VAN DER VEN v. THE NETHERLANDS

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50901/99
by Franciscus C. VAN DER VEN
against the Netherlands

The European Court of Human Rights (First Section), sitting on 3 April and 28 August 2001 as a Chamber composed of

MrsE. Palm, President,
MrsW. Thomassen,
MrGaukur Jörundsson,
MrC. Bîrsan,
MrJ. Casadevall,
MrB. Zupančič,
MrT. Panţîru, judges,
and Mr  M. O’Boyle, Section Registrar,

Having regard to the above application introduced on 30 August 1999 and registered on 14 September 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties’ oral submissions at the hearing on 3 April 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Franciscus C. van der Ven, is a Dutch national, born in 1949 and currently detained on remand at the Extra Security Institution (Extra Beveiligde Inrichting, hereinafter referred to as “EBI”) which is part of the Nieuw Vosseveld Penitentiary Complex in Vught, the Netherlands. He is represented before the Court by Ms J. Serrarens, a lawyer practising in Maastricht, the Netherlands. The respondent Government are represented by their Agent Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs.

A.  The circumstances of the case

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

The applicant has been detained on remand (voorlopige hechtenis) since 11 September 1995. The criminal proceedings against him, in which he is charged with a number of offences including murder, manslaughter/grievous bodily harm, rape and narcotics offences, are still pending. Most recently, namely on 6 March 2001, the Court of Appeal (Gerechtshof) of ‘s-Hertogenbosch sentenced the applicant to fifteen years’ imprisonment. In addition, it imposed a TBS order (terbeschikkingstelling) with confinement to a secure institution (met bevel tot verpleging van overheidswege). An appeal on points of law is currently pending before the Supreme Court (Hoge Raad).

The applicant was initially detained in ordinary remand institutions (huizen van bewaring). In a letter dated 7 October 1997 to the governor of the remand institution where the applicant was detained at that time, the National Public Prosecutor wrote as follows:

“... I wish to inform you that a seriously increased safety risk exists in relation to [the applicant]. The Detainee Intelligence Information Service (Gedetineerde Recherche Informatie Punt – hereinafter referred to as “GRIP”) has obtained information – which has been examined by myself and which I have found to be sufficiently relevant, reliable and concrete but which information should be protected for reasons of security – to the effect that [the applicant] is intending to escape from detention and to that purpose manages to make contacts outside the penitentiary.

An escape or breakout are liable to be accompanied by assistance from the outside and violence directed at persons.

I would further draw your attention to the fact that it also appears from the aforementioned information that [the applicant] approaches persons, or has them approached on his behalf, in a threatening and intimidating manner.

I advise you to take the appropriate measures to safeguard an uninterrupted continuation of the [applicant’s] detention as well as those measures appropriate to prevent any damage, and in particular damage to persons, occurring outside the penitentiary.”

On 14 October 1997 the governor of the remand institution where the applicant was detained proposed to the special EBI selection board that the applicant be placed at the EBI. In a meeting of the selection board on 24 October 1997, the applicant was selected for placement and he was transferred to the EBI on 29 October 1997.

In a letter of 4 November 1997 the Minister of Justice confirmed the applicant’s placement and informed him of the reasons which had led to that decision having been taken. Reference was made to the letter (referred to as “official report” [ambtsbericht]) of 7 October 1997. In respect of the threats and intimidation, the Minister of Justice wrote that these had not only been exerted on fellow inmates but also on persons outside the remand institution. The applicant was further informed that his escape would pose an unacceptable risk to society. The Minister had also decided that the so-called A regime should apply to the applicant in view of the latter’s threat that he would commit suicide if placed at the EBI.

On 13 January 1998 the applicant lodged a request for a transfer to an ordinary remand institution with the Court of Appeal of ‘s-Hertogenbosch. This request was declared inadmissible by the Court of Appeal in chambers on the same day. The applicant subsequently instituted interim injunction proceedings (kort geding) with the President of the Regional Court of The Hague. The request for an interim injunction was declared inadmissible on 20 February 1998. Hereupon the applicant submitted a second request for a transfer to an ordinary remand institution based on Article 78 § 4 of the Code of Criminal Procedure (Wetboek van Strafvordering; hereinafter referred to as “CCP”) to the Court of Appeal of ‘s-Hertogenbosch. This was rejected on 26 March 1998. The Court of Appeal based its decision on the information obtained by GRIP which had been further elucidated to the Court of Appeal, in confidence, by the Procurator-General at that court at a hearing on 26 March 1998. Neither the applicant nor his counsel were allowed to hear what the Procurator-General told the Court of Appeal. After the applicant and counsel had once again been admitted to the hearing, the Court of Appeal very briefly provided them with some information of what it had been told by the Procurator-General but this did not contain anything about the provenance of the information obtained by GRIP or the dates on which this information had been provided to GRIP.

The applicant then lodged an application under former Article 25 of the Convention with the European Commission of Human Rights (no. 44729/98). This application was rejected by the European Court of Human Rights on 18 January 1999 for non-exhaustion of domestic remedies since the Court found that the applicant had failed to raise either in form or in substance in the proceedings before the Court of Appeal of ’s‑Hertogenbosch the complaints which he wished the European Court to examine.

On 29 October 1998 the Minister of Justice decided that the applicant’s placement at the EBI should be continued. The wording of this decision was almost identical to that of the decision of 4 November 1997. However, the Minister decided that the applicant should no longer be subjected to the A regime.

On 17 December 1998 the applicant again requested the Court of Appeal of ‘s-Hertogenbosch to order pursuant to Article 78 § 4 CCP that he be transferred to an ordinary remand institution, arguing that his placement at the EBI had been unlawful. The applicant explicitly invoked Articles 6 and 8 of the Convention. He submitted that his placement at the EBI had had serious consequences for the possibility to effect his private and family life within the meaning of Article 8 of the Convention: both privacy and contacts with the outside world were severely limited at the EBI. Thus, EBI-inmates were only allowed visits from spouses, parents and children without a glass partition between the inmate and the visitor once a month, on which occasions the only physical contact allowed was a handshake at the beginning and end of the visit. Visits from other relatives (including siblings) were only allowed with such a partition in place. In addition, it was only possible to contact relatives by telephone twice a week for 10 minutes at a time.

As the rights to respect for private and family life were civil rights, the applicant argued that any proceedings decisive for the determination or exercise of those rights should comply with Article 6 of the Convention. His placement at the EBI had been unlawful and contrary to Article 6 of the Convention since neither he nor his counsel had had access to the information which had led to his placement and he had thus not been able to defend himself. He argued that during all the time he had spent in detention he had been a model prisoner and had never given rise to suspicions of the kind contained in the official reports.

At the hearing which took place on 18 February 1999 before the Court of Appeal in chambers, the applicant also submitted that the conditions of his detention at the EBI constituted inhuman treatment contrary to Article 3 of the Convention. In this respect he referred to the findings of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT – see below).

The Court of Appeal in chambers rejected the request by decision dated 16 March 1999. The Court of Appeal held that the reasons contained in the Minister’s decision of 29 October 1998 justified the applicant’s continued placement at the EBI. As to Article 6 of the Convention, the Court of Appeal considered that this provision did not apply to proceedings concerning the penitentiary regime to which a detainee was subjected. It further held that the conditions of detention in the EBI did not breach Article 3 since the EBI regime had a basis in law and the treatment of the applicant under this regime could not be considered as amounting to torture or inhuman or degrading treatment or punishment. As regards Article 8, finally, the Court of Appeal held that the interferences with the applicant’s rights under this provision were justified as they were in accordance with the law and necessary in the interests of, inter alia, public safety.

The applicant does not know for certain but assumes that the information given to the Court of Appeal by the Procurator-General on 26 March 1998 was also available to the Court of Appeal when it decided on this request for a transfer.

The applicant’s placement at the EBI was most recently extended by decision of 10 November 2000, against which decision he lodged an appeal with the Appeals Board (beroepscommissie) of the Central Council for the Application of Criminal Law (Centrale Raad voor Strafrechtstoepassing). On 12 February 2001 the Appeals Board rejected the appeal. Although it held that the applicant could no longer be considered as extremely likely to attempt to escape, it did find that the applicant, in the event of an escape, would pose an unacceptable risk to society in view of the nature of the offences of which he stands accused and of the effects on society and public opinion.

