ITEMID: 001-72028
LANGUAGEISOCODE: ENG
RESPONDENT: SWE
BRANCH: ADMISSIBILITY
DATE: 2005
DOCNAME: NILSSON v. SWEDEN
IMPORTANCE: 1
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Christoffer Nilsson, is a Swedish national who was born in 1980 and lives in Torslanda, Sweden. He was represented before the Court by Mr U. Carlzon, a lawyer practising in Gothenburg. The Swedish Government (“the Government”) were represented by their Agent, Mrs E. Jagander, of the Ministry of Foreign Affairs.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 21 November 1998 the applicant was apprehended by the police on suspicion, inter alia, of aggravated drunken driving and driving without a driving licence.
The applicant obtained a driving licence on 15 December 1998.
Subsequently, on 5 May 1999, the County Administrative Board (länsstyrelsen) of Västra Götaland informed the applicant that the Board was considering whether to withdraw his driving licence until further notice in accordance with the Driving Licence Act (körkortslagen 1998:488) on the ground of his suspected aggravated drunken driving (grovt rattfylleri) and unlawful driving (olovlig körning) on 21 November 1998. In that connection the Board pointed out that, in the absence of a legally enforceable judgment or a summary punishment order or similar, the Board could not take a definite decision on the matter.
On 24 June 1999 the Mora District Court (tingsrätt) convicted the applicant, notably under sections 3(1) and 4A of the 1951 Traffic Offences Act (trafikbrottslagen 1951:649) of aggravated drunken driving, with an alcohol level of at least 0.69 milligrams per litre in his breath, and of driving without holding a driving licence.
The District Court based the conviction on the applicant’s own account according to which, in so far as he could recall, he had, from 2 p.m. onwards on 21 November 1998, consumed eight halflitre bottles of strong beer, one gin and tonic and one strong liquor; on a report analysing the results of the breathalyser test carried out on the night of 21 November 1998; on the records of his statement to the police on the same night, and on witness evidence. The District Court did not find credible the applicant’s statement made during the trial hearing that, because of his state of drunkenness, he could not recall having driven the car in question.
As to sentencing, the District Court observed that aggravated drunken driving was normally punishable by imprisonment. However, in view of the applicant’s age, his personal circumstances and his agreeing to carry out community service, the District Court found that a departure from normal practice was warranted, and imposed a suspended sentence together with 50 hours’ community service (“Villkorlig dom med samhälltjänst femtio (50) timmar”). The District Court added that should it instead have imposed a prison sentence, it would have sentenced the applicant to one month’s imprisonment.
No appeal was made against the above judgment, which became legally enforceable.
On 29 July 1999 the County Administrative Board issued a further notification replacing the previous one of 5 May 1999, informing the applicant that, in the light of the District Court judgment of 24 June 1999, which had acquired legal force, it intended to take a definite decision on the withdrawal of his driving licence; the Board gave the applicant until 30 July 1999 to submit his comments.
On 5 August 1999 the Board withdrew the applicant’s driving licence. It took note of his submissions that he had used his driving licence blamelessly since it had been issued to him on 15 December 1998, and that he needed the driving licence in order to transport his sailing boat over long distances in order to take part in top-level regattas. However, referring to his conviction for aggravated drunken and unlawful driving on 21 November 1998 by a judgment (of 24 June 1999) which had become legally enforceable, the Board stressed that the applicant had violated a rule which was essential for road safety. This transgression could not be viewed as minor. Having regard to the offence committed by the applicant, the Board found that withdrawal of the applicant’s licence for less than a year would not be possible and ordered that his licence be withdrawn for 18 months.
The applicant appealed against the Board’s decision before the County Administrative Court. He reiterated that, since 15 December 1998, he had used his driving licence without committing any further offence and that, in the circumstances, the withdrawal constituted double jeopardy, in breach of Chapter 30, Article 9 of the Code of Judicial Procedure and Article 4 § 1 of Protocol No. 7 to the Convention.
On 17 August 1999 the County Administrative Court refused a request by the applicant to stay execution of the withdrawal order. By a judgment of 12 October 1999 it dismissed his appeal, relying on the applicant’s conviction of 24 June 1999 and the relevant provisions in Chapter 5 of the Driving Licence Act. The County Administrative Court considered a number of decisions from the Convention institutions’ caselaw and concluded that no clear precedent existed that could invalidate the Swedish system on the withdrawal of driving licences. Bearing in mind the damaging consequences a finding of incompatibility would have for road safety, the County Administrative Court found no reasons for setting aside the Board’s decision to withdraw the applicant’s driving licence.
On 11 November 1999 the Administrative Court of Appeal, on an appeal by the applicant, upheld the County Administrative Court’s judgment of 12 October 1999.
The applicant lodged an appeal against the above judgment, which the Supreme Administrative Court dismissed on 18 December 2000. Its judgment contained the following reasons:
“[The applicant’s] driving licence and driving licence permit have been withdrawn in accordance with Chapter 5, sections 2, 3 (1) and 6 of the Driving Licence Act (1998 : 488) on the grounds that he has been convicted of an aggravated offence of drunken driving and of unlawful driving by a legally binding judgment of the district court. The period of suspension has been set at 18 months.
The main issue in this case is whether the withdrawal of [the applicant’s] driving licence is in conflict with the principle established under Article 4 § 1 of Protocol No. 7 to the European Convention on Human Rights (“Article 4 § 1”), according to which no one shall be liable to be tried or punished twice for the same offence (ne bis in idem). [The applicant’s] opinion in the matter is that the fact that his driving licence was withdrawn after the decision to convict him of a traffic offence means that he has been punished twice for the same matter.
The European Convention - with the additions made, inter alia, in Protocol No. 7 – has been incorporated into Swedish law by means of SFS 1994:1219.
...
The intended scope of Article 4 § 1 is unclear, as is the principle expressed therein. The wording of the article therefore provides no clear guidance as to whether the Swedish system of driving licencerelated measures [körkortsingripande] might come into conflict with the Article. Neither are there many legal precedents in this area.
As to the various requirements set out in the Article, it stipulates, first of all, that no one may be ‘punished’ more than once for an offence. The question here is whether the said withdrawal of the appellant’s driving licence represents a punishment within the meaning of the Convention.
Under Swedish law, driving licencerelated measures have traditionally been implemented for trafficsafety reasons, that is, they have been regarded as a precautionary measure on the part of society aimed at drivers who jeopardise traffic safety. Hence, measures of this kind have not been regarded as a form of punishment. It is, however, difficult to argue that a decision to withdraw a driving licence because the licence-holder has committed an offence is purely a traffic-safety measure. As a rule, the period of suspension is calculated on a standardised basis in proportion to the seriousness of the offence – in the same way as the penalty. Hence, it is not based on an individual assessment of the likelihood of a repeat of conduct that might jeopardise traffic safety. This means that the decision to withdraw a driving licence – like the punishment for the traffic offence – is aimed at least in part at persuading the holder to respect existing traffic regulations. Over time, the distinction between precautionary measures and punishment has become increasingly unclear in cases of this kind (see for example SOU 1991:39 p. 86, Government Bill 1993/94:133, pp. 44 et seq., Government Bill 1997/98:124, pp. 42 et seq. and SOU 2000:26, pp. 141 et seq.).
...
Under Chapter 5, section 3 of the Driving Licence Act, a driving licence is withdrawn if any of eight criteria are met. Three of these criteria apply not to cases in which the licenceholder has committed an offence but to situations in which the holder is to be barred from holding a driving licence on grounds of unreliability as regards sobriety, illness, injury or similar circumstances. It should be made clear that the withdrawal of a driving licence in these cases is not to be considered as a punishment, and that cases of this kind are of no further interest in the present context. However, criteria 1-4 and 6 are of interest, since they refer to cases where it is normally presupposed that the licence-holder has committed an offence. According to some of these criteria (1, 2 and 4) – except in the case of petty violations – a driving licence may be withdrawn simply on the grounds that the holder has committed one of the offences set out therein. This applies in the case of gross negligence when driving and drunken driving (criterion 1), in cases where the driver leaves the scene of an accident (criterion 2) and in the event of a violation of a rule that is essential from the point of view of traffic safety (criterion 4). In other cases (criteria 3 and 6), certain other conditions must be met in addition to an offence having been committed. According to criterion 3, the driving licence is withdrawn if the licenceholder, through repeated offences, has shown a considerable lack of willingness or ability to comply with the regulations that apply in the interests of traffic or traffic safety for drivers of motor vehicles. According to criterion 6, the driving licence is withdrawn if it can be assumed – in the light of another offence which the holder has committed – that he or she will fail to respect traffic regulations or show consideration, judgement or responsibility on the road, or if he or she, on account of other personal circumstances, cannot be considered suitable to be a driver of a vehicle requiring a driving licence.
Under criteria 1, 2 and 4, therefore, a driving licence is withdrawn, in principle, as the direct result of an offence. As regards criteria 3 (repeated offences) and 6 (other offences), however, it is not the criminal act alone, but the act taken in combination with other factors – willingness and ability to comply with existing regulations, to show respect for traffic regulations, judgement and responsibility on the road, or suitability with regard to personal circumstances – which constitutes the grounds for revoking the licence. In the light of the Malige v. France case (judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), for example, the withdrawal of a driving licence under criteria 1, 2 or 4 can be said to be closer in character to a punishment than withdrawal under criteria 3 or 6. At the same time, the basic rationale for withdrawal is that a driving licence should be withdrawn if the holder is deemed unsuitable to hold a licence. Hence, the fact that the legislator has singled out certain offences as constituting grounds for withdrawal in their own right, while further criteria must be fulfilled in the case of other offences, does not mean that the act of revoking a driving licence should be characterised in different ways in different cases. A withdrawal under criteria 3 or 6 does not refer to a single offence but to several different offences or other circumstances. However, the same can also apply to withdrawals under criteria 1, 2 and 4. Of greater importance is the fact that the withdrawal is not an automatic consequence of the offence in question in any of these cases. Under Chapter 5, section 9 – and with the exception of certain drunkdriving offences – the licenceholder should be issued instead with a warning, if there are specific reasons to assume that a warning can be regarded as sufficient. Under Chapter 5, section 10, subsection 2, if exceptional circumstances exist which warrant departing from the Act, withdrawal can be avoided or the suspension period reduced if this can be done without jeopardising road safety. If the driving licence is not withdrawn, a warning may be issued instead.
The regulation therefore means that, when examining a case of driving licencerelated measures under criteria 1, 2 and 4, other circumstances besides the actual offence need to be taken into account. This applies with regard both to the question of whether any action should be taken and – where applicable – to the question of the scope of such action, e .g. the suspension period. This suggests that, in assessing whether the withdrawal of a driving licence as a consequence of an offence is to be regarded as a punishment or a safety measure, no distinction should be made between the different cases dealt with here (criteria 1-4 and 6) on the basis of the grounds for withdrawal.
Comparison of the Swedish system of driving licence-related measures described above and the system that was assessed in the Malige case reveals a clear difference, in that action under the Swedish system is, in principle, not an automatic consequence of a conviction by the criminal court. However, the Swedish system is also based largely on standard calculations, and driving licencerelated measures are consequently to a very great extent directly related to the degree of seriousness of the violation. The fact that a driving licencerelated measure, according to Swedish legislation, is not an automatic consequence of a conviction by the criminal court cannot therefore be said to distinguish the Swedish system from the one assessed in the Malige case in any decisive way. In assessing whether the driving licencerelated measure is to be regarded as a punishment, account should also be taken of the fact that, under the Swedish system – as with the French system – the action taken may, to a certain degree, be considered to have a punitive and deterrent purpose.
Before determining whether the withdrawal of a driving licence is to be regarded as a punishment, the Escoubet v. Belgium judgment ([GC], no. 26780/95, ECHR 1999VII) should also be examined. In the Escoubet case, the Court found that the temporary withdrawal of the applicant’s driving licence for six days on account of a suspected offence of drunken driving did not concern a criminal charge. Temporary withdrawals can also be effected under Swedish driving-licence legislation. In fact, the legislation stipulates that the withdrawal of a driving licence in connection with an offence is to take place as soon as possible after the offence, and on the basis of a provisional decision. According to Chapter 5, section 7 of the Driving Licence Act, a driving licence should be confiscated by the police or a prosecutor, inter alia, if there is good reason to suppose that the driving licence will be withdrawn under Chapter 5, section 3 (1) or (4). According to Chapter 5, section 5 of the Driving Licence Act, a driving licence is to be withdrawn until further notice pending a final decision on withdrawal, if there is good reason to believe that the driving licence will ultimately be withdrawn on any of the grounds set forth in Chapter 5, section 3 (1) to (7).
In the present case, the Supreme Administrative Court is not called upon to determine to what extent a provisional decision regarding a driving licencerelated measure represents a punishment or a safety measure. However, the fact that cases could arise under the Swedish system which should be dealt with in the same way as the Escoubet case in the above-mentioned respect should not affect the assessment of how to characterise the final withdrawal of a driving licence.
In view of this, the Supreme Administrative Court finds that the withdrawal of a driving licence in the cases referred to under criteria 1-4 and 6 should be regarded as a punishment within the meaning of Article 4 § 1.
As is clear from the above, the fact that someone is punished again for an offence does not constitute sufficient grounds for the application of Article 4 § 1. Other conditions must also be met; for instance, the penalty must have been imposed (or the case have been conducted) in the context of ‘criminal proceedings’ and the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’.
First, as regards the term ‘criminal proceedings’ (French ‘pénalement’), it would seem most logical at first sight to consider as criminal proceedings any proceedings which could lead to a sanction constituting a punishment.
However, it is questionable whether such a far-reaching interpretation of Article 4 § 1 is intended. To begin with, it appears strange – if the above-mentioned interpretation were intended – to have included the term ‘criminal proceedings’ at all in the provision ; its inclusion suggests that a limitation of its scope was intended (see Johan Munck, Tidskrift för Sveriges Domareforbund (Journal of the Swedish Society of Judges), no.1/2000, p . 18). It should be recalled at this point that the court, in proceedings concerning driving licencerelated measures implemented for a traffic offence, makes no fresh examination of the offence. In other words, these are not criminal proceedings in the sense that the actual offence is examined. This suggests that the term ‘criminal proceedings’ should be reserved for proceedings of the latter kind, that is, proceedings in which the offence is examined.
Of interest in this context is the Explanatory Report to Protocol No. 7, paragraph 32 of which states:
‘Article 4, since it only applies to trial and conviction of a person in criminal proceedings, does not prevent him from being made subject, for the same act, to action of a different character (for example, disciplinary action in the case of an official) as well as to criminal proceedings.’
It is therefore clear that disciplinary action, for instance against government officials, can fall outside the scope of Article 4 § 1. However, the report does not provide any clear guidance on the question of how to distinguish between ‘criminal proceedings’ and proceedings occasioned by an offence and which involve a sanction, but which nevertheless fall outside the scope of Article 4 § 1. It should be stressed that the fact that disciplinary action is mentioned does not necessarily conflict with the view that legal proceedings are to be seen as criminal proceedings as soon as the sanction constitutes a punishment since, according to the caselaw of the European Court of Human Rights, depending on the circumstances, disciplinary action can fall outside what is to be considered as a punishment for the purposes of Article 6. At the same time, it should be noted that the report does not present any obstacles to an interpretation to the effect that the Swedish procedure concerning driving licence related measures falls outside the scope of Article 4 § 1 as an ‘action of a different character’.
As to the condition that the person in question must already have been ‘finally acquitted or convicted in accordance with the law and penal procedure of that State’ the following should be emphasised. The Explanatory Report (paragraph 29 compared with paragraph 22) makes it clear that this means first and foremost that there must be a legally binding judgment on the matter. Looking at the wording of the Article, however, it would seem logical to conclude that – in cases where the legislation in a country prescribes that an offence gives rise to sanctions under two separate procedures – the person in question is finally convicted in accordance with national legislation only when both procedures have been completed.
Hence, in this respect too, the provisions leave room for different interpretations (see also the Supreme Court judgment of 29 November 2000 in case no. B 868-99).
As regards the European Court’s position on these issues, the abovementioned Malige case, inter alia, is of some interest. First, it should be pointed out that the action brought by Malige was based on the fact that the system of automatic deduction of points – which did not allow him as a licence-holder to appeal to a court of law – had deprived him of his right of access to a court of law under Article 6 § 1. As mentioned, the Court found that the case did concern a criminal charge – and also a punishment – and that Article 6 § 1 was applicable. It is of particular interest in this context that the Court found that the conditions laid down by Article 6 § 1 had been met by the judicial review which preceded the conviction by the court and that the Convention could not be considered to require a further examination by a court regarding the deduction of points. There was no statement to the effect that the French system – with its partly separate systems for ordinary penalties and driving licencerelated measures – might be incompatible with Article 4 § 1. Also of interest is the European Court’s decision on admissibility of 30 May 2000 in R.T. v. Switzerland (application no. 31982/96). The applicant (R .T.) had, in connection with a drunkdriving offence, first had his driving licence withdrawn by an administrative authority and then been sentenced to prison and a fine by another authority. After R.T. lodged an appeal against the decision to withdraw his licence, the decision was confirmed by an administrative court. The Court found that there had been no repetition of criminal proceedings in breach of Article 4 § 1, and stressed, inter alia, that the various sanctions – imprisonment, a fine and withdrawal of the applicant’s driving licence – were envisaged by the national legislation.
The withdrawal of a driving licence for a criminal offence should be regarded as a punishment within the meaning of Article 4 § 1 [of the Protocol]. Neither the wording of the provision nor the Explanatory Report gives any clear answer to the question whether Swedish proceedings relating to the withdrawal of a driving licence are covered by the expression ‘criminal proceedings’. Nor does it give a clear indication as to whether the holder of the driving licence should be regarded as having already been ‘finally ... convicted’ of the traffic offence by virtue of a legally enforceable judgment by an ordinary court. In the Supreme Court’s view, the wording of both expressions suggests that both questions ought to be answered in the negative.
In interpreting this Article, one might also have regard to its purpose. It could be argued that an important safeguard for a person who is finally acquitted or convicted is that he or she should feel secure, in the sense that he or she should not be charged or punished again for the same offence. The Swedish system implies that a person who is charged with a traffic offence is aware – or ought to be aware – from the outset that an enforceable judgment convicting him or her would normally be followed by measures with regard to his or her driving licence. The fact that the measure is taken in separate proceedings should not mean that considerations of security and legal safeguards are set aside. In other words, the Swedish system does not appear to conflict with the purpose of Article 4 § 1.
A strong argument for considering that the Swedish system of withdrawal of a person’s driving licence for a traffic offence does not conflict with Article 4 § 1 may be found in the Court’s judgment in Malige v. France and the above-mentioned admissibility decision in R.T. v. Switzerland. The European Court’s reasoning and conclusion in these cases – notwithstanding the fact that Malige did not directly concern the application of Article 4 § 1 – can only be interpreted to mean that the committing of a criminal offence can lead to different sanctions imposed by separate authorities and courts, if so provided by statute.
Against this background, the Supreme Administrative Court concludes that Article 4 § 1 does not constitute an obstacle to applying the provisions of the Driving Licence Act.
Like the lower courts, the Supreme Administrative Court finds that Chapter 30, Article 9 (1) of the Code of Judicial Procedure – on which [the applicant] also relies – is not applicable to drivinglicence cases.”


ITEMID: 001-99963
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No. 1)
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
TEXT: The applicant, Mr Jovan Vraniškoski, is a Macedonian national who was born in 1966 and lives in Bitola. He was represented before the Court by Mr V. Gorgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 15 November 2000 the applicant was appointed as a bishop (Епархиски Архиереј на Повардарската Епархија) in the Macedonian Orthodox Church (“the Church”). By a decision of 11 April 2001, he designated the monastery Свети Великомаченик Dimitrij in Veles as his residence. However, he has resided and worked in the Veles and Povardarska Eparchy building (Велешка и Повардарска Епархија - “the Eparchy building”).
At a press conference on 21 June 2002 the applicant stated that he would join the Serbian Orthodox Church. On 26 June 2002 considerable number of people (according to the Government 1,500 and according to the applicant, less than 100 people) gathered at the main square in Veles protesting against his decision and requesting his dismissal from the Church. By a decision of 28 June 2002, which was made public through the media, the Holy Synod of the Church (Светиот Архиерејски Синод) invited the applicant to reunite with the Church within seven days. When he refused, on 3 July 2002 another public protest was organised at the main square in the city of Kavadarci.
At an extraordinary meeting of 5 July 2002, the Holy Synod of the Church, by unanimous decision, dismissed the applicant from his office on the ground that, by his unilateral accession to the Serbian Orthodox Church, he had violated the oath (Епископско исповедание/ заклетва) by which he had bound himself to safeguard the Church’s unity and Constitution. It designated the monastery Свети Великомаченик Ѓорѓи in Negotino (“the monastery”) as his new place of residence and work. It further invited the applicant to reunite with the Church within thirty days, failing which other measures would be taken in accordance with its rules. It was also decided that the Holy Synod would run the Eparchy building with effect from 6 July 2002 (“the dismissal decision”).
By a decision of 6 July 2002, a Commission (“the Commission”) was set up to take the Eparchy building, furniture and funds from the applicant. The media were also informed about the above decisions.
On the same day the Church requested the Ministry of the Interior (“the Ministry”) to assist with the implementation of its decisions. The request stated, inter alia:
“...Due to the possible obstruction of the enforcement of this decision by the Archbishop Jovan [the applicant] or someone else, we request the Veles office of the Ministry of the Interior to take any necessary measures for its implementation...”
On 6 July 2002 police officers were deployed around the Eparchy building. At around noon, representatives of the Commission (“the archbishops”, владици) arrived in order to hand over the dismissal decision to the applicant and to take the Eparchy building. They were greeted by a group of people that have gathered in front of the entrance. The door of the Eparchy building was locked. The archbishops waited for the applicant and the other staff, who were at that moment inside the Eparchy building, to open the door. In the meantime, the number of people gathered in front of the Eparchy building increased considerably. Due to the increased tension and indications of security risks for the public order, the life and health of the applicant and other personnel in the Eparchy building, the Ministry sent a group of fifteen police officers. After an hour, the archbishops took measures to break in the Eparchy building. In this connection they instructed a locksmith to break the lock. In view of the security risks, several police officers, with the consent of the archbishops, entered the Eparchy building. After having entered, the archbishops discussed with the applicant. The police secured the Eparchy building in order to prevent the crowd from breaking in. The police assessed the situation as critical and advised the applicant that his further stay in the Eparchy building, without protection, would not be safe. In such circumstances, the applicant agreed to leave by the back door. Then, the applicant and the personnel got into a car of the Church and escorted by the police went to the monastery.
The Government submitted a DVD containing video and audio material (3, 38 min.) regarding the applicant’s eviction. According to it, when the archbishops arrived on the scene, there were people gathered in front of the Eparchy building and media representatives. At that moment, no policeman could be seen. Then a locksmith opened the door. According to an explanation given by a journalist, the lock was broken on the request of one of the archbishops. After forty-five minutes waiting, the archbishops entered the Eparchy building first. After four hours, the applicant left the Eparchy building with a car of the Church. At that moment, several policemen can be seen making a passage for the applicant’s car to leave the scene. At that moment, many more people were gathered in front of the Eparchy building.
The applicant contested the Government’s version of events. He referred to the facts as established by the first-instance court in the civil proceedings described below, which the Ministry had not contested at that time. He argued in particular that the police had accompanied the archbishops on their arrival in the Eparchy building and that the locksmith had arrived with a car secured by the police.
In July 2002 the applicant, who was represented by counsel, brought a civil action against the State and the Ministry for interference with and deprivation of possession (смеќавање на владение) of the Eparchy building. He also sought restoration in the previous state (воспоставување на владетелска состојба каква што била во моментот на смеќевањето и одземањето на владението). He claimed that at around 1 p.m. on 6 July 2002 the Ministry had interfered with his right of peaceful enjoyment of the Eparchy building which had also served as his home. He alleged that fifteen fully-equipped police officers had broken the lock, with the assistance of a locksmith, and entered the building, despite the fact that there had been no decision of a State body authorising the police forcibly to enforce the dismissal decision. After the break-in, Mr T. and Mr A., the archbishops, had served the dismissal decision on him, with which he had refused to comply. He further alleged that he had been searched and insulted by police officers. He requested that the court take oral evidence from him, Mr P.T., Mr K.G., Mr S.I., Ms C.B., personnel in the Eparchy building who had eye-witnessed the event, Mr T. and Mr A.
The applicant based his claim, inter alia, on Articles 19 § 3, 26 and 50 of the Constitution (see “Relevant domestic law and practice” below).
The Ministry replied, inter alia, that it had acted on the Church’s request to enforce the dismissal decision with the aim of securing the place and preventing the disorder which had reasonably been expected to occur. Its purpose had been to protect not only the personal safety and property of the persons who had gathered, but those of the applicant as well.
On 17 February 2003 the Veles Court of First Instance, relying on section 181(3) of the Ownership and other Property Rights Act (“the Act”), dismissed the applicant’s claim. Relying inter alia on the statements given by the applicant, Mr P.T., Mr K.G., Mr S.I. and Ms C.B. it established the following: that the Eparchy building had been the applicant’s permanent residence, namely, that the upper floor had served as a place of residence for him and the other personnel and that the working premises of the Eparchy had been on the lower floor; that at around noon on 6 July 2002, media representatives and a group of people had gathered in front of the Eparchy building. As the applicant and other members of the staff had refused to open the door, the police, assisted by a locksmith, had broken in and searched the applicant, staff and premises. The applicant had had a discussion with the archbishops and after he had refused to cooperate, the police coordinator had ordered the applicant and the personnel to leave the Eparchy building by the back door. The applicant and the personnel had then got into a car and, escorted by the police, gone to the monastery.
The court held that:
“...it is undisputed that the plaintiff [the applicant] had possession of the Povardarska Eparchy, which had served not only as the plaintiff’s [the applicant’s] place of work for his duties as a bishop, but also as his home... having regard to the anticipated obstruction by the plaintiff [applicant] or others and on the basis of the decision of 6 July 2002, the President of the Holy Synod of the Church requested [the Ministry] to enforce its decision ... As the plaintiff [the applicant] had refused to [repudiate his previous conduct], it appears that the Holy Synod’s anticipated doubts concerning enforcement of the decision and the request for police intervention were reasonable... The plaintiff [the applicant] and the personnel were taken out by the back door of the Eparchy building in order to avoid any contact with the people and any possible assault ...”
The applicant appealed on the grounds, inter alia, that the lower court had dismissed his claim despite having established that he had had possession of the Eparchy building, which had also served as his place of residence, and that that possession had been forcibly appropriated by the police. He complained that the court had wrongly applied section 181(3) of the Act, as the Church’s decision could not be considered “a decision of another body given in accordance with law”. He also complained that the Ministry had acted as an executive body of the Church by enforcing the dismissal decision with the use of force. He again invoked Articles 19 § 3 and 26 of the Constitution.
On 29 May 2003 the Skopje Court of Appeal dismissed the applicant’s appeal, finding it undisputed that the Ministry had acted at the Church’s request.
On the facts established by the first-instance court, it held that the latter’s decision should have been based on section 168 and not section 181(3) of the Act. The Court of Appeal found that:
“...the plaintiff [the applicant] had only occupied (детенција) the apartment situated in the Eparchy building on the basis of his position as a bishop. His dismissal from this position and the assignment by the Holy Synod of the Church of the monastery as his permanent place of residence and work entailed the loss of that occupancy. As the plaintiff [the applicant] did not have possession within the meaning of section 167 of the Act, he could not claim protection of the possession under section 184 of the Act.”
