SALAH v. THE NETHERLANDS

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 8196/02
by Khalid SALAH
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 13 February 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Khalid Salah, is an Algerian national who was born in 1964 and who is currently serving a 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.

The applicant was placed in pre-trial detention (voorlopige hechtenis) on 1 October 1997 on suspicion of involvement, together with others, in a robbery of a couple in the Netherlands in the course of which the man had been killed before the eyes of the woman, who had been raped several times and who had eventually been killed in Belgium. The criminal proceedings brought against the applicant – in which he stood accused of inter alia rape, deprivation of liberty, murder, theft and robbery – came to an end on 5 September 2000, when the Supreme Court (Hoge Raad) confirmed the judgment handed down by the ‘s-Hertogenbosch Court of Appeal (gerechtshof) on 22 April 1999 in which the applicant had been sentenced to twenty years’ imprisonment. In the meantime, requests for the applicant’s extradition by the authorities of both Germany and Belgium, where the applicant was wanted on grounds of suspicion of various serious offences, had been declared permissible on 18 March 1998 and 24 June 1998, respectively.

The applicant had initially been detained in an ordinary remand centre (huis van bewaring). On 16 January 1998, on the basis of information that the applicant appeared to be playing a central role in the preparation of an escape plan entailing the taking of hostages, he was transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in a Rotterdam detention facility. On 2 February 1998, he returned to an ordinary remand centre, but on 11 May 1998 – on the basis of a report that the applicant and another detainee were involved in smuggling a telephone and arms into the remand centre – he was retransferred to the National Segregation Unit.

On 25 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. On 26 October 2000, on the advice of the EBI special selection board, the applicant’s stay in the EBI was prolonged by the Minister. As the applicant’s conviction had become final in the meantime, he was transferred to the EBI prison unit. 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).

In May 2001, following a fight between the applicant and a co-detainee, the applicant was placed in a so-called individual regime as it was held that his security could not be guaranteed by the institution if he was to come into contact with other detainees. This measure, entailing that the applicant was excluded from communal activities and could only participate in activities on an individual basis, was reviewed and prolonged every fortnight. The applicant unsuccessfully challenged every decision to prolong this measure. The measure was lifted on an unspecified date in May 2002.

By letter of 23 October 2001, the applicant was informed that the Minister of Justice had decided to extend the applicant’s placement in the EBI once again. This letter, in its relevant part, reads as follows:

“From the available information about you, it appears – apart from your membership of a criminal organisation – that you must be qualified as likely to try to escape (vluchtgevaarlijk). In this respect, I inform you as follows.

You are currently detained in connection with the commission, together with others, of very serious, sensation-stirring crimes which have rocked the legal order to a serious degree. In addition you are suspected of having committed very serious crimes in other European countries, entailing extradition requests filed by Belgium and Germany which have been accepted as permissible by the Breda Regional Court. You will be extradited to Belgium. On 20 October 1999, you have been heard by the German police. On 17 April 2001, you have been heard by the Belgian authorities. The expectation is that you will be confronted with (a) lengthy prison sentence(s) in the aforementioned countries. On 16 January 1998 there were indications concerning your person – in the [ordinary] Breda [remand centre] – from which it appeared that you (and others) intended to escape. It further appeared that it was intended to take staff members hostage. You were to play a central role in the intended actions, aimed at escape. Already at an earlier stage of your detention – also in the Breda [remand centre] – (official) reports had been received from which it appeared that you had the intention of escaping with a visitor’s pass. The above entailed your placement – on 16 January 1998 – in the [Rotterdam] National Segregation Unit.

On 2 February 1998, you were placed in the [ordinary] Middelburg [remand centre]. On 11 February 1998, you reported that you had received clothes and shoes not belonging to you. A clasp knife of 23-25 cm was found in the shoes. You surrendered this knife to a staff member. On 4 April 1998, you bashed in your cell window.

On 6 May 1998, reports concerning your person were received, according to which you were intending to smuggle, via audio equipment, a telephone and/or weapons into the detention centre.

On 11 May 1998, you were again placed in the National Segregation Unit, pending the preparation of a proposal to place you in the EBI.

After you had been placed in the EBI on 25 June 1998, you displayed a particular interest in the security. During transports of others, you observed the course of events closely and which doors opened and which remained closed. You also enquired with staff how well the building was secured, whether conversations were screened and how many detainees the building could host.

Around 30 July 1999, you twice tried to frustrate the EBI security measures, entailing the issuance of a warning to you. In the period between January 2000 and 19 June 2000, you manifested yourself as recalcitrant and pushing back limits, in particular as regards the regime directives in force.

In the period between July 2000 and 23 October 2000, you issued threats against various persons, amongst whom a judge. You declared in this connection ‘that you still knew people outside who would take care of this for you’.

Also in the period between November 2000 and 11 April 2001, you issued threats against EBI staff. You argued that the Direction and the institution’s doctor were to blame for the situation in which you found yourself. In this connection you (further) indicated that these persons would pay for the things that they, in your opinion, had done to you.

From the above, the assumption appears justified that (you realise that) you have nothing more to lose and, in continuation thereof, will seize every opportunity to escape.

After you had been sentenced to life imprisonment in first instance proceedings, you were sentenced to an irrevocable prison sentence of 20 years on account of very serious crimes. In addition, you are suspected of the commission of very serious crimes in various other European countries, having led to extradition requests filed by Belgium and Germany which have been accepted as permissible by the Breda Regional Court. You will be extradited to Belgium. The expectation is that you will be confronted with (a) lengthy prison sentence(s) in the aforementioned countries.