The applicant submits that during his stay at the EBI he is being confronted with feelings of powerlessness and depression. The applicant’s psychological condition has been examined by the Penitentiary Selection Centre (Penitentiair Selectie Centrum) on at least three occasions, prior to a decision on the prolongation of his placement at the EBI being taken. The reports of these examinations, submitted to the Court, and dating 28 October 1999, 13 April and 25 October 2000, state that the applicant has difficulties coping with the EBI regime and that he has experienced periods of depression. The psychologist conducting the examinations expressed as his preference that the applicant be transferred to a particular detention facility with a different regime but noted that this would not be possible as the said facility does not house remand prisoners.

B.  Relevant domestic law and practice

1.  The decision to detain a person in a particular institution

All Netherlands penal institutions fall into one of five security categories, ranging from very limited security (zeer beperkt beveiligd) to extra security (extra beveiligd). The Minister of Justice lays down criteria according to which prisoners are to be selected for each such category (Article 13 (1) and (3) of the Penitentiary Principles Act – Penitentiaire beginselenwet).

The actual selection is carried out by a Ministry of Justice selection official (Article 15 (1) and (3) of the Penitentiary Principles Act).

A special Ministry of Justice circular governs decisions to detain a prisoner in an extra security category institution or EBI (Ministry of Justice circular no. 646188/97/DJI of 22 August 1997).

EBIs are intended for prisoners who, in descending order of importance,

a)  are considered extremely likely to attempt to escape from closed penal institutions and who, if they succeed, pose an unacceptable risk to society in terms of again committing serious violent crimes; or

b)  if they should escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, the risk of escaping being, as such, of lesser importance.

If a prisoner is to be placed in an extra security institution or EBI the advice of a special EBI selection board is sought beforehand.

The decision to detain a prisoner in an EBI is reviewed every six months. The EBI governor must submit a report at corresponding intervals, the purport of which he must discuss with the prisoner. The governor transmits his report to the selection official. If the latter considers that the prisoner’s detention in the EBI should continue, he so informs the EBI selection board, to which it falls to decide. Should the EBI selection board be unable to reach an agreement on the matter, a decision is made by the Director of the Prison System (directeur gevangeniswezen).

Decisions as referred to above are nominally those of the Minister of Justice.

A second Ministry of Justice circular (no. 44716/97/DJ of 20 July 1994) concerns the receipt and collection of information by the Detainee Intelligence Information Service (GRIP) of the Central Criminal Information Department (Centrale Recherche Informatiedienst) relating to, inter alia, detainees. This information includes tip-offs concerning intentions to escape which detainees may be harbouring. The National Public Prosecutor has to examine whether the information is sufficiently relevant, reliable and concrete. If those conditions have been complied with, the information available to GRIP may form the basis for disciplinary measures against detainees, including (if the criteria for selection set out above have also been fulfilled) selection for placement at an EBI.

The information available to GRIP is generally not disclosed to detainees for security reasons and/or the protection of sources.

2.  Legal remedies

Article 78 § 4 CCP stipulates that in its decision to detain the accused on remand the trial court indicates the place where this detention shall take place. Prior to 1 January 1999, if the accused was of the opinion that a decision to detain him at a particular institution of detention was unlawful, he could request the trial court to decide that he would be transferred to another place of detention.

On 1 January 1999 the Penitentiary Principles Act entered into force. Pursuant to the provisions of that Act, if a remand prisoner wishes to contest the selection decision, he may lodge an objection to the selection official (Article 17 (1) of the Penitentiary Principles Act), after which an appeal lies against the decision on the objection. However, no objection need be lodged if the selection official has heard the prisoner before taking his decision (Article 17 (5)).

Appeals against decisions of the selection official are decided by a three-member Appeals Board of the Central Council for the Application of Criminal Law (Article 73 (1) of the Penitentiary Principles Act). The Central Council is constituted of members who are appointed and dismissed by Royal Decree. Its duties include advising the Minister of Justice, at the latter’s request or proprio motu, on matters concerning the application of policy and legal rules relating to the prison system (Articles 4 (1) and 5 (1) of the Prisons Act – Beginselenwet gevangeniswezen). It also has other duties, including the hearing of appeals.

The Appeals Board may delegate the hearing of the prisoner to one of its members or it may decide to dispense with a hearing altogether (Article 73 (4)).

If the Appeals Board considers the appeal well-founded, it may instruct the Minister to make a new decision in which its own decision is to be taken into account, for which it may set a time-limit. It may also rule that its decision is to take the place of the decision appealed against, or confine itself to annulling the latter decision (Article 68 (3) and (4) taken together with Article 73 (4) of the Penitentiary Principles Act).

C.  The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

The CPT visited the Netherlands from 17 until 27 November 1997. Its findings with regard to the (T)EBI (Tijdelijke Extra Beveiligde Inrichting – Temporary Extra Security Institution) and the EBI were the following (Report to the Netherlands Government on the visit to the Netherlands carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 17 to 27 November 1997, CPT/Inf (98) 15, excerpt):

“58. The Nieuw Vosseveld Prison Complex, which is located in a heavily-wooded area of Vught, began life in 1953 as a prison for some 140 young offenders, and has since expanded to become one of the largest prison complexes in the Netherlands. At the time of the CPT’s visit, it had a total capacity of 621 places for young offenders and adult male prisoners.

The focus of the CPT’s visit to the establishment was the national “extra security institution” (unit 5), which provides 35 places for prisoners who have been deemed likely to attempt to escape using violence (17 places for remand prisoners and 18 places for convicted inmates). The unit is located in two distinct buildings: the 11-place “temporary extra security institution” (Tijdelijk Extra Beveiligde Inrichting - (T)EBI) opened in August 1993 and is physically located in one wing of unit 1, while the 24-place, custom-built, “extra security institution” (Extra Beveiligde Inrichting - EBI) was completed in August 1996.

b. material conditions

59. The cells seen by the CPT’s delegation in both the (T)EBI and EBI buildings were of a reasonable size for single occupancy (some 9 m²), appropriately furnished (bed, chair, storage cupboard and table) and equipped with a lavatory and wash basin.

In-cell artificial lighting was of a good standard in both buildings; however, access to natural light was noticeably poorer in the (T)EBI (where the cell windows are partially obscured by frosted glass panels) than in the EBI. The ventilation in the (T)EBI cells also left something to be desired. A number of the (T)EBI prisoners interviewed by the delegation complained about these shortcomings.

The CPT recommends that steps be taken to improve access to natural light in cells in the (T)EBI. The visiting delegation was informed that work to improve the ventilation system in the (T)EBI was due to begin in January 1998; the Committee would like to receive confirmation that this work has now been completed, together with details of the improvements involved.

60. More generally, while the EBI was located in bright and reasonably spacious premises, the (T)EBI (which is also known as the “oud bouw” or “old building”) was a markedly more cramped facility. The CPT would like to be informed of whether the Dutch authorities plan to close the “temporary” extra security institution in the foreseeable future.

c. regime

61. The CPT’s views on the nature of the regime which should be offered to prisoners held in special security units were set out in detail in the report on its 1992 visit to the Netherlands. In that context, the Committee welcomed the recommendation of the Hoekstra Commission that any future EBI should have “as normal a regime as possible”.

In its 1992 report, the CPT stressed that prisoners should enjoy a relatively relaxed regime (able to mix freely with the small number of fellow prisoners in the unit; allowed to move without restriction within what is likely to be a relatively small physical space; granted a good deal of choice about activities, etc.) by way of compensation for their severe custodial situation. Special efforts should be made to develop a good internal atmosphere within such units. The aim should be to build positive relations between staff and prisoners. This is in the interests not only of the humane treatment of the unit’s occupants but also of the maintenance of effective control and security and of staff safety. The existence of a satisfactory programme of activities is just as important – if not more so – in a special detention unit as on normal location. It can do much to counter the deleterious effects upon a prisoner’s personality of living in the bubble-like atmosphere of such a unit. The activities provided should be as diverse as possible (education, sport, work of vocational value etc.) As regards, in particular, work activities, it is clear that security considerations may preclude many types of work activities which are found on normal prison location. Nevertheless, this should not mean that only work of a tedious nature is provided for prisoners. In this respect, reference might be made to the suggestions set out in paragraph 87 of the Explanatory Memorandum to Recommendation No. R(82)17 of the Committee of Ministers of the Council of Europe.

62. The current regime in the (T)EBI and EBI units is governed by a circular which was issued by the Director General of Prison Services on 22 August 1997 (cf. document 646189/97/DJI). According to the circular:

“The extra security institution (EBI) at Vught has a limited communication regime. A differentiation of regimes is referred to within the EBI, where a distinction is made between what is known as the A regime, where greater restrictions apply, and the B regime, with less extreme restrictions.

Groups of between two and a maximum of four inmates take part in activities. Under the B regime, a maximum of four inmates takes part in communal activities, while the maximum number is three under the A regime. Communal activities involve only inmates from a single section.

For security reasons, staff in contact with inmates must always outnumber the inmates, or must even be completely separated from them physically by a transparent (glass) wall. Moreover, with a view to the safety of the staff concerned, in those cases covered by Section 15, sub-sections 2 and 3, chapter III, of the internal regulations of the Vught EBI, inmates’ movements are restricted by handcuffs.”

63. The delegation found that, in practice, out-of-cell time in the (T)EBI and EBI on a given day varied from a minimum of one hour (of outdoor exercise) to a maximum of some four and a half hours (of outdoor exercise/recreation and/or sport). Depending upon the regime in which an inmate had been placed (A/B) and the group to which they had been allocated, these activities would take place with between one and three other inmates.

The outdoor exercise yards in the EBI were of a reasonable size and a “running strip” was available for inmates who wished to engage in more strenuous physical activities. The exercise yards in the (T)EBI were also large enough to enable prisoners to exert themselves physically; however, their cage-like design rendered them rather oppressive facilities.

During recreation periods (of one to two hours), inmates were allowed access to communal areas where they could associate with each other, cook and eat their own food, use a computer and/or play games including table tennis.

As regards facilities for sport, each of the four units in the EBI was equipped with an impressive array of exercise equipment, located in a lofty glass atrium. However, inmates only had access to this equipment for one or two 45 minute sessions per week. Again, the equivalent facilities in the (T)EBI were of a lower standard. The EBI also had a large and well-equipped gymnasium but, at the time of the visit, it appeared that comparatively little use was being made of this facility.

There were no organised education activities. There was also no out-of-cell work; some in-cell work was offered to inmates, but it was of a very unchallenging nature (e.g. stringing plastic curtain hooks onto short rods).

64. All inmate activities within the (T)EBI and EBI were subject to a high level of staff surveillance (which is perfectly understandable in a unit of this type); however, direct contacts between staff and inmates were very limited (staff and inmate usually being separated by armoured glass panels). This is not conducive to building positive relations between staff and prisoners. Contact with non-custodial staff – including medical staff – was also subject to a number of very significant restrictions (...).

65. It should also be noted that prisoners were regularly strip searched (a practice euphemistically referred to as “visitatie”). Such searches – which included anal inspections – were carried out at least once week on all prisoners, regardless of whether the persons concerned had had any contact with the outside world.

66. Concerning contact with the outside world, it should be noted that the house rules for the (T)EBI and EBI units provide that prisoners have the right to receive one visit of one hour per week from family members and other persons approved in advance by prison management. In principle, visits took place under “closed” conditions (i.e. through an armoured glass panel in a visiting booth). Prisoners also had the right to request one “open” visit per month from family members; however, physical contact during such visits was limited to a handshake on arrival and leaving. Prisoners and their families remained separated by a table equipped with a chest-high barrier and prison staff stood directly behind the prisoner throughout the visit. A number of inmates interviewed by the delegation indicated that, given the upsetting effects which these restrictions had had upon their families, they no longer requested “open” visits.

67. To sum up, prisoners held in the (T)EBI and EBI units were subject to a very impoverished regime. They spent too little time out of their cells; when out of their cells they associated with only a small number of fellow inmates and their relations with staff and visitors were very limited; consequently, they did not have adequate human contact. Further, the programme of activities was underdeveloped. This was particularly the case as regards education and work. However, even as regards sport, inmates had insufficient access to the very good facilities available. Moreover, certain aspects of the regime (in particular, systematic strip searching) did not appear to respond to legitimate security needs, and are humiliating for prisoners.

