Communicated on 26 May 2015
THIRD SECTION
Application no. 10662/15
Johan VRINDS
against the Netherlands
lodged on 24 February 2015
STATEMENT OF FACTS
1. The applicant, Mr Johan Vrinds, is a Netherlands national, who was born in 1979 and is currently detained in Nieuwegein. He is represented before the Court by Ms B.A.M. Hendrix, a lawyer practising in Maastricht.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was arrested on suspicion of tax fraud. On 5 March 2013 he was taken into police custody (inverzekeringstelling). He was subsequently taken into detention on remand (voorlopige hechtenis).
4. On 11 February 2014 the applicant lodged a request with the governor of the remand institution (hereafter “the governor”) for permission to receive unsupervised visits (bezoek zonder toezicht) from his wife. He submitted that he had by that time been detained for forty-nine weeks and his marriage was suffering as a result.
5. By a decision of 20 March 2014 (handed to the applicant on 25 March 2014) the governor refused the applicant’s request for unsupervised visits. The decision specified that the arrangement for unsupervised visits applied only to convict prisoners who were held in ordinary security prisons for an uninterrupted period of at least three months; the applicant, as a remand prisoner, therefore did not qualify.
6. The applicant lodged a complaint (beklag) against this decision with the complaints committee (beklagcommissie) of the supervisory board (commissie van toezicht) of the remand institution. He submitted that by this time he had spent fifty-five weeks in detention and that his marriage was deteriorating as a result; he and his wife wanted another child and he himself was suffering from stress as a result of the lack of sexual intercourse.
7. The applicant’s representative supplemented the applicant’s complaint by way of an additional document referring to the Court’s judgment in Varnas v. Lithuania, no. 42615/06, 9 July 2013, and to the European Prison Rules 2006.
8. The governor submitted a response referring to the applicable regulatory framework, concluding that in principle (in beginsel) a remand prisoner did not qualify for unsupervised visits.
9. After having held a hearing, the complaints committee gave a decision declaring the applicant’s complaint well-founded. It took the view that the case could be distinguished from Varnas v. Lithuania, already because the applicant was entitled to one hour of visits in a visiting room. Nonetheless, the governor’s use of the expression “in principle” indicated that he considered himself to have a certain margin for manoeuvre (enige beleidsvrijheid) in the matter. Since, however, the governor had not weighed the applicant’s interests against those of the institution, his decision could not stand. The governor was instructed to give a new decision setting out the institution’s approach to prisoners forced to spend a long time in detention on remand.
10. The governor appealed to the Council for the Administration of Criminal Justice and Juvenile Protection (Raad voor Strafrechtstoepassing en Jeugdbescherming). He argued that the existing regulatory framework admitted of unsupervised visits for convict prisoners only. In his submission, the Varnas judgment applied only to the facts of that case, and there was no “European directive” (Europese richtlijn) to be transformed into domestic law.
11. The Appeals Board (beroepscommissie) of the Council for the Administration of Criminal Justice and Juvenile Protection gave its decision on 2 September 2014. As relevant to the case before the Court, it was in the following terms:
“Decision in the case in hand
As far as the Appeals Board can determine, the purpose of the detention on remand does not (or no longer) stand in the way of granting unsupervised visits in the present case. It is not apparent that there remained any interest linked to the investigation that would oppose unsupervised visits. Nor is there any need for special security.
Although, accordingly, these circumstances do not provide ground for denying unsupervised visits, such grounds can in the present case be found as will be explained. In the Netherlands, the differences between the possibilities for ordinary visits in remand institutions and in prison (unlike, apparently, in Lithuania) are quite inconsiderable as regards the frequency and length of visits. Moreover, in visits both in the remand institution and in prison some, albeit limited, physical contact is possible between the visitor and the prisoner, unlike in the European Court of Human Right’s Varnas case. Finally, unlike in the Varnas case, the (uninterrupted) length of the detention (in the remand institution) is not more than three years, but just over a year at the time of the complaint. There has therefore been no unjustified difference in treatment (discrimination) between [the applicant] as a remand prisoner and convicts, even though [the applicant] was denied unsupervised visits. [The applicant] has not been discriminated against, because no significant differences can be found as regards frequency, length and physical contact between him as a remand prisoner and convicts; nor has he been discriminated against because a convict prisoner in practice does not generally qualify for unsupervised visits immediately after having been sent from free society to prison.
Although in the present case the request has been rejected by the governor with reference only to the circular of 2000, so that arguments particular to the case have not been decisive, the Appeals Board will not attach any consequences to his flawed reasoning. After all, terms of reference (een toetsingskader) for the purpose of the governor’s decision was, and remains, lacking and the governor’s decision is neither contrary to a legal provision nor unreasonable or unfair in the light of all relevant interests.
Obiter dictum
The case-by-case approach means that the governor, when faced with a request for unsupervised visits in a remand institution by a remand prisoner, will have to take a specific decision particular to the prisoner making the request and will not be able to consider the statement that the circular of 2000 does not provide for unsupervised visits sufficient. In general, the purpose of the detention on remand (in particular the question whether there is an investigative interest involved), the need for security and the length of the detention on remand will have their part to play in the governor’s decision. If the possibility for physical contact in regular visits should need to be further restricted in future, this will weigh in favour of a remand prisoner in deciding whether to allow him unsupervised visits.
It will have to be seen in practice whether the case-by-case approach is manageable or whether further regulation will be necessary. In the latter case, it will be for the regulator to act.
Conclusion
In view of the above, the governor’s appeal will be declared well-founded. The decision of the complaints committee will be annulled and the complaint will be declared unfounded.”
B. Relevant domestic law and practice
12. On 8 September 2000 the Acting Head of the Prisons Service (plv. directeur gevangeniswezen), signing on behalf of the Minister of Justice (Minister van Justitie), issued a circular (reference 5041936/DJI) addressed to, among others, prison governors, secretaries of supervisory boards and the Central Council for the Administration of Criminal Justice (Centrale Raad voor de Strafrechtstoepassing, predecessor to the Council for the Administration of Criminal Justice and Juvenile Protection). As relevant to the case before the Court, the circular sets out the following rules:
Section 1
“Unsupervised visits shall be possible in institutions or departments designated as ordinary security prisons.”
Section 2
“A prisoner shall qualify for unsupervised visits if the prisoner is held in one or more ordinary security prisons for an uninterrupted period of three months.”
13. In a decision of 29 October 2013 (no. 13/2012/GA), the Appeals Board of the Council for the Administration of Criminal Justice and Juvenile Protection gave a decision including the following reasoning:
“Turning to the merits, the Appeals Board finds as follows. The possibility of unsupervised visits is provided for in the circular of 8 September 2000 (reference 5041936/DJI). On the basis of that circular prisoners held in a prison with an ordinary security regime qualify for unsupervised visits. The complainant is held in a remand institution, in view of which he does not, in principle, qualify for unsupervised visits. Even so, the governor has, in the opinion of the Appeals Board, taken sufficient and adequate pains to accommodate the complainant – who is in detention for the purpose of extradition – as much as possible. That being so, the Appeals Board is of the view that the governor’s decision to refuse the complainant’s request is not unreasonable or unfair. ...”
C. Relevant international materials
1. Council of Europe
14. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules (Recommendation Rec(2006)2), replacing an earlier document dating back to 1987.
15. These Rules set out, inter alia, the following principle concerning remand prisoners:
“99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to other forms of communication; ...”
2. United Nations
16. On 31 July 1957 the Economic and Social Council of the United Nations approved Standard Minimum Rules for the Treatment of Prisoners (resolution 663 C I (XXIV)).
17. These Rules set out, inter alia, the following principle concerning both convict and remand prisoners:
“PART I: RULES OF GENERAL APPLICATION
...
Contact with the outside world
Prisoners are to be allowed regular contact with family and friends, by both correspondence and personal visits.”
and as regards remand prisoners:
“PART 2: RULES APPLICABLE TO SPECIAL CATEGORIES
...
Prisoners under arrest or awaiting trial
...
An untried prisoner shall be allowed to inform his family of his detention immediately after arrest and communicate with and receive visits from family and friends. ...”
COMPLAINT
The applicant complains under Article 14 taken together with Article 8 of the Convention that the difference in treatment as regards unsupervised visits between remand prisoners like himself and convict prisoners is not justifiable in terms of normal restrictions on family life inherent in deprivation of liberty.
QUESTIONS TO THE PARTIES
1. Can the Government provide information, including numerical data, on domestic practice as regards permitting remand prisoners to receive unsupervised visits as compared to convict prisoners?
2. As a result of the denial to him, as a remand prisoner not a convict, of unsupervised visits, has the applicant suffered discrimination
(a) in the enjoyment of his right to respect for his family life, contrary to Article 14 of the Convention read in conjunction with Article 8;
(b) in the enjoyment of a right set forth by law, contrary to Article 1 of Protocol No. 12?
Full & Egal Universal Law Academy