Resolution CM/ResDH(2009)133 [1]

Execution of the judgments of the European Court of Human Rights

Lorsé and others, Van der Ven, Baybaşin, Salah and Sylla against the Netherlands

(Lorsé and others, application No. 52750/99, judgment of 4 February 2003,

final on 4 May 2003;

Van der Ven, application No. 50901/99, judgment of 4 February 2003,

final on 4 May 2003;

BaybaÅŸin, application No. 13600/02, judgments of 6 July 2006,

final on 6 October 2006

and of 7 June 2007, final on 7 September 2007;

Salah, application No. 8196/02, judgments of 6 July 2006, final on 6 October 2006

and of 8 March 2007, final on 8 March 2007;

Sylla, application No. 14683/03, judgments of 6 July 2006, final on 6 October 2006

and of 26 April 2007, final on 26 July 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violation of the Convention found by the Court in these cases concerns the detention regime to which the applicants were subjected in a maximum security prison (EBI), which amounted to inhuman or degrading treatment (violation of article 3) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2009)133

Information on the measures taken to comply with the judgments in the cases of

Lorsé and others, Van der Ven, Baybaşin, Salah and Sylla against the Netherlands

Introductory case summary

These cases concern the detention regime to which the applicants, sentenced to various terms of imprisonment, were subjected in a maximum security prison (EBI). The European Court indicated that the situation in this prison gave cause for concern, as the Committee for the Prevention of Torture and of Inhuman or Degrading Punishment or Treatment (CPT) had noted. The European Court considered that the applicants had been subjected to many, very stringent security measures, the combination of which with routine strip-searching practiced during long periods amounted to inhuman or degrading treatment (violation of Article 3).

Mr Lorsé was detained in the EBI from 27/09/1994 until 15/01/2001. Mr Van der Ven was detained in the EBI from 29/10/1997 until May 2001; Mr Baybaşin was placed in the EBI from 26/06/1998 until 24/12/2003; Mr Salah was detained in the EBI from 25/06/1998 until 12/05/2003, and Mr Sylla was placed in the EBI from 21/12/2000 until 30/06/2003.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Lorsé and others (52750/99)

-

453,78 EUR

2 195 EUR

2 648,78 EUR

Paid on 09/06/2003

Van der Ven (50901/99)

-

3 000 EUR

-

3 000 EUR

Paid on 08/08/2003

BaybaÅŸin (13600/02)

-

-

-

-

Salah (8196/02)

Global

2 500 EUR

Paid on 24/01/2007

Sylla (14683/03)

-

1 000 EUR

-

1 000 EUR

Paid on 05/06/2007

b) Individual measures

In the cases of Lorsé and others, Van der Ven and Sylla, the consequences of the violation found have been redressed by the European Court through the award of just satisfaction in respect of the non-pecuniary damages suffered. In the Baybaşin case, the European Court struck the part of the application concerning compensation out of its list of cases since the applicant had taken domestic civil proceedings in tort against the respondent state. In the Salah case, the parties reached a friendly settlement concerning the compensation for, inter alia , the non-pecuniary damage sustained by the applicant.

Moreover, as the applicants are no longer subject to the regime in question, no other individual measures seem necessary.

II. General measures

According to the Netherlands authorities, following the judgments, the prison rules were modified and the practice of weekly strip-searches was abolished on 01/03/2003 (see §§ 21 and 80 of the Baybaşin judgment). Whether a detainee is strip-searched now depends on the length of his stay in the EBI, the effects of such searches on the detainee and, in particular, on the goal of these searches. Although such searches still occur regularly, their necessity is judged on a case-by-case basis. The new practice as regards strip-searches in the EBI, as applied since 01/03/2003, was found by the European Court to be compatible with Article 3. Furthermore, it was noted that detainees had the opportunity to bring a civil action against the State in order to obtain compensation for non-pecuniary damages sustained as a result of the now-abolished practice of routine strip-searches (see § 80 of the Baybaşin judgment).

The Netherlands authorities provided a summary of the study “Detention in the EBI; Effects and perception of detention in the Extra Security Institution” ( Detentie in de EBI; Effecten en beleving van detentie in de Extra Beveiligde Inrichting ). In this study, the researchers conclude that “the answer to the question of whether the EBI regime fosters additional psychological strain is partially affirmative and partially negative.” Negative consequences of the EBI regime are probable, but no objective substantiation of the reported level of psychological strain was found. The researchers recommend some adaptations to the regime and suggest regime differentiation.

The Netherlands authorities also stated that the contact between the prison staff and the detainees would be the subject of continuing attention and that the living environment of detainees was being modified. It emerges from the report of the CPT published on 15/11/2002 that renovation works had started in the EBI in 2002, in particular to adapt the exercise yards so as to allow more interaction between staff and inmates. Other measures to increase communication between staff and inmates were being taken through a training programme known as “Safety at the door”. The CPT also mentions a slight expansion of the types of activities offered to inmates.

Moreover, the Lorsé and others judgment was published in several newspapers and in a legal periodical ( NJB 2003, nr. 14 ) and was commented on in several other periodicals (for example NJCM-Bulletin 2003, nr. 4, pp. 471-491 ).

III. Conclusions of the respondent state

The government considers that the measures adopted will prevent similar violations and that the Netherlands have thus complied with their obligations under Article 46 paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies