As had been the case during the 1997 visit to the Netherlands, the delegation heard no allegations of any form of physical ill-treatment of prisoners by staff at the EBI. That said, there was considerable room for improving the quality of staff-inmate relations. This subject will be addressed later in the report.

35. In the light of a serious incident which had taken place in the EBI in September 1999, the CPT must also raise the issue of combating inter-prisoner violence. In that incident, a prisoner was killed in a fight (instigated by him) with a fellow inmate which took place during the exercise period in one of the yards. Apparently, guards were not in a position to prevent the prisoner’s death, due to several factors: the speed with which the incident occurred; their physical separation from the exercise yard by armoured glass panels; and, finally, security regulations prohibiting them from entering into direct contact with more than one inmate at a time[12].

The information gathered during the visit was not indicative of the existence of a general environment of inter-prisoner intimidation and violence in the EBI. However, from the delegation’s interviews with several inmates, it transpired that the prisoner who died in the above-mentioned case had made threats against the same fellow inmate on a number of occasions.

36. It is axiomatic that the duty of care which is owed by prison authorities to prisoners in their charge includes the responsibility to protect them from other prisoners who might wish to cause them harm. This requires that prison staff be alert to signs of trouble, and both in a position and resolved to intervene where necessary. The existence of positive relations between staff and prisoners is a decisive factor in this context; regular interaction between staff and inmates will enable prison officers to detect situations which are different from the norm and may present a threat to security.

Clearly, until recently at least, the arrangements at the EBI did not meet the above requirements. Direct contacts between staff and inmates were very limited; in fact, during most stages of the day, they were separated by armoured glass panels. Obviously, this is far from conducive to building positive relations between staff and prisoners, and also makes it difficult to intervene in good time when an incident of inter-prisoner violence occurs.

The CPT is pleased to note that the above-mentioned renovation of the EBI involves in particular the adaptation of the exercise yards so as to allow for more interaction between staff and inmates. In order to achieve this, walkways for staff were being created by constructing fences along the edges of the existing yards. This is in general a positive development and should facilitate, inter alia, the combating of inter-prisoner violence. However, the CPT recommends that appropriate steps be taken to ensure that it is physically possible for staff to enter rapidly any part of the EBI in order to deal with incidents of inter-prisoner violence. Similarly, the regulatory framework should be reviewed in order to ensure that it permits rapid staff intervention in such cases.

c. regime

37. Following its first visit to the EBI, the CPT expressed considerable concern about the regime applied within the institution. It recommended that the regime be revised, in particular as regards certain of its features: the group system (if not discarded, to at least be relaxed and inmates to be allowed more out-of-cell time and a broader range of activities); searching policies (to be reviewed in order to ensure that they are strictly necessary from a security standpoint); and visiting arrangements (to be reviewed, the objective being to have visits take place under more open conditions) (cf. paragraphs 61 to 70 of CPT/Inf (98) 15).

However, in their response (dated 1 March 1999) to the CPT’s visit report, the Dutch authorities defended point by point the different aspects of the regime being applied in the EBI (cf. paragraph 29 of CPT/Inf (99) 5).

38. In the course of the February 2002 visit, the Director of the Nieuw Vosseveld Prison Complex and the Acting Director of the EBI informed the CPT’s delegation that a limited number of modifications to the regime and its implementation had taken place. For instance, steps were being taken to increase staff/inmate communication through a training programme known as "Safety at the door", as well as by the previously-mentioned adaptations of the exercise yards. Further, a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells. Another positive development was that the special "handcuffs regime" (cf. paragraph 8 of CPT/Inf (98) 15) had not been applied in respect of any inmate since 1999.

However, despite these welcome developments, the regime in the unit was essentially the same as in 1997, and the prison’s management acknowledged that there had been "no change in most of the rules". Although the official allowance for activities was generous (50 or more hours per week), in practice, most inmates’ out-of-cell time did not appear to have increased (averaging 2 to 4 hours per day). The stringing of plastic curtain hooks on short rods, which was performed individually in the cells, continued to be the only work offered. It remained the case that body searches - including anal inspections - were performed on each prisoner at least once a week[13], a process which was invariably perceived as humiliating. Conditions under which visits and sessions with non-custodial staff took place also continued to be very restrictive. Inmates’ remarks to the delegation (e.g. "losing positivity", lacking "future feelings", "beginning to hate people from the heart", and/or having to cope by being "mentally separate") frequently echoed those made in November 1997.