68. The delegation’s lengthy interviews with eight prisoners held in the (T)EBI and EBI indicated that the regime as a whole was having harmful psychological consequences for those subjected to it. Indeed, the interviews revealed a consistent association of psychological symptoms which appeared to have been induced by the regime. The inmates concerned displayed the following symptom profile:

- feelings of helplessness, which took the form of a disturbance of normal identity and severe difficulty of projection into the future; in certain cases, the loss of identity was associated with definite episodes of depersonalisation;

- feelings of powerlessness, closely linked to helplessness, and leading to regression and excessive pre-occupation with bodily functions;

- anger, the predominant emotion being one of rage (clearly linked to feelings of powerlessness) and directed against self (with expressions of low esteem, lack of confidence and associated depressive symptoms) and others;

- communication difficulties, associated with the above-mentioned depersonalisation symptoms.

The delegation’s concerns about the harmful psychological consequences of the regime were reinforced during its subsequent visit to the Dr S. van Mesdag Clinic, where it interviewed a number of patients who had previously been held in the (T)EBI or EBI, in whom persistent psychological sequelae (insomnia; anxiety symptoms; disturbance of identity; emotional liability and psychosomatic symptoms) were clearly present.

The CPT would add that it is aware that the psychologist employed in the (T)EBI and EBI has publicly expressed the conviction that the regime has led to “no significant harmful effects on prisoners”. However, this opinion has never been subject to any form of peer review or professional assessment. It should be added that the Psychiatric Adviser to the Ministry of Justice Forensic Health Bureau expressed a contrary view to the delegation, citing as an example a case of a prisoner who had developed a florid paranoid psychosis while held in the (T)EBI.

69. In the light of all of the information at its disposal, the CPT has been led to conclude that the regime currently being applied in the (T)EBI and EBI could be considered to amount to inhuman treatment. To subject prisoners classified as dangerous to such a regime could well render them more dangerous still.

70. The facilities in the extra security institution are of a high standard. They are quite capable of offering a regime meeting the criteria set out in paragraph 61 without jeopardising legitimate security concerns.

The CPT recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in paragraphs 61 to 67. In particular, the existing group system, if not discarded, should at least be relaxed and inmates should be allowed more out-of-cell time and a broader range of activities. Further, the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint. Similarly, current visiting arrangements should be reviewed; the objective should be to have visits taking place under more open conditions.”

The Netherlands Government responded in the following terms (Interim report of the Dutch Government in response to the report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) on its visit to the Netherlands from 17 to 27 November 1997, CPT/Inf (98) 15, excerpt):

“3. The ‘Extra Security Institution’ ((T)EBI/EBI) at the Nieuw Vosseveld Prison Complex

Recommendations by the CPT

28. (...)

(...)

29. The CPT recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in paragraphs 61 to 67. In particular, the existing group system, if not discarded, should at least be relaxed and inmates should be allowed more out-of-cell time and a broader range of activities. Further, the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint. Similarly, current visiting arrangements should be reviewed; the objective should be to have visits taking place under more open conditions (paragraph 70)

Response: The (T)EBI houses prisoners who are deemed exceptionally likely to attempt to escape, either with help from outside or by violent means. Generally speaking, they fall into three categories: prisoners believed to be members of criminal organisations; prisoners serving sentences for manslaughter or murder; and prisoners who have escaped from prison in the past either by taking staff hostage or by using firearms (and perhaps with help from outside). Arrangements for the detention of such prisoners need to be based first and foremost on systematic, fail-safe security arrangements, though a humane regime should then be provided within that context. The task of the EBI, like any other prison, is to execute custodial sentences without disruption. The restrictions imposed on prisoners should be no more than are necessary to deprive them of their liberty. What distinguishes the EBI from other prisons is the nature of the restrictions required to achieve that purpose. They must be more severe because the prisoners present, by definition, an above-average risk of escape or disruption of the normal prison regime. In practice, this means that the purpose of the (T)EBI and EBI is to create a place and regime from which it is impossible to escape, even by taking staff hostage.

