SYLLA v. THE NETHERLANDS

THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14683/03
by Béliard SYLLA
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 29 April 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Béliard Sylla, is a French national who was born in 1966 and is 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.

On 17 February 1998, the applicant was detained in the Netherlands on the basis of a request for his extradition by the authorities of Germany, where he was suspected of having committed a bank robbery and, during his subsequent flight and pursuit by the police, of having taken several hostages and of having shot and killed one person. On 4 November 1998, he was extradited to Germany where, by judgment of 21 May 1999, the Duisburg Regional Court (Landgericht) convicted the applicant of extortion, attempted homicide, homicide and hostage-taking and sentenced him to life imprisonment.

Pending the determination of a request under the Enforcement of [Foreign] Criminal Judgments (Transfer) Act (Wet overdracht tenuitvoerlegging strafvonnissen; “WOTS”) for the applicant to be allowed to serve this sentence in the Netherlands where he had lived since early childhood, the applicant was transferred to the Netherlands on 4 July 2000.

On 3 October 2000, in accordance with the provisions of the WOTS, the Regional Court (arrondissementsrechtbank) of The Hague allowed the execution of the applicant’s sentence to take place in the Netherlands and, considering that also under the Netherlands sentencing rules a life sentence fitted the nature and seriousness of the offences, the circumstances in which they had been committed and the person and personal circumstances of the applicant, imposed a life sentence. The applicant filed an appeal in cassation against this ruling with the Supreme Court (Hoge Raad).

On 26 June 2001, the Supreme Court accepted the applicant’s appeal in cassation against this ruling and quashed the decision of 3 October 2000. It held that the Regional Court had failed to examine whether or not, as regards the possibilities of early or conditional release for persons sentenced to life imprisonment, the applicant’s situation in the Netherlands would be less advantageous than in Germany. It remitted the applicant’s case to the Amsterdam Regional Court for a fresh decision. At the time of the introduction of the application, the proceedings before the Amsterdam Regional Court were still pending.

1. The applicant’s detention in the Netherlands after 4 July 2000

Following his transfer from Germany to the Netherlands on 4 July 2000, the applicant was initially detained in an ordinary remand centre (huis van bewaring) in Rotterdam. On 5 December 2000, a number of items (a whet stone attachment for a rotary grinder, knotted sheets, a rope and a metal hook) were found in his cell. The applicant was subsequently transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in the Nieuw Vosseveld Penitentiary Complex in Vught.

On 21 December 2000, 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 EBI which is part of the Nieuw Vosseveld Penitentiary Complex. His detention in the EBI 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).

2. The decision of 22 May 2002 prolonging the applicant’s stay in the EBI

On 27 May 2002, as he had done in respect of the previous prolongation decisions, the applicant filed an appeal with the Appeals Board against the decision of 22 May 2002 prolonging his stay in the EBI by six months. He argued, inter alia, that the EBI detention regime was in violation of Articles 3 and 8 of the Convention, that he was suffering from sarcoidisis and that the climate in the EBI had a very negative effect on his health. On 1 November 2002, the Appeals Board rejected his appeal. In so far as relevant, its decision reads as follows:

“On the basis of Article 6 of the Regulation selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, which has entered into force on 1 October 2000, detainees may be placed in the maximum-security institution who:

a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of danger of recidivism of serious violent crimes, or

b. in the event of an escape, would pose an unacceptable risk to society, the risk of escaping being, as such, of lesser importance.

... The Appeals Board considers as follows.

On the occasion of an inspection of the [applicant’s] cell in the [Rotterdam] remand centre on 5 December 2000 a whet stone attachment [for an electric device], a roll of ‘rope’ [made from] plaited strips of sheet and a long rope with a hook, made from a broom handle with an attached hook made from an aluminium handle from a floor sweeper were found. In addition a crack in the cell window was noted. The weight of these serious and rather recent facts justifies the finding that the [applicant] at present still poses an extreme risk of escape. In this connection [the Appeals Board] notes that the 1998 incidents mentioned by the [EBI] selection officer have not played a role in reaching this finding. These incidents concern a knife found in January 1998 in a bus in which the [applicant] and three other detainees had been transported, visitors of the applicant who in May 1998 had remained in the car for a remarkably long time and observed the detention facility, a fork going missing from the applicant’s cell and the displaying of odd behaviour in the visitors’ room. Those incidents have not led to a placement of the [applicant] in the EBI at that time and the [applicant], after a stay in the National Segregation Unit, was transferred to an ordinary remand centre. It remains unknown whether the knife belonged to one of the detainees who had been transported by the bus.

Noting the very violent crimes the [applicant] is suspected of having committed and the subsequent pursuit in Germany and the Netherlands during which persons have been taken hostage, the [applicant] – in the event of an escape – would pose an unacceptable risk to society in terms of danger of recidivism of serious violent crimes.

The Appeals Board concludes that the [applicant], noting the above considerations, falls within the category [referred to in Article 6 under a. of the Regulation selection, placement and transfer of detainees].

As regards the [applicant’s] reliance on [the Convention], the Appeals Board considers that the EBI regime is not in violation of the prohibition set out in Article 3 of the Convention. An interference with the right to respect for private and family life set out in Article 8 of the Convention is permitted as long as such interference is in accordance with the law and necessary in a democratic society for, inter alia, the prevention of disorder and crime.

On the basis of the documents obtained it appears that the examination [whether the applicant suffers from sarcoidosis] is still ongoing. In these circumstances, the argument [based on this disease] cannot (for the time being) succeed.

The Appeals Boards, noting the above, finds that the decision to prolong the applicant’s stay in the EBI is lawful and that, weighing up all the interests involved, it cannot be considered as unreasonable or unjust.”

No further appeal lay against this decision.

3. The decision of 19 November 2002 prolonging the applicant’s stay in the EBI

By decision of 19 November 2002, the applicant’s stay in the EBI was prolonged by a further period of six months. He again filed an appeal with the Appeals Board in which he argued, inter alia, that the EBI regime was in violation of Articles 3 and 8 of the Convention, in particular as regards strip-searches in the EBI and the conditions in respect of receiving visits. He submitted that the EBI regime had adverse effects on his mental and physical health.

On 25 March 2003, the Appeals Board dismissed the appeal. It held, in so far as relevant:

“In its decision of 1 November 2002, the Appeals Board still found that the [applicant] poses an extreme risk of escape. ... The Appeals Board notes that, since then, there have been no signs indicating a possible escape of the [applicant]. Noting this, it is of the opinion that at present lesser weight is to be attached to the discovery in December 2000 and that it can no longer be said that the [applicant] poses an extreme danger of escape.

However, noting the very violent offences the [applicant] is suspected of having committed and the subsequent pursuit having taken place in Germany and the Netherlands, in which people have been taken hostage and one person was killed, the [applicant], in case of an escape, does pose an unacceptable risk to society.

The Appeals Board therefore concludes that the [applicant], noting the above considerations, falls within the category [referred to in Article 6 under b. of the Regulation, selection, placement and transfer of detainees].

As regards the applicant’s arguments based on Articles 3 and 8 of the European Convention of Human Rights, the Appeals Board considers that, in compliance with the [1999] Prisons Act, it reviews decisions of the selection officer, in the instant case the decision to prolong the [applicant’s] stay in the EBI. Consequently, it does not review the underlying detention regime as such and, therefore, the examination of the question whether or not the regime is in violation of Articles 3 and 8 of the Convention [falls outside the scope of the present appeal proceedings]. The Appeals Boards considers, in any event, that – having regard to the case-law of the European Court of Human Rights – it cannot be held that the currently existing EBI regime must be regarded as being in violation of the Convention.

It has not appeared from the documents that the applicant’s disease forms a contra-indication for a longer stay in the EBI.

The Appeals Boards, noting the above, finds that the decision to prolong the applicant’s stay in the EBI is lawful and, weighing up all the interests involved, that it – albeit on another ground – cannot be considered as unreasonable or unjust.”

No further appeal lay against this decision.

On 30 June 2003, the applicant was transferred from the EBI to another prison with a different regime.

4. Complaints filed by the applicant with the EBI Complaints Commission

On 22 January 2002 the applicant filed a complaint with the Complaints Commission (beklagcommissie) of the EBI’s Supervisory Board (Commissie van Toezicht) about, inter alia, the frequency of his being frisked on a daily basis and of being subjected to weekly routine strip-searches. On 8 April 2002 the Complaints Commission declared this complaint inadmissible. Considering that the control measures complained of were based on general rules applicable in the EBI, the Complaints Commission held that the complaint was not directed against a decision taken by or on behalf of the Director against which a complaint could be filed under the terms of Article 60 § 1 of the [1999] Prisons Act.

The applicant’s appeal against this decision was rejected by the Appeals Board on 21 June 2002. It reiterated its case-law that in principle no complaint can be filed against a regulation applicable to all detainees unless its application had allegedly fallen short of the exigencies of due care, but that this was not at issue in the applicant’s case.

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 against a total of 11 rulings given on complaints filed by him to the EBI Complaints Commission on unspecified dates in 2003. These appeals concerned inter alia:

a.1) a routine strip-search carried out on 10 February 2003 at the occasion of a cell inspection;

a.2) eleven strip-searches carried out at random after 1 March 2003;

a.3) a strip-search other than following a cell inspection carried out on 4 February 2003; and

b. the manner in which the applicant was strip-searched on 4 February 2003 and 16 May 2003.

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. 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 (Penitentiare Beginselenwet) 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 concerns the strip-searches carried out on 4 February 2003, 10 February 2003, 5 March 2003, 12 March 2003, 20 March 2003, 18 April 2003, 24 April 2003, 28 April 2003, 1 May 2003, 9 May 2003, 16 May 2003, 23 May 2003 and 27 May 2003.

3.9. The complaint is well-founded as regards the weekly routine strip-search after the cell inspection in the period before 1 March 2003 (part a.1). This strip-search is not compatible with Article 3 of the Convention, in particular given the frequency of such [routine strip-searches]. 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 two 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 also not otherwise appeared that there were any new reasons necessitating weekly strip-searches. It has further been taken into account that the [applicant] was also subjected to a great number of other stringent security measures.

As the legal effects of the decision to carry out a routine strip-search after cell inspection prior to 1 March 2003 (on 10 February 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 € 5.

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 [11] strip-searches carried out [between 5 March and 27 May 2003] (part a.2). Already in previous decisions, the Appeals Board has adopted the position that Article 29 of the [1999] Prisons Act allows for frisking and strip-searches on a random basis. Unlike the provisional-measures judge (voorzieningenrechter) 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 noting 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 three times in March 2003, four times in April 2003 and five times in May 2003.

As the [applicant], without any particular reason, has been subjected to strip-searches in March, 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 1 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 are in excess of twice a month, which in this case is to be calculated over the period between 1 March 2003 and 1 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 fix the compensation at € 25.

3.11. The complaint under a.3 concerns a strip-search on 4 February 2003 (part a.3). It concerns a strip-search with an incidental character and based on a particular ground [i.e. a pen having gone missing from the applicant’s cell]. The existence of a particular ground is not disputed. These [kind of] strip-searches are for the [applicant] of an upsetting nature also bearing mind 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 complaint is unfounded.

3.12. As regards the complaints about the manner in which two strip-searches, namely on 4 February 2003 and 16 May 2003 (part b), were carried out, the following applies. The Appeals Board finds it sufficiently plausible that being strip-searched is perceived by the [applicant] as (mentally) burdensome. However, it finds it insufficiently demonstrated that the impugned strip-searches were carried out in a manner which is not in accordance with the applicable rules in the institution. This part of the complaints must therefore be declared unfounded.”

No further appeal lay against this decision.

In another decision taken on 1 March 2004, the Appeals Board examined the applicant’s appeal against, inter alia, a decision taken on 3 October 2003 on a complaint filed by him about four random strip-searches to which he had been subjected on 25 March, 9 April and 11 and 23 June 2003. The Appeals Board’s ruling, in its relevant part, reads:

“3.6. The present case (still) concerns the [4] strip-searches carried out [between 25 March and 23 June 2003]. ...

In its ruling [on another appeal] of 1 March 2004, the Appeals Board has accepted appeals concerning random strip-searches carried out [in the months of March, April and May 2003], in so far as the frequency of those strip-searches exceeded an average of twice a month, to be calculated over [those three months]. The strip-searches of 25 March and 9 April 2003 fall within that period and, therefore, increase the above-cited frequency of random strip-searches in the period between March-May 2003. For this reason, the complaint, in so far as directed against the random strip-searches of 25 March 2003 and 9 April 2003, must be declared well-founded.

As the legal effects of the above-cited [impugned] decision 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 € 10.

As regards the strip-searches in the month of June 2003, although it can be assumed that also those random strip-searches with a frequency as mentioned above were very burdensome for the [applicant], the other stringent security measures also being taken into account, they cannot be regarded as in violation of a legal rule and as yet it can also not be said that these strip-search decisions under this new policy are unreasonable or unjust. ...

[The Appeals Board] accepts the appeal as regards the strip-search of 25 March 2003 and rejects as unfounded [the remainder of the appeal concerning random strip-searches carried out after 1 March 2003] and decides that the [applicant] is entitled compensation in the amount of € 10.”

No further appeal lay against this decision.

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 complained of a violation of his rights under Article 3 of the Convention in that, by rejecting his appeals against the decisions of 22 May 2002 and 19 November 2002 prolonging his stay in the EBI, the Appeals Board authorised his being subjected to strip-searches between 22 May 2002 and 30 June 2003, which strip-searches must be regarded as being contrary to Article 3.

THE LAW

The applicant complained that the routine strip-searches to which he was subjected to in the EBI between 22 May 2002 and 30 June 2003 violated his rights under Article 3 of the Convention, which provides 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 22 May 2002 and 4 February 2003, the Court cannot determine on the basis of the case file the admissibility of this part of the application and 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-search to which the applicant was subjected on 10 February 2003, the Court notes that the applicant’s complaint about this routine strip-search was accepted as well-founded in the Appeals Board’s decision of 1 March 2004, 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 this search was 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, as regards the strip-search of 10 February 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.

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.

The Court considers that the applicant’s situation, as regards the remaining strip‑searches to which he was subjected after 1 March 2003, 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 incidental strip-search based on a particular reason to which he was subjected on 4 February 2003 had such adverse consequences on his mental health that it gave rise to grave concerns. 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 incidental strip-search of 4 February 2003 which was based on a particular reason 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, on 4 February 2003, to an incidental strip-search based on a particular reason should be regarded 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 one incidental strip-search on 4 February 2003 which was based on a specific ground, this part of the application must be rejected for being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the weekly routine strip‑searches to which he was subjected between 22 May 2002 and 4 February 2003;

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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