To sum up, inmates held in the EBI remained subject to a very impoverished regime.

39. In an environment which is potentially hazardous to the mental health of prisoners, it is of critical importance to provide a varied programme of appropriate stimulating activities (including education, sport, work of vocational value, etc.). The CPT calls upon the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff.

Following a recommendation made by the CPT in its previous periodic visit report (cf. paragraph 70 of CPT/Inf (98) 15), the Dutch authorities commissioned the University of Nijmegen to carry out an independent study of the psychological state of current and former inmates of the EBI. A preliminary study completed on 17 April 2000 concluded that "an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible." The Dutch authorities have indicated that such an empirical examination has in fact commenced and would be completed by Summer 2003. The CPT trusts that it will receive the results of the study in due course.

One point raised by the preliminary study may be noted, i.e. that the lack of influence of detainees on the severity of the regime being applied to them constitutes a "contradiction in the policy" of the EBI. The Committee would like to receive the views of the Dutch authorities on this statement (cf. in this regard paragraph 41).

d. procedures for placement and extension of placement in the EBI

40. The entity responsible for screening EBI placements[14] is the EBI Selection Board, which is based in the Hague. If a prison director deems that an inmate should be transferred to the EBI, he may submit a proposal to the Board. Persons consulted in the context of placement decisions include a psychiatrist or psychologist[15], a prosecutor, the head of the prisons allocation and classification department, a police liaison officer from the Criminal Intelligence and Investigation Department (GRIP), the prison director making the proposal for EBI placement, and the director of the Nieuw Vosseveld Prison Complex. The prisoner concerned is also given the opportunity to express his views. Further, prisoners subject to placement in an EBI were kept fully informed of the reasons for their placement and, if necessary, of the reason for its renewal. Prisoners may appeal (via their lawyers) to the Council for the Application of Criminal Law (Raad voor de Strafrechtstoepassing en Jeugdbescherming) against decisions to place them in the EBI; however, the appeals have no suspensive effect. Given the importance of the issue at stake, the CPT considers that each prisoner should benefit from legal representation at every stage of EBI placement procedures; it would like to receive confirmation that this is indeed the case.

41. The CPT considers it axiomatic that a prisoner should not be held in a special security unit any longer than the risk which he presents makes necessary. This calls for regular reviews of placement decisions. Such reviews should always be based on the continuous assessment of the individual prisoner by staff specially trained to carry out such an assessment.

EBI placements are reviewed once every 6 months. However, the CPT is concerned by the rationale frequently given for decisions to extend the placement. A review of the files of each inmate in the EBI revealed that such decisions often cited reasons identical to those for the initial placement (typically, the nature of the offence and the public outcry which would be caused by an escape). Even if the behaviour displayed by a particular inmate was evaluated as cooperative, friendly, etc., that did not appear to carry much weight as far as the decision to renew placement was concerned. This is a highly questionable approach, which provides no incentive to detainees and, as such, may augment the potential hazards to their mental health. The CPT recommends that the criteria for the prolongation of placement in the EBI be defined more precisely.”

The Netherlands Government responded to these findings in the following terms (CPT/Inf (2003) 39, excerpt):

“The "Extra Security Institution" at the Nieuw Vosseveld Prison Complex

recommendations

- appropriate steps to be taken to ensure that it is physically possible for staff to enter rapidly any part of the EBI in order to deal with incidents of inter-prisoner violence (paragraph 36)

&

- the regulatory framework should be reviewed in order to ensure that it permits rapid staff intervention in cases involving inter-prisoner violence (paragraph 36)

Response: The Government wishes to stress that when a fight breaks out in the EBI, staff intervene as soon as possible. It goes without saying that rapid intervention is crucial. It is also possible as:

- EBI prisoners are kept under close supervision, allowing inter-prisoner violence to be detected quickly;

- the high staff ratio ensures that sufficient staff can quickly be at the scene of a fight; all rooms are easily accessible;

- prisoners are kept in groups of no more than four persons so that, despite the rule that staff must outnumber prisoners, action can be taken quickly.

Moreover, efforts are being made to increase the scope for interaction between staff and prisoners, as this will alert staff to potential trouble or problems between prisoners.

- the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff (paragraph 39)

Response: Prisoners in the EBI spend a total of about 52 hours a week on out-of-cell activities, and these activities are no less varied than in other prisons. They include exercise, visits, sport, work, education and recreation. Not all prisoners take part in all activities. What they do depends partly on interest and ability. The work in the EBI is simple. However, it is difficult to provide work that is more varied and yet meets security requirements. In principle, work in the EBI is done jointly. The Government refutes the claim that, on average, prisoners participate in activities for no more than between two and four hours a day. In fact they spend an average of four to five hours a day in out-of-cell activities.