The regime in the EBI is the most severe anywhere in the Netherlands. For that reason, use of the institution is kept to a minimum and the decision to place prisoners there is taken and later reviewed at frequent intervals by a broad-based external committee. Despite the severity of the regime, prisoners in the EBI are offered sufficient out-of-cell time (paragraph 63) and have the opportunity to take part in recreational, sporting, musical, creative, educational and other activities. The range of activities on offer gives prisoners regular opportunities for human contact and the staff of the EBI deliberately strive to encourage such contact and participation in activities wherever possible. The small size of the unit’s population (paragraph 67) is essential to the maintenance of order, security and control and to the prevention of escapes. It is true that there are special restrictions on contact with the outside world (in the form of the glass partition separating prisoners from visitors), but the frequency of visits is the same as in a normal remand centre.

The arrangements for searches in the (T)EBI and EBI are essential to ensure the safety of staff. They have been evaluated in the past, as part of the six-monthly assessment of the EBI, and it has been decided that prisoners should not be searched more often than strictly necessary. This means that prisoners are not always searched on return to their cells, but only if they have been out of sight of the warder who let them out.

Visits are organised in such a way as to permit visual, verbal and non-verbal contact while preventing direct physical contact. The special visiting arrangements are among the most important security measures to prevent escapes. If visits were more “open” and there were any chance of smuggling contraband into the prison, there would be little point in the existence of the EBI.

30. The CPT recommends that the Dutch authorities commission an independent study of the psychological state of current and former inmates of the extra security institution (paragraph 70)

Response: The Ministry of Justice intends to investigate the performance of the EBI in early 1999. It will then consider instituting a further study of the impact of the EBI regime on the psychological state of inmates if the outcome of that investigation gives reason to do so.”

The Ministry of Justice commissioned researchers of the University of Nijmegen to conduct a preliminary study of the EBI’s policy on care for the mental well-being of detainees and of the feasibility of a main study of the psychological impact of a high security regime on the mental well-being of (former) inmates. On 17 April 2000 a report entitled “Care in and around the Maximum Security Prison” (Zorg in en om de Extra Beveiligde Inrichting) was issued by the researchers. It concluded that the concern expressed in the policy documents for the mental well-being of detainees held in maximum security conditions was acted upon in the day-to-day running of the EBI. It also concluded that it would be possible to study the psychological impact of a high security regime. The Minister of Justice has commissioned a follow-up study from the same researchers, which is expected to commence in the summer of 2001.

COMPLAINTS

1.  The applicant complains, under Article 3 of the Convention, of his detention, which he considers to constitute “inhuman” or at the very least “degrading” treatment and punishment. He also complains under Article 8 of an interference with his private and family life which, being in his submission disproportionate, is not justified under the second paragraph of that Article.

2.  The applicant further complains under Article 6 of the Convention of what he perceives as the lack of fairness of the proceedings leading to the decision of the Court of Appeal of ‘s-Hertogenbosch of 16 March 1999.

THE LAW

1.  The applicant complains under Articles 3 and 8 of the Convention of the conditions of his detention in the EBI. Article 3 provides:

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

Article 8 of the Convention 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.”

The Government explain that the need for a maximum security prison arose after a large number of breakouts from prisons in the Netherlands had occurred in the 1980’s and early 1990’s, often involving the use of firearms, knives or similar weapons and the taking of hostages. The public responded with growing alarm, while prison staff began to fear for their safety.

Although the Government do not deny that the EBI regime imposes severe restrictions – and for this reason, as few people as possible are placed there –, they are of the opinion that the conditions in the EBI are neither inhuman nor degrading. Each of the strict security measures applying in the EBI is justified in view of the serious risks that less stringent measures would entail.

In the view of the Government, the CPT’s comment that the regime “could be considered to amount to inhuman treatment” does not mean that it actually is inhuman, since it is impossible to say how the regime affects detainees in general; this rather depends on the individual’s personality, character and other personal factors. In the present case, there is no evidence that the applicant is suffering from serious psychological problems as a result of his detention in the EBI. He has contact with fellow inmates, is allowed to receive visits from relatives and friends, and he has ample opportunity to make telephone calls as well as to take part in a wide variety of activities. His physical and mental well-being is under close surveillance of the penitentiary authorities.