An escape by you would be unacceptable to society. Noting the above as well as the grave concern in society and public opinion for the very serious crimes committed by you, as a result of which the legal order has been rocked to a serious degree, the [EBI] selection board, having heard the selection officer who has spoken with you, advised me, to continue your placement in the EBI. I have taken a decision to that effect.”

As he had done in respect of the previous prolongation decisions, the applicant again challenged the decision to prolong 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, arguing that his (continued) placement in the EBI was inter alia in breach of his rights under Articles 3 and 8 of the Convention.

On 29 January 2002, the Appeals Board dismissed the appeal. It noted that the applicant had been sentenced to twenty years’ imprisonment for very serious crimes giving rise to grave concern in society and public opinion. In addition, he was suspected of having committed serious offences in other European countries, in respect of which Belgium and Germany had sought his extradition. The expectation was that he would be confronted with lengthy prison sentences in both countries. It therefore considered that the applicant, in the event of an escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, the risk of escape being, as such, of lesser importance, i.e. the situation provided for in Article 6 under b. of the Regulation selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000. The Appeals Board further concluded that, having found no facts or circumstances militating against a continuation of the applicant’s stay in the EBI, the decision to prolong his placement 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 arguments under Articles 3 and 8 of the Convention.

By decision of 19 April 2002, the applicant’s placement in the EBI was again prolonged. His appeal to the Appeals Board, in which he again relied on inter alia Articles 3 and 8 of the Convention, was dismissed on 22 July 2002.

The Appeals Board maintained its opinion that the applicant, in the event of an escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, and that the risk of escape was, as such, of lesser importance. In the absence of any facts or circumstances militating against a continuation of the applicant’s stay in the EBI, it also found that the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered as unreasonable or unjust. It did, however, add that – before deciding on a further prolongation of the applicant’s placement in the EBI – the applicant should speak with a psychologist of the Penitentiary Selection Centre (Penitentiair Selectie Centrum) and that the report to be drawn up of this conversation was to be taken into account in the decision-making process.

On 12 May 2003, the applicant was transferred to a prison with an ordinary regime in Maastricht.

The applicant’s psychological condition was examined by the Penitentiary Selection Centre (Penitentiair Selectie Centrum) prior to the decision of 23 October 2001. According to the report of this examination, dated 17 October 2001, the applicant made a powerful impression as a very angry, driven and combative man. He did not display any clear symptoms of depression and his references to suicide appeared to arise from feelings of anger for having been unjustly convicted and placed in the EBI and aimed at “punishing” those around him for what they had done to him. He gave the impression of suffering from a serious personality disorder with mainly narcissistic and anti-social features. After a difficult period, the situation around him had now reasonably stabilised and he had become easier in his dealings with the EBI staff.

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 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):

“a. introduction

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 complained that the conditions of his detention in the EBI detention facility between 25 June 1998 and 12 May 2003, including being subjected to routine strip-searches and other control measures, 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 private life under Article 8 of the Convention in that he was subjected in the EBI to a great number of control measures, including routine strip‑searches, which interferences – in his opinion – cannot be regarded as justified under the second paragraph of Article 8.

THE LAW

1. The applicant complained that the conditions of his detention in the EBI, included being subjected to routine strip-searches, were incompatible with his rights under Article 3 of the Convention, which reads:

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

Reiterating 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, the Court considers that, to the extent that this complaint concerns the weekly routine strip‑searches to which the applicant was subjected during his stay in the EBI, 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.

In so far as the applicant complained under Article 3 of the control measures in the EBI other than the weekly routine strip-searches to which he was subjected during his stay in the EBI and to the extent that this part of the complaint has been substantiated, the Court has found no reasons for holding that, in the applicant’s case, these measures should be regarded as having attained the minimum threshold of severity required for treatment to fall within the scope of Article 3.

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

2. The applicant further complained that his detention in the EBI violated his rights under Article 8 of the Convention in that the weekly routine strip-searches and other control measures to which he was subjected constituted disproportionate and unjustified interferences with his right to respect for his private life.

Article 8 provides, in so far as relevant:

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

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) To the extent that the applicant complained that the weekly routine strip-searches to which he was subjected during his stay in the EBI were in violation of his right to respect for his private life within the meaning of Article 8 § 1, the Court is of the opinion that this complaint must also be brought to the notice of the Netherlands Government in accordance with Rule 54 § 2 (b) of the Rules of Court, inviting the Government to submit written observations on the admissibility and merits of this complaint.

b) In so far as the applicant complained that the other control measures to which he was subjected during his stay in the EBI infringed his rights under Article 8, the Court notes that it has examined two similar cases in the recent past in which it examined these control measures, and concluded that these constituted interferences with the right to respect for private and family life which were justified under Article 8 § 2 in that they were “in accordance with the law” and did not go beyond what is necessary in a democratic society to attain the legitimate aim pursued, i.e. the prevention of disorder or crime (see Van der Ven, above-mentioned, §§ 67-72; and Lorsé and Others, above-mentioned, §§ 81-86).

Having found no reason in the present case to reach a different conclusion, the Court is of the opinion that, as regards the EBI control measures other than routine strip-searches, the facts of the case do not disclose a violation of the applicant’s rights under Article 8 of the Convention.

It follows that this part of the application must be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 1 and 3 of the Convention.

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 during this stay in the EBI;

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.

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