“Article 19 § 3
...The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law.
Article 26
The inviolability of the home is guaranteed.
The right to the inviolability of the home may be restricted only by a court decision for the investigation or prevention of criminal offences or protection of people’s health.
Article 50
Every citizen may invoke protection of the freedoms and rights set forth in the Constitution before the courts, including before the Constitutional Court of the Republic of Macedonia, in proceedings based on the principles of priority and urgency ...”
Section 156(1) and (2) of the Act provide that a property owner can bring a civil claim for restitution against the occupier (држателот) of an individually specified property. The owner has to prove that he or she has title to the property of which restitution is claimed and that the defendant has actual control of that property.
Section 167(1) of the Act provides, inter alia, that anyone who has control of property, either directly or through a representative, can claim to have possession (владение) of it.
Under section 168 of the Act, a person who, on the basis of a post of employment or a similar relationship, or as a member of a household, makes use of a property on the basis of another’s order or executes another’s decision without acquiring any personal advantage cannot be regarded as having possession (владение), as he or she is a mere occupier (прост држател или детентор).
Under section 181(1) of the Act, no one has a right unlawfully (неовластено) to disturb (смеќава) and deprive (одзема) the possession even if he or she considers having stronger right of possession. Under sub-section 3 of the Act, it is not considered an unlawful disturbance of possession if the disturbance or deprivation is authorised by law or by a decision of a court or other body taken in accordance with a law which provides for such disturbance or deprivation.
Section 182(1) of the Act provides that a person in possession (владетелот) of a property or a holder of a proprietary right is entitled to protect his or her possession from disturbance or seizure.
Section 184 of the Act provides that a person whose possession has been unlawfully disturbed or seized is entitled to request the court to establish that the disturbance or seizure has taken place, to order reinstatement and proscribe any further or similar actions. Court protection is available in special proceedings in accordance with the most recent peaceful possession, regardless of the conduct of the person in possession and whether the disturbance was lawful and in the public interest.
Section 141 of the Obligations Act defines different grounds for claiming civil compensation.
Under section 189, in the event that a human right or freedom is violated, the court may award just satisfaction regardless of whether or not compensation for pecuniary damage has been awarded.
Section 16 of the Criminal Procedure Act provides that criminal proceedings must be instituted at the request of an authorised prosecutor. In cases involving offences subject to ex officio prosecution by the State or on an application by the injured party, the authorised prosecutor is the public prosecutor, whereas in cases involving offences for which only private charges may be brought, the authorised prosecutor is the private prosecutor. If the public prosecutor finds no grounds for the institution or continuation of criminal proceedings, his role may be assumed by the injured party acting as a subsidiary prosecutor under the conditions specified in the Criminal Procedure Act.
Section 56 provides, inter alia, that where the public prosecutor finds that there are no grounds for prosecuting an offence subject to ex officio prosecution, he shall notify the injured party of his decision within eight days. He shall also inform the injured party that he is entitled to conduct the prosecution himself. The latter may take over or continue the prosecution within eight days.
Under section 141, everyone can report a criminal offence subject to ex officio prosecution. The complaint is submitted to the public prosecutor, orally or in written.
Article 145 §§ 1 and 2 of the Criminal Code provide, inter alia, that anyone who enters another’s home without authorisation is liable to a fine or to a one-year prison sentence. If the offence is committed by an official in the performance of his or her duties, he or she is liable to a term of imprisonment of between six months and five years. An attempt to commit the offence is also punishable.
Rule 3 of the Rules of the Ministry sets out measures which the Ministry’s officials can take in discharging their duties. Under sub-heading 4, Ministry officials can enter a person’s home or other premises after having shown an identity card and a court decision or order.
The Government submitted final decisions in which the national courts had convicted the defendants under Article 145 § 1 of the Criminal Code of breaching the inviolability of the victim’s home. In those cases the courts had decided on the basis of private criminal complaints brought by the victims (K.br.150/97; K.br.38/99; K.br.203/01; K.br.1201/01; K.br.1961/01; K.br.235/02; K.br.1260/02; K.br.452/05; K.br.397/06; K.br.646/06; K.br.183/07; K.br.399/07; K.br.88/08; K.br.143/08; and K.br.1321/09).
In the case XXI K.br.3876/07-I of 23 April 2009 a trial court convicted a bailiff under Article 145 § 2 of the Criminal Code of unauthorised entry of the victim’s home in order to deliver a court summons. The bailiff was subject to ex officio prosecution by the public prosecutor.


ITEMID: 001-84652
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: MARCIN v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
TEXT: The applicant, Mr Zdeněk Marcín, is a Czech national who was born in 1943 and lives in České Budějovice. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1971 the applicant inherited a house with a garden and surrounding land belonging to his grandmother who, in 1953, together with her husband, incorporated her real estate in a local agricultural cooperative.
In November 1990 another grandson living abroad appealed against the original inheritance decision.
In November 1992 the cooperative was transformed into a private enterprise.
On 13 April 1993 the applicant brought a civil action at the Kolín District Court (okresní soud) against the cooperative in order to recover the incorporated property.
On 21 September 1995 the proceedings were suspended pending the reopened inheritance proceedings.
A bankruptcy order was made regarding the cooperative's property. The proceedings were therefore stayed ex lege.
On 28 February 2000 the District Court distributed the inheritance among the applicant and other heirs. On 6 September 2000 the Prague Regional Court (krajský soud) partly modified this decision. The Regional Court's decision became final on 23 November 2000.
In a resolution of 18 October 2004 the bankruptcy proceedings against the bankrupt's property were cancelled. The resolution became final and conclusive on 17 November 2004.
In a judgment of 19 September 2005 the District Court ordered the cooperative to pay CZK 48,410 (EUR 1,809) to the applicant, dismissing the remainder of his claims.
On 4 November 2005 the applicant appealed.
On 7 February 2006 the District Court rejected his appeal as having been filed outside the statutory time-limit which had expired on 3 November 2005, the District Court's judgment having been notified to the applicant on 19 October 2005. The applicant filed a complaint against this decision. In a letter of 25 July 2006 the President of the District Court informed him that the Regional Court had returned the case-file to the District Court with an instruction that the judgment of 19 September 2005 should be properly notified to the applicant.
It appears that the proceedings are still pending.
The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court's decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).


ITEMID: 001-61604
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF BELLINI v. ITALY
IMPORTANCE: 4
CONCLUSION: Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Christos Rozakis
TEXT: 5. The applicant was born in 1926 and lived in Florence.
6. He was the owner of a flat in Florence, which he had let to A.T.
7. In a registered letter of 14 June 1983, the applicant informed the tenant that he intended to terminate the lease on expiry of the term on 31 December 1983 and asked him to vacate the premises by that date.
8. In a writ served on the tenant on 22 March 1984, the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate.
9. By a decision of 30 April 1984, which was made enforceable on 9 June 1984, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 30 April 1985.