The Government agrees that prisoners and staff should have more contact. Fenced-off walkways for staff have now been erected in the exercise yards. They provide more opportunities for informal contact and interaction between prisoners and staff.

The number of searches has been sharply reduced since the opening of the EBI. Besides a weekly search during cell checks, searches are carried out after visits to areas containing potentially dangerous objects, such as the hairdresser’s or the doctor’s or dentist’s surgery, and after contact with the outside world, such as visits. Searches are still necessary from the point of view of security. The Government would point out that searches are also conducted in ordinary prisons.

On 4 February 2003, in two separate cases against the Netherlands, the European Court of Human Rights ruled that: "the combination of routine strip-searching with the other stringent security measures in the EBI amounted to inhuman or degrading treatment in violation of article 3 of the Convention. There has thus been a breach of this provision. (Van der Ven v. the Netherlands, Application no. 50901/99, ECtHR 4 February 2002, § 63; see also Lorsé et al v. the Netherlands, Application no. 52750/99, ECtHR 4 February 2002, § 74). These judgments and other considerations have prompted the Government to stop routine weekly searches in the EBI over a long period of time. The EBI’s regulations will be amended.

- the criteria for the prolongation of placement in the EBI to be defined more precisely (paragraph 41)

Response: The Government has taken this recommendation to heart and changed the procedure. From 1 December 2002 the following procedure will apply.

Placement

Reasons must be given for any decision to place a prisoner in the EBI. They must be substantiated by facts demonstrating that the prisoner is highly likely to abscond or poses a danger to the community.

Extension

Reasons must be given for any decision to extend a prisoner’s placement in the EBI, with reference to the original placement decision. This might involve confirming or amending the original reasons for the placement, or producing new facts or motives. Although prisoners are assigned to the EBI solely on the grounds of their risk that they will abscond or pose a threat to the community, the decision to extend a placement also takes account of their behaviour in detention. This is important when prisoners are transferred from the EBI, since it influences the selection of the prison to which they are to be transferred. ...

requests for information

- the results of the "empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners", being conducted by the University of Nijmegen (paragraph 39)

Response: The study is expected to be completed by autumn 2003 as indicated. As soon as the findings are available, the Government will forward them to the Committee.

- the views of the Dutch authorities on the statement, made in the preliminary study carried out by University of Nijmegen, to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a "contradiction in the policy" of the EBI (paragraph 39)

Response: The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime. However, opportunities to exercise influence are necessarily more restricted in the EBI than in other prisons because of the nature of the system. The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society. Placement in the EBI is mainly determined by considerations of safety and security. In this sense the EBI differs from other prisons. The emphasis on safety and security means that placement in the EBI does not depend on a prisoner’s behaviour but on the risk he represents.

- confirmation that each prisoner has the benefit of legal representation at every stage of EBI placement procedures (paragraph 40).

Response: The Government can assure the Committee that EBI prisoners have access to legal representation at every stage of every procedure. Counsel can help them lodge objections or appeals against decisions to extend their placement in the EBI, or request a transfer to another prison or wing. Many EBI prisoners engage a lawyer themselves. Those who cannot afford legal fees qualify for legal aid under the terms of the Legal Aid Act.”

COMPLAINTS

The applicant initially complained that his detention in the EBI detention facility as from 26 June 1998 constituted “inhuman” or at the very least “degrading” treatment and punishment within the meaning of Article 3 of the Convention and, furthermore, that his detention there entailed unjustified interferences with his right to respect for his family and private life under Article 8 of the Convention in that he was subjected to a great number of control measures in the EBI, including routine strip‑searches, and in that he was not allowed to communicate with his close relatives – in particular his mother and his youngest child – in Kurmancî.

In his submissions of 30 August 2004 and 8 September 2005, the applicant further complained that the frisking and the random strip-searches to which he had been subjected in the EBI after 1 March 2003 were equally contrary to his rights under Article 3 and Article 8 of the Convention.

THE LAW

1. The applicant complains that his detention in the EBI between 26 June 1998 and 24 December 2003 constituted “inhuman” or at the very least “degrading” treatment and punishment within the meaning of Article 3 of the Convention on account of the great number of control measures, including frisking and strip-searches, to which he was subjected.

Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates the general considerations as set out in its judgments in the similar cases of Van der Ven v. the Netherlands (no. 50901/99, §§ 46-53, ECHR 2003-II) and Lorsé and Others v. the Netherlands (no. 52750/99, §§ 58-65, 4 February 2003) and its findings in these cases.

a) To the extent that the application concerns the weekly routine strip‑searches to which the applicant was subjected between 16 July 2001 and 21 November 2002, the Court considers that it cannot determine on the basis of the case file the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b) Having found no indication in the case file that, in his appeals against the prolongations of his stay in the EBI before 16 July 2001 or his complaints to the EBI Complaints Commission, the applicant has complained, either in form or substance, that the EBI detention regime infringed his rights under Article 3 or any other provision of the Convention, the Court finds that, in so far as the present complaint relates to strip-searches having been carried out before 16 July 2001, the applicant has failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention.

c) As regards the routine weekly strip-searches to which the applicant was subjected between 21 November 2002 and 1 March 2003, the Court notes that the applicant’s complaints of the strip-searches carried out on 21 November and 16 December 2002 were declared inadmissible by the Appeals Board on 1 March 2004 for having been filed out of time. Consequently, also this part of the application must be rejected for failure to exhaust domestic remedies (see Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996‑IV, p. 1210, § 66; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).

d) In respect of the remaining routine weekly strip-searches to which the applicant was subjected between 21 November 2002 and 1 March 2003, the Court notes that the applicant’s complaints of these strip-searches were accepted as well-founded in the decisions 16 September 2003 and 1 March 2004 of the Appeals Board, who concluded, in the light of the Court’s findings in the above-cited judgments in the cases of Van der Ven and Lorsé, that these routine strip‑searches were contrary to the applicant’s rights under Article 3 and, for that reason, awarded the applicant compensation.

The Court reiterates that an applicant is deprived of his or her status of victim if the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Constantinescu v. Romania, no. 28871/95, § 40, ECHR 2000-VIII). The Court therefore considers that, assuming that the applicant has filed a complaint at the domestic level about every routine strip-search to which he was subjected during this period, in respect of the remaining routine strip-searches carried out between 21 November 2002 and 1 March 2003, the applicant can no longer claim to be a victim within the meaning of Article 34 of the Convention and that this part of the application must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention.

e) As regards the strip-searches to which the applicant was subjected after 1 March 2003, the Court notes that, in its decision of 1 March 2004, the Appeals Board considered that a frequency of random strip-searches, not based on any particular reason, not exceeding an average of twice a month was acceptable and, in so far as the random strip-searches to which the applicant had been subjected after 1 March 2003 had exceeded this frequency, awarded him compensation.

It follows that, to the extent that the applicant was subjected to random strip-searches carried out after 1 March 2003 in excess of a frequency of twice a month, the applicant can no longer claim to be a victim within the meaning of Article 34.

In respect of the remaining strip-searches carried out after 1 March 2003, the Court considers that the applicant’s situation differs from the situation examined in the above-cited cases of Van der Ven and Lorsé on two important points. In the first place, it no longer concerned weekly routine checks but random checks and, secondly, the frequency of such checks was in principle not to exceed an average of twice a month.

The Court notes the applicant’s personal background as well as the reasons for his placement in the EBI, which are not subject to review by the Court. There is therefore no reason to question the assessment made by the domestic authorities as regards the necessity of the applicant’s placement and stay in the EBI. The Court further finds that, unlike the situation in the cases of Van der Ven and Lorsé, it has not been demonstrated that the random strip-searches to which the applicant was subjected after 1 March 2003 and/or the three incidental strip-searches based on particular reasons to which he was subjected on, respectively, 31 January, 27 May and 23 June 2003, had such adverse consequences on his mental health that it gave rise to grave concerns at the material time. In particular, it does not appear from the case file that, during his stay in the EBI, the applicant sought to consult a social worker or any mental health professional on account of any mental health problems developed by him in the EBI. It is true that, on an unspecified date after his transfer to another prison with a different detention regime on 24 December 2003, the applicant did seek the opinion of a psychiatrist on his mental health condition, and that the latter concluded on an unspecified date in March 2004 that the applicant had developed certain mental problems on account of his stay in the EBI. However, it does not appear from the applicant’s submissions that he had informed the Appeals Board, during the proceedings on various appeals filed by him and which were determined by the Appeals Boards on 1 March 2004, that an examination of his mental health was being conducted and, on that ground, sought a stay of these proceedings in order to submit the conclusions of that examination. There is furthermore no indication in the case file that the applicant, in the proceedings which led to the Appeals Board’s decision of 11 August 2004, submitted or relied on the findings of this psychiatrist. Consequently, these findings have not been taken into account by the Appeals Board in its rulings on the applicant’s appeals concerning his being subjected to random strip-searches after 1 March 2003 and, pursuant to Article 35 § 1 of the Convention, cannot be considered by the Court in its assessment of these rulings.

Although the Court accepts that the applicant, being already subjected to a great number of stringent control measures, may have perceived the random strip-searches carried out after 1 March 2003 and/or the three incidental strip-searches in 2003 which were based on particular reasons as awkward, debasing and humiliating, it cannot find that – in the particular circumstances of the applicant’s case – to be subjected to random strip-searches with a frequency not exceeding an average of twice a month or to incidental strip-searches based on particular reasons should be regarded, in itself or on account of having had such adverse effects on the applicant’s mental health, as amounting to treatment attaining the minimum level of severity required in order to fall within the scope of Article 3 of the Convention.

It follows that, to the extent that the applicant was subjected to random strip-searches after 1 March 2003 with a frequency not exceeding twice a month and to three incidental strip-searches in 2003 which were based on specific reasons, this part of the application must be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

f) In so far as the applicant complains that the control measures, other than strip-searches, to which he was subjected in the EBI, including frisking, are incompatible with his rights under Article 3 of the Convention, the Court finds that these measures cannot be regarded as attaining the threshold of inhuman or degrading treatment within the meaning of Article 3.

Consequently, it follows that this part of the application must also be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant further complains that his detention in the EBI between 26 June 1998 and 24 December 2003 entailed interferences with his right to respect for his family and private life under Article 8 of the Convention in that he was subjected to a great number of control measures, including frisking, strip‑searches and a prohibition to use Kurmancî in his contacts with his relatives. According to the applicant, these interferences with his rights under Article 8 § 1 cannot be regarded as justified under the second paragraph of this provision.

Article 8 reads, in its relevant part, as follows:

“1. Everyone has the right to respect for his private and family life, ... and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

a) In so far as this complaint relates to the weekly routine strip-searches to which the applicant was subjected between 16 July 2001 and 21 November 2002, the Court considers that it cannot determine on the basis of the contents of the case file the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

b) As regards the routine weekly strip-searches to which the applicant was subjected before 16 July 2001 and between 21 November 2002 and 1 March 2003, the Court considers, recalling its considerations as regards these routine strip-searches in its examination of the applicant’s complaint under Article 3, that this part of the complaint must be rejected, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

c) In respect of the applicant’s complaints about having been repeatedly frisked during his stay in the EBI and about the random strip-searches to which he was subjected after 1 March 2003, the Court considers that such control measures interfered with the applicant’s right to respect for his private life within the meaning of Article 8 § 1. It must therefore be examined whether these interferences were justified under the second paragraph of this provision, namely whether they were “in accordance with the law”, pursued one or more legitimate aims listed in paragraph 2 and, in addition, were “necessary in a democratic society”. The notion of “necessity” for the purposes of Article 8 means that the interference must correspond to a pressing social need, and, in particular, must remain proportionate to the legitimate aim pursued.

The Court notes that the control measures at issue were based on the [1999] Prisons Act and the EBI house rules, and it has found no reasons for holding that these measures were not ‘in accordance with the law”. It also accepts that they pursued the legitimate aim of the prevention of disorder or crime within the meaning of Article 8 § 2.

As to the question whether these control measures were “necessary”, the Court notes that the applicant was held in the EBI because the authorities thought it likely that he would attempt to escape and that violence would be deployed in doing so, and in order to prevent his “liquidation”. The Court reiterates that the domestic authorities’ assessment of the necessity of the applicant’s placement and stay in the EBI are not subject to review by the Court. It has further previously found that body and strip-searches may be necessary on occasions to ensure prison security or to prevent disorder or crime and that the EBI control measures were established in order to prevent escapes by verifying that detainees in the EBI had not obtained or were not holding objects which could be used in an attempt to escape (see Van der Ven, cited above, § 60 with further references, and § 71).