The restrictions on the applicant’s private and family life are inherent in his detention and necessary within the meaning of paragraph 2 of Article 8. The regime in the EBI is especially geared to the two weakest links in any security chain: contact with people outside the institution who are in a position to provide the information and means that would enable detainees to escape, and contact with prison staff, who are vulnerable to attack. This means that the prisoner may not hold unmonitored conversations with his visitors or have physical contact such as would enable him to receive objects that could facilitate his escape, and that systematic controls and surveillance are justified.

The applicant submits that the Government’s interpretation of the CPT report is untenable. In the light of the very critical comments expressed by the CPT on various aspects of the EBI regime there can be no doubt that, in the opinion of the CPT, this regime must be regarded as inhuman.

To illustrate that the CPT’s findings also apply specifically to him, the applicant points to a number of aspects concerning his individual situation. He argues in the first place that the length of his detention in the EBI is longer than the two years which, as submitted by the Government in various domestic proceedings, is the average length of placement. Second, the psychological effects of the EBI regime on the applicant are enormous: he is extremely weighed down by the regime, and this manifests itself in a variety of psychological and physical complaints. Contacts with the institution doctor, psychologist and psychiatrist have not resulted in any notable improvement. Such improvement is in any event unlikely since the major source of his tension and frustration is the regime which creates a situation of sensory deprivation and social isolation.

Two aspects of the regime are particularly onerous for the applicant, without being strictly necessary from a security point of view. First, the applicant has now been subjected to strip searches, on a weekly basis and often more frequently, for a number of years and, when carried out at the same time as the weekly cell-inspection, regardless of whether he has had any contacts with the outside world. Second, as a result of the visiting regulations the applicant is denied normal human contact, including physical contact, with his immediate family. The applicant submits that the Government have failed to strike a fair balance between security considerations and his justified wish for physical contact, given that there have never been any concrete, tangible indications that he has any plans to escape. Moreover, in view of the strict security arrangements surrounding visits it is impossible for any dangerous objects to be smuggled into the institution unobserved. Even if such were the case, it would be discovered during the strip search following the visit.

The Court considers, in the light of the parties’ submissions, that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring these complaints inadmissible have been established.

2. The applicant further submits that the proceedings he instituted against his placement at the EBI did not comply with the requirements of Article 6 § 1 of the Convention because he did not have access to the information which had formed the basis for his detention in the EBI. Article 6 § 1, in so far as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Applicability of Article 6 § 1

The Government argue that Article 6 does not apply to proceedings relating to placements in a custodial institution. The purpose of the proceedings at issue was not to regulate relations between the applicant and his family but to establish the place where a sentence was to be enforced. The establishment of such place does not amount to the determination of a civil right since a right for a detainee to choose where he wishes to serve his sentence or to refuse the place to which he is assigned is recognised neither in Dutch law nor in the Convention. Furthermore, the proceedings at issue cannot be described as civil law proceedings as they concern issues of a public law nature only.

The applicant concedes that, generally, decisions and proceedings relating to a place and conditions of detention do not involve civil rights. However, civil rights are at stake when, as in the present case, conditions of detention are so severe that the consequences of the regime on a detainee’s mental health and the restrictions on the detainee’s private and family life go beyond what can be considered as inherent to the detention itself.

The Court recalls that for Article 6 § 1 of the Convention under its “civil” head to be applicable, there must be a “dispute” (contestation in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, and the outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, amongst other authorities, the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, p. 17, § 44).

Proceedings relating to a decision to subject a detainee to a high-security regime in view of the security risk he presents have previously been found not to concern a determination of civil rights (Bullivant v. the United Kingdom [dec.], no. 45738/99, 28.3.2000, unreported). The Court perceives no cause to reach a different conclusion in the present case.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected, in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints that[Note1] the detention regime to which he is subjected constitutes inhuman treatment and infringes his right to respect for his private and family life;

Declares inadmissible the remainder of the application.

Michael O’BoyleElisabeth  Palm
RegistrarPresident

[Note1]Summarise the complaints without necessarily citing the invoked Convention Articles.

Full & Egal Universal Law Academy