Salah v. the Netherlands

Information Note on the Court’s case-law No. 88

July-August 2006

Salah v. the Netherlands - 8196/02

Judgment 6.7.2006 [Section III]

Article 41

Just satisfaction

Strip-searching of prisoner; civil action introduced after application:violation; article 41 reserved

Article 3

Degrading treatment

Inhuman treatment

Strip-searching of prisoner; civil action introduced after application:violation; article 41 reserved

Article 35

Article 35-1

Exhaustion of domestic remedies

Strip-searching of prisoner; civil action introduced after application:violation; article 41 reserved

Article 46

Article 46-2

Execution of judgment

Strip-searching of prisoner; civil action introduced after application:violation; article 41 reserved

[This summary also covers the Judgment of the case Baybaşin v. Netherlands, no. 13600/02, 6 July 2006]

Facts: The applicant Salah is serving a twenty-year prison sentence in the Netherlands; he is also wanted for serious crimes in other countries. From 11 May 1998 until 12 May 2003 he was held in the maximum security institution (Extra Beveiligde Inrichting, “EBI”) in Vught, Netherlands, where he was subjected to the detention regime described in Van der Ven v. the Netherlands,no. 50901/99, ECHR 2003‑II, which included weekly routine strip-searches. He lodged an application with the Court on 13 February 2002, complaining about these searches; it was communicated to the respondent Government under Articles 3 and 8 of the Convention.

The applicant Baybaşın is serving life imprisonment. He was detained in the EBI from 26 June 1998 until 24 December 2003. He too lodged an application with the Court complaining about the strip-searches, on 28 February 2002, which was communicated under Articles 3 and 8 of the Convention.

On 10 August 2004 the applicant Baybaşın brought civil proceedings in tort against the Netherlands State, seeking compensation for non-pecuniary damage suffered under the EBI regime. These proceedings are still pending. On 11 July 2005 the applicant Salah and a number of other former EBI detainees sought leave to join these proceedings; like the proceedings themselves, this leave request is still pending. Civil courts in the Netherlands have in the past entertained claims in tort brought by former applicants to the European Court of Human Rights; on several occasions they have awarded damages additional to the awards made by the Court under Article 41 (or its predecessor provision, former Article 50).

Admissibility: Exhaustion of domestic remedies: The Government pointed to the applicant’s request for leave to join pending civil proceedings in tort, which proceedings remain pending. The Court points out that an ordinary remedy for challenging a decision to transfer to, or prolong detention in, the EBI existed, of which the applicant in fact availed himself. There is no indication that a civil action against the State has ever been entertained by a domestic civil court on the basis of a finding that this specific remedy before the Appeals Board did not offer sufficient guarantees of fair proceedings or that in such appeal proceedings fundamental legal principles had been breached. Consequently, the Court has found no reason for concluding that, for the purposes of Article 35(1) of the Convention, the applicant should have turned to the civil courts after his appeals to the Appeals Board were rejected. This finding is not altered by the fact that proceedings concerning the applicant’s request for leave to join a civil action brought by another former EBI detainee, filed by the applicant on 11 July 2005, are currently pending before the Regional Court, as these proceedings concern a claim for compensation in respect of non-pecuniary damage comparable to a claim under Article 41 of the Convention.

Conclusion: Preliminary objection dismissed (majority).

Law: Article 3 – Applying its existing case-law, the Court finds that the weekly routine strip-searches complained of amount to treatment contrary to Article 3 of the Convention.

Conclusion: violation (unanimously).

Article 8 – Not necessary to consider the question under this provision also.

Articles 41 and 46 – The unusual situation has arisen whereby an applicant is attempting to bring proceedings in a domestic court aimed at securing a monetary award in respect of non-pecuniary damage for a violation of the Convention even before the Court itself has given judgment, notwithstanding the fact that in the light of the Court’s findings in the cases of Van der Ven and Lorsé and Others, cited above, the instant case can be qualified as a repetitive or “clone” case. As regards claims for damage arising from a violation of a Convention provision, the Court cannot allow proceedings before it and proceedings in a domestic court aimed at precisely the same intended result to be actively pursued in parallel. It makes little difference in this respect whether such parallel domestic proceedings are already pending at the time when the application is lodged with the Court, in which case the application is inadmissible under Article 35(1) of the Convention, or whether the application is lodged with the Court first. The Court’s decision, however, cannot be the same in both cases: the Convention does not contain any provision corresponding to Article 35(1) covering the latter eventuality. For the sake of clarity it is worth noting that the rule that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 of the Convention. In deciding how to address the situation that the applicant has created, the Court must have regard to the object and purpose of the Convention, which are stated in the Preamble to the Convention (most significantly in its fifth paragraph), and to its own task, which is set by Article 19 of the Convention. Under Article 41 of the Convention, the Court may afford just satisfaction to a party injured by a violation of the Convention or its Protocols if the internal law of the High Contracting Party concerned does not allow complete reparation to be made. However, the Court is enjoined to do so only “if necessary”. Consequently, although the Court is sensitive to the effect which its awards under Article 41 may have and makes use of its powers under that Article accordingly, the awarding of sums of money to applicants by way of just satisfaction is not one of the Court’s main duties but is incidental to its task of ensuring the observance by States of their obligations under the Convention. Seen in this light, there can be no doubt of the greater importance of Article 46 of the Convention in comparison with Article 41. Under Article 46, the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, the execution being supervised by the Committee of Ministers. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment. One of the effects of this is that where the Court finds a violation, the respondent State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects. At the individual level as at the level of general measures, the Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, neither the Court nor for that matter the Committee of Ministers having the power or the practical possibility of doing so themselves. If, on the other hand, national law does not allow – or allows only partial – reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate. It should be observed at this point that the Court makes, under Article 41, such awards as in its view constitute “just satisfaction” for the violations which it has found. Once the Court’s judgment has been executed in accordance with Article 46 – that is, once the necessary general and individual measures have been taken to put an end to the violation found and provide redress for its effects – any additional awards over and above those made by the Court are at the discretion of the competent domestic authorities. Such voluntary additional compensatory measures, however, do not have any basis in Article 41 or 46 of the Convention nor in any other provision of the Convention and its Protocols. In the present case only an award for non-pecuniary damage – to be determined on an equitable basis – can be envisaged. However, before examining the claim for compensation in respect of non‑pecuniary damage submitted by the applicant under Article 41, the Court examines what consequences may be drawn from Article 46 for the respondent State in the instant case. It is noted that the new practice as regards strip-searches in the EBI, as applied since 1 March 2003, was found in Baybaşın v. the Netherlands (dec.), no. 13600/02, 6 October 2005, to be compatible with Article 3. Although it is not for the Court, but for the Committee of Ministers, to determine whether such measures are sufficient for the purposes of Article 46, it considers that these measures are likely to prevent further admissible applications to the Court stemming from the same cause. For the remainder, the applicant’s request to join civil proceedings for compensation are still pending, and the Court wishes to take into account – in case it must determine the applicant’s claim under Article 41 for compensation in respect of non-pecuniary damage – the compensation for non-pecuniary damage that the applicant may obtain under domestic law; the question of non-pecuniary damage is therefore not ready for decision. Costs and expenses: information incomplete.

Conclusion: Question reserved (unanimously).

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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