In these circumstances, the Court accepts that the frisking complained of can be reasonably regarded as necessary in a democratic society within the meaning of Article 8 § 2. As regards the strip-searches to which the applicant was subjected after 1 March 2003, the Court notes that these were carried out on a random basis whereas the frequency of these random searches was, in principle, not to exceed a maximum of twice a month. Further bearing in mind that it has not been demonstrated that these strip-searches had such adverse consequences on the applicant’s mental health that it gave rise to grave concerns at the material time, the Court cannot find that an unreasonable balance was struck between, on the one hand, the applicant’s right to respect for his physical integrity and, on the other, the authorities’ interests in maintaining strict security measures in the EBI. The Court, therefore, is of the opinion that the random strip-searches at issue cannot be regarded as going beyond what was necessary in a democratic society to attain the legitimate aim pursued.

It follows that this part of the complaint must be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

d) The applicant further complained that the prohibition to use Kurmancî in his contacts with his relatives constituted an unjustified interference with his rights guaranteed by Article 8 § 1. On this point and to the extent that, as regards this complaint, the requirements of Article 35 § 1 of the Convention have been complied with, the Court reiterates that any detention, lawful for the purposes of Article 5 of the Convention, by its nature entails limitations on a detainee’s private and family life. Whilst it is an essential part of a prisoner’s right to respect for family life that the prison authorities should assist him in maintaining contact with his family, the Court recognises at the same time that some measure of control over prisoners’ contacts with the outside world is called for and is not of itself incompatible with the Convention (see Van der Ven, cited above, § 68; and Lorsé and Others, cited above, § 82).

Accepting that the prohibition complained of constituted an interference with the applicant’s right to respect for his family life and correspondence within the meaning of Article 8 § 1, it must be determined whether it was justified under the second paragraph of this provision.

The Court notes that this prohibition was based on the [1999] Prisons Act and the EBI house rules, the latter providing that, in contacts with the outside world, detainees in the EBI can only use a limited number of languages, i.e. Dutch, English, French, German, Spanish, Italian, Turkish or Moroccan. The Court considers that the prohibition was thus “in accordance with the law”. It further has found no reason to doubt that the prohibition was aimed at the prevention of disorder or crime and was therefore in pursuit of a legitimate aim under Article 8 § 2.

As to the question whether the prohibition was necessary in a democratic society, the Court notes that, under the EBI detention regime, detainees are allowed, within certain constraints, contacts with the outside world but that – with the exception of privileged contacts – all correspondence and telephone calls are screened for security reasons, and that, in order to enable an adequate supervision of such contacts, detainees are only allowed to use a limited number of specifically designated languages, including Turkish. The Court further notes that the security measures in the EBI are designed to prevent escapes and that the screening of detainees’ contacts with the outside world is aimed at ensuring that detainees do not obtain or exchange information relating to any escape attempt (see Van der Ven, cited above, § 71). Further noting the reasons given by the Appeals Board in its decision of 22 January 2004 for rejecting the applicant’s complaint about being prohibited to use Kurmancî in his contacts with his relatives, and considering that it has not been established that it would be impossible for the applicant to use Turkish or any other permitted language in his contacts with his family, the Court cannot find that an unreasonable balance was struck between the applicant’s right to respect for his family life and correspondence and the authorities’ interest in maintaining the strict EBI security rules.

It follows that this part of the complaint must also be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints under Articles 3 and 8 of the Convention concerning the weekly routine strip‑searches to which he was subjected between 16 July 2001 and 21 November 2002;

Declares the remainder of the application inadmissible.

Vincent BergerBoštjan M. Zupančič
RegistrarPresident

[12] The National Health Inspectorate examined whether the victim, who was suffering from a mental disorder, but was refusing medication, was receiving adequate psychiatric care and whether he was fit to be placed in the unit. The Inspectorate concluded that "although compulsory treatment would have been preferable, it cannot be said… that this is a case of [medical] carelessness or irresponsible action".

[13] Each prisoner was also subjected to such a search before and after being interviewed by members of the CPT's delegation.

[14] Candidates for placement in the EBI include: prisoners who have escaped or attempted to escape through violent means; those who have displayed violence against prison staff; organised crime leaders, whose organisations have the means to help them to abscond; and prisoners whose escape would cause a major public outcry.

[15] In its report prepared following the death of an EBI inmate (cf. paragraph 35 above), the National Health Inspectorate recommended that an independent expert on behaviour (i.e., a psychologist from the prisons allocation department) examine persons before a decision is taken on placement in the EBI, as well as in the context of periodic reviews. If necessary, the expert should also seek the opinion of a forensic psychiatrist.

Full & Egal Universal Law Academy