10. On 19 September 1987, the applicant served notice on the tenant requiring him to vacate the premises.
11. On 23 October 1987, he informed the tenant that the order for possession would be enforced by a bailiff on 15 December 1987.
12. Between 15 December 1987 and 15 March 1999, the bailiff made thirty-two attempts to recover possession. Each attempt proved unsuccessful, as the applicant was not entitled to police assistance in enforcing the order for possession.
13. Pursuant to section 6 of Law no. 431/98, the enforcement proceedings were suspended until 10 September 1999.
14. On 30 January 2001, the applicant reached a friendly agreement with the tenant who was supposed to leave the premises on 1 February 2002.
15. On 31 April 2002, the applicant recovered possession of the flat.
16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. Lastly, for some cases, a suspension of the enforcement of the orders for possession until 30 June 2004 was introduced by Legislative Decree no. 147 of 24 June 2003, which became Law no. 200 of 1 August 2003.
17. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows.
18. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation.
19. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price.
20. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents.
21. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides:
“The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.”
22. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat.
23. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages.
24. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-60916
LANGUAGEISOCODE: ENG
RESPONDENT: NLD
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LORSE AND OTHERS v. THE NETHERLANDS
IMPORTANCE: 2
CONCLUSION: Violation of Art. 3 with regard to the first applicant;No violation of Art. 3 with regard to the other applicants;No violation of Art. 8;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm;Gaukur Jörundsson
TEXT: 9. The first applicant is Mr Jacobus Lorsé, who was born in 1945. The second applicant, Mrs Everdina Lorsé-Quint (born in 1961), is the wife of the first applicant. The third, fourth and fifth applicants, Pieternella Johanna Lorsé (born in 1985), Paula Martina Lorsé (born in 1987) and Jacobus Lorsé junior (born in 1992), are the children of the first and second applicants.
The sixth, seventh, eighth and ninth applicants, Maria Petronella van Esch (born in 1965), Johanna Maria Lorsé (born in 1966), Neeltje Maria Lorsé (born in 1968) and Hubertus Joseph Lorsé (born in 1970), are children of the first applicant born out of previous relationships.
The first applicant is currently serving a prison sentence in Dordrecht. The other applicants are all resident in Maastricht, with the exception of the ninth applicant who resides in Rotterdam.
10. The first applicant, hereinafter referred to as Mr Lorsé, was taken into police custody (in verzekering gesteld) on 24 July 1994 and subsequently placed in detention on remand (voorlopige hechtenis). He was initially detained in ordinary remand institutions (huizen van bewaring).
11. Mr Lorsé was convicted of drugs and firearms offences. He was sentenced at first instance to twelve years’ imprisonment and a fine of one million Netherlands guilders (NLG). On appeal the prison term was increased to fifteen years’ imprisonment, the fine remaining the same. His conviction and sentence became final on 30 June 1998 when his appeal on points of law was rejected by the Supreme Court (Hoge Raad). He is now serving that sentence. He will be eligible for provisional release no sooner than July 2004. It would appear that he has been sentenced in Belgium to a six-year prison sentence for drugs-related crimes but that the proceedings there are still pending.
12. On 14 September 1994, while the criminal proceedings were still pending, Mr Lorsé handed his counsel a letter from the prison authorities from which it appeared that it was intended to place him (Mr Lorsé) in an extra security institution. On 27 September 1994 Mr Lorsé was transferred to the Temporary Extra Security Institution (Tijdelijke Extra Beveiligde Inrichting, “TEBI”), part of the Nieuw Vosseveld Penitentiary Complex in Vught.
13. By a letter of 28 September 1994 the Minister of Justice informed Mr Lorsé that apart from the fact that he was suspected of very serious crimes, official information (ambtsberichten) was available from which it appeared that he was likely to use violence in an attempt to escape. Reference was made to the fact that he had already once managed to avoid being arrested, endangering human life in so doing. Reference was also made to the prison sentence awaiting him in Belgium. In these circumstances it was considered that public order would be severely affected should Mr Lorsé manage to escape.
14. Mr Lorsé was subsequently notified, by letters couched in similar terms and dated 21 November 1995, 29 May 1996, 5 December 1996, 16 June 1997, 9 December 1997, 19 June 1998 and 21 January 1999, of the prolongation of his detention in the TEBI and – following the rejection of his appeal on points of law on 30 June 1998 – in the Extra Security Institution (Extra Beveiligde Inrichting, “EBI”).
15. On a number of occasions Mr Lorsé made use of legal remedies to protest against his placement, and the prolongation of that placement, in the EBI. On 1 February 1999, for example, Mr Lorsé, through his counsel, lodged an appeal to the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the decision of 21 January 1999 to prolong his placement. In addition to stating that there was no factual justification for his continued detention in the EBI, he complained about the regime which he described as “ill-befitting a state governed by the rule of law”. Privacy was entirely lacking. Human contact with his wife and children was excessively restricted, any kind of intimacy with them being impossible. His psychological and physical health were affected, the symptoms being daily headaches, shaking and loss of concentration, and he had had to seek the help of the prison psychologist. He referred to the findings of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT – see below).
16. The Appeals Board gave its decision on 31 May 1999. It noted that there had been no new information since May 1996 which would tend to justify the fear that Mr Lorsé might attempt to escape. Moreover, the remainder of his sentence had significantly decreased and that, together with the nature of the offences of which he had been convicted, reduced the prospect that public order would be affected if he did escape. Finally, his behaviour was reported to be good. In these circumstances any doubt should benefit Mr Lorsé. Accordingly, the competent authorities were ordered to reconsider their decision within three weeks taking the decision of the Appeals Board into account.
17. On 15 June 1999 a placement officer of the Penitentiary Selection Centre (Penitentiair Selectie Centrum – “PSC”) recommended that Mr Lorsé should remain in the EBI. Mr Lorsé’s situation was described as “relatively stable”, the fact that his prolonged detention in the EBI was becoming more and more of a burden to him being “a normal reaction to a situation that [was] in many respects relatively extreme (waarbij het feit dat een verblijf in de EBI steeds zwaarder gaat wegen een normale reactie is op een in veel opzichten betrekkelijk extreme situatie).
18. The Minister of Justice gave a new decision on 17 June 1999, again prolonging Mr Lorsé’s detention in the EBI. It was stated that a new decision had been made taking into account advice given by the governor of the Nieuw Vosseveld penitentiary complex and the decision of the Appeals Board. In addition, reference was made to official information dated 4 June 1999 from which it appeared that there was new and recent information to the effect that Mr Lorsé still constituted an increased security risk. The nature of this information was not disclosed but it was concluded that Mr Lorsé was planning an escape with help from outside the institution and possibly involving the use of violence against persons. Reference was also made to the prison sentence which he would have to serve in Belgium. Finally, the Minister was of the opinion that in view of inter alia the seriousness of Mr Lorsé’s offences, public order would be seriously affected if Mr Lorsé managed to escape. Thus, although account had been taken of the decision of the Appeals Board, this latter decision could not prevail over the new official information.
19. Mr Lorsé’s detention in the EBI was again extended on 24 December 1999, since official information of June and November 1999 indicated that he still posed an increased security risk. In its decision of 16 March 2000 on Mr Lorsé’s appeal against the prolongation of his placement in the EBI, the Appeals Board noted his arguments to the effect that his protracted stay in the EBI had negative effects not only on him but also on his relatives, and that he had referred to the present complaint lodged with the Court. Mr Lorsé had also submitted the report of the psychiatrist Dr S. (see paragraph 26 below). The Appeals Board rejected the complaint, finding that in the absence of facts or circumstances militating against a continuation of Mr Lorsé’s detention in the EBI, the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered unreasonable or unjust. The Appeals Board noted that it had taken into account the arguments raised by Mr Lorsé relating to his psychological condition.
20. By a letter dated 10 July 2000 the Minister of Justice informed Mr Lorsé of a further prolongation of his detention in the EBI. Reference was made to inter alia official information of June and November 1999 according to which Mr Lorsé still posed an increased security risk. There were indications that an attempt at escape would in all likelihood involve the help of co-detainees and/or persons outside the institution and the use of violence, inter alia through explosives, against persons.
21. On 18 July 2000 Mr Lorsé lodged an appeal against the prolongation of his detention at the EBI with the Appeals Board, arguing that the official information of June and November 1999 had no basis in fact and further submitting that his continued detention at the EBI constituted a violation of Articles 3 and 8 of the Convention, not only with respect to himself but also with respect to his wife and children.
22. On 22 November 2000 the Appeals Board rejected the appeal, finding that the risk that Mr Lorsé might escape was still too great to justify detaining him anywhere else than in a maximum security institution. It further considered that its task was to examine the decision to prolong Mr Lorsé’s detention in the EBI, and not the regime pertaining in that institution as such. For that reason, the Appeals Board declined to rule on the complaint under Article 3 of the Convention. As to the complaint of a violation of Article 8 of the Convention, the Appeals Board considered that the second paragraph of that provision allowed for an interference with the right to respect for private and family life as long as such interference was in accordance with the law and was necessary in a democratic society in the interest of, inter alia, the prevention of disorder and crime. The Appeals Board concluded once more that in the absence of facts or circumstances militating against a continuation of Mr Lorsé’s detention in the EBI, the decision to prolong his placement was lawful and that, weighing up all the interests involved, it could not be considered unreasonable or unjust.
23. Besides lodging appeals with the Appeals Board to contest the extension of his maximum security detention, Mr Lorsé, while still detained on remand, also applied for an interim injunction (kort geding) against the State on two occasions, arguing that his placement in the EBI was unlawful. Both applications were rejected, in 1996 and 1998 respectively.
24. On 15 January 2001 Mr Lorsé was transferred from the EBI to a prison in Maastricht with a different regime. Of all prisoners who have been subjected to the maximum security regime in the Netherlands, Mr Lorsé was by far the longest-serving.
25. Mr Lorsé’s psychological condition was examined on a number of occasions. On 14 December 1999 Mr V., the head of the Psychological Department of the PSC, submitted an advisory opinion to the Minister of Justice concerning the prolongation of Mr Lorsé’s placement at the EBI. His report of that date stated:
“...
The PSC has previously reported on [Mr Lorsé] on 15 June 1999 ... At that time it was reported that [Mr Lorsé], who has been detained in the EBI since 27 September 1994, was finding it increasingly difficult to cope with his stay there. [Mr Lorsé] appeared to have reversed his day-night rhythm. [Mr Lorsé] had no contacts with the prison’s medical and mental health care team. It was reported that, all in all, a picture was beginning to emerge of a man for whom the stay in the EBI was becoming increasingly difficult to bear, with adverse consequences for his functioning. It was advised that an attempt be made to restore contacts with the medical and health care team so that the reaction to a renewed perspective of a further long stay in the EBI might be monitored.
The report of the last six months shows ups and downs with more pronounced and more frequent mood swings, especially lately. Apart from the long duration of the stay in the EBI and the lack of contact with the family, the changes in the composition of the [EBI] population also... appear to play a role.
All in all, I am of the opinion that the stay in the EBI is increasingly difficult to bear for Mr Lorsé, and, barring concrete evidence regarding the likelihood of an escape attempt, that a transfer is to be preferred on psychosocial grounds alone.”
26. On 14 December 1999 Mr Lorsé was seen, in the EBI, by an independent psychiatrist, Dr S., at the request of his lawyer. Dr S. reported as follows:
“I am unable to make a definite psychiatric diagnosis from a single psychiatric examination; in particular, there are insufficient indications to diagnose a depression.
There are, nevertheless, a number of indications suggesting that [Mr Lorsé] is suffering under the protracted isolation; he thus describes memory and orientation disorders as well as signs of depersonalisation which clearly point to that being the case.
[Mr Lorsé] is a man ... who has learned to survive through toughness. It is debatable whether the psychological carapace he has built up over the years will be capable of withstanding the current extreme isolation, and it is, in my opinion, important therefore that a close eye be kept on him. Should he decompensate in a depressive sense – the risk of which is certainly not hypothetical – this will not be without danger: in such a situation a risk of suicidal actions is not to be underestimated.”
27. On 20 March 2001, some two months after his transfer from the EBI, Mr Lorsé was seen by a different independent psychiatrist, Dr C., who had been requested by his lawyer to examine the psychological consequences of Mr Lorsé’s stay in the EBI. According to Dr C., Mr Lorsé was suffering from a moderately serious (matig ernstig) depression with endogenous features, moderately serious panic attacks and a conditioned avoidance response. Although Mr Lorsé was not found to be suicidal, he was troubled by nightmares relating mainly to suicide. He was also irritable and suffered regular panic attacks. One of the reasons for this psychiatric condition was the fact that contact with his wife and children was seriously disrupted. He was incapable of working, either alone or with others, and his activity level was very much reduced. Dr C. expressed the opinion that there was a causal link between the outward symptoms of the depression as well as the psychiatric disorders he found and Mr Lorsé’s long period of detention in the EBI. These disorders were becoming more marked now that Mr Lorsé had more opportunities to have contacts with other people following his transfer from the EBI. His isolation in the EBI meant that his complaints were less visible to the outside world and he was in a better position there to fight against them. Now that he was receiving more attention, including some from social workers in the prison, there was a lowering of his resistance and fighting spirit against his helplessness and feelings of abandonment.
28. After Dr C.’s report had been transmitted to the Government, they requested Dr D., a forensic psychiatrist employed by the Forensic Psychiatric Service of the Ministry of Justice, to examine Mr Lorsé in order to find out whether he was indeed suffering from the psychiatric disorders described by Dr C. and, if so, whether these disorders were related to his detention in the EBI. Dr D. saw Mr Lorsé twice, in June and July 2001, and she noted in her report of 9 July 2001 that during these meetings he had not displayed any symptoms of a disturbance of a depressive nature. She replied to the questions put by the Government that at the time of her examination, Mr Lorsé was not suffering from a “moderately serious depression”. Although immediately after his transfer from the EBI he had had mild symptoms of an unspecified adjustment disorder, this was now in complete remission. Dr D. acknowledged that this disorder was probably directly related to his prolonged detention in the EBI, but noted that most people who were detained in semi-isolation or maximum security facilities reacted in a similar manner. In Dr D.’s opinion, Mr Lorsé would have presented a similar profile if he had been detained in any other closed penal institution with rules similar to those in the EBI or semi-isolation facilities.
29. In a note dated 16 November 1999, the general practitioner of the third, fourth and fifth applicants described these children as being seriously traumatised as a result of the lack of contact with their father.
30. At the request of Mr Lorsé’s lawyer, the probation services (Reclassering) issued an advisory report on 18 November 1999 describing the situation of Mr Lorsé’s wife and their three children (i.e. the second to fifth applicants). Superficially, they seemed to have managed to cope with the problems they had faced in recent years. However, the very limited possibilities for contact with Mr Lorsé were causing problems. The fourth applicant had developed anorexia nervosa three years previously. The second applicant felt unable to discuss relationship problems with her husband knowing that everything that was said would be recorded and could be used against her husband. In the report, the family was described as “psychological wreckage” (psychisch wrakhout). The process which the three children were going through in relation to their father was likened to a process of mourning. In conclusion, the probation services supported the appeal which Mr Lorsé had instituted against the prolongation of his placement in the EBI.
31. In an information report (voorlichtingsrapport) of 20 March 2001, again requested by Mr Lorsé’s lawyer, the probation services stated that the term “psychological wreckage” was still fully applicable to Mr Lorsé’s family.
32. 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 1999 Prisons Act – Penitentiaire beginselenwet).
The actual selection is carried out by a Ministry of Justice placement officer (Article 15 §§ 1 and 3 of the 1999 Prisons Act).
33. 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.
34. 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). In principle, placements in the EBI are made from an ordinary custodial institution. The governor of the custodial institution submits a proposal to the placement officer, giving reasons why the persons concerned should be detained in the EBI. Before submitting this proposal, the governor requests information about the person concerned from the secretary of a special EBI selection board, which comprises a representative of the Public Prosecutions Service, a psychologist and a representative of the board of governors of the Nieuw Vosseveld Penitentiary Complex in Vught. The secretary having obtained such information from various sources, the governor then discusses his proposal with the detainee. Finally, he completes his report by adding the detainee’s comments and any objections he may have, and submits his proposal to the selection board.
35. The placement officer considers the proposal, consults with the governor and interviews the detainee. He then draws up his own report on the governor’s proposal and submits it to the selection board secretary. If the detainee is serving a long sentence or if a psychologist considers it necessary, it may be forwarded to the Penitentiary Selection Centre, which is responsible for issuing recommendations on the psychological aspects of the enforcement of custodial sentences and orders. The PSC is always consulted about first placements. The case is subsequently discussed by the selection board, chaired by the placement officer.
36. The decision to detain a prisoner in an EBI is reviewed every six months. The EBI governor must submit a behavioural report (gedragsrapportage) on the detainee at corresponding intervals. Prior to the decision to prolong the placement in the EBI, the detainee is interviewed by the placement officer. In all other respects the procedure is the same as the placement procedure.
Decisions as referred to above are nominally those of the Minister of Justice.
37. The 1999 Prisons Act and the Prisons Order (Penitentiaire maatregel) apply in full to detainees in the EBI, giving them the same rights and obligations as detainees in ordinary institutions. A number of security measures is built into the regime, and detainees are under surveillance at all times outside their cells. These special arrangements are set out in the EBI house rules (Regeling model huisregels EBI, 12 October 1998, 715635/98/DJ, Government Gazette 1998, no. 233). The following are features of the EBI regime:
– all contacts with the outside world are screened; all correspondence and telephone calls (twice a week for ten minutes) are screened except for those with privileged contacts; detainees must be separated from their visitors (one visit a week for one hour) by a transparent partition (“closed visits”); members of their immediate families, spouses and partners may visit once a month without such partition (“open visits”), although physical contact is restricted to a handshake on arrival and departure; visitors must submit to a search of their clothes (frisking) before an “open” visit;
– only one detainee at a time may come into contact with staff, and at least two staff members must be present; for this purpose, special corridors have been built leading to areas where group activities take place; these areas are under camera surveillance or supervised by staff who are physically separated from inmates by a partition;
– detainees may take part in sports at least twice a week; they may spend at least one hour a day outdoors and may also use the exercise yard at fixed times during recreation periods in their programme; they are entitled to spend at least six hours a week engaging in group recreation;
– no more than four people at a time may take part in group activities;
– detainees who leave the premises must be handcuffed, for instance when going to court or for hospital treatment; they may also be handcuffed inside the EBI, in areas where they might have access to objects with which they could injure staff or take hostages, for example when visiting the hairdresser’s or the clinic, or when being escorted to “open” visits;
– cells are periodically (in practice: weekly) subjected to a more thorough search; at the same time or immediately afterwards the detainees are frisked and strip-searched; the strip-search, which involves an external viewing of the body’s orifices and crevices, including an anal inspection, is carried out in a closed room and, whenever possible, by a person of the detainee’s own gender;
– frisking and strip-searching also takes place
▪ on arrival in and release from the EBI
▪ before and after “open” visits
▪ after visits to the clinic, the dentist’s surgery or the hairdresser’s;
– the EBI governor, or in urgent cases an EBI officer or employee, may decide that the detainee must be subjected to an internal body search if this is considered necessary to prevent the maintenance of good order or safety within the prison being endangered, or to protect the detainee’s own health; an internal body search is usually carried out by a doctor but he may also instruct a nurse to carry out the search.
38. If a prisoner wishes to contest the decision either to place him in the EBI or to prolong such placement, he could, at the time relevant to the present case, file an appeal to the three-member Appeals Board of the Central Council for the Administration of Criminal Justice (Article 73 § 1 of the 1999 Prisons Act). The Central Council, which was superseded by the Council for the Administration of Criminal Justice and Protection of Juveniles on 1 April 2001, was constituted of members appointed and dismissed by Royal Decree. Its duties included 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 sub 1 of the Prisons Act 1953 – Beginselenwet gevangeniswezen). It also had other duties, including the hearing of appeals.
39. If the Appeals Board considered the appeal well-founded, it could instruct the Minister to make a new decision in which its own decision was to be taken into account, for which it could set a time-limit. It could also rule that its decision was 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 1999 Prisons Act).
40. A number of persons detained in the EBI has in the past instituted interim injunction proceedings, sometimes together with close family members, in order to have the regime, or certain aspects of it, relaxed. However, in cases decided under domestic law it has been held that where pursuant to prison law an administrative remedy, with sufficient procedural safeguards, is available against a particular decision, there is no room for an injunction decision that is in conflict with a decision made in the administrative proceedings (see, mutatis mutandis, the Supreme Court’s judgment of 25 June 1982, Nederlandse Jurisprudentie (Netherlands Law Reports) 1983, no. 194; and the judgment of the Court of Appeal (Gerechtshof) of The Hague of 22 June 1995, case no. 94/259 KG, relating specifically to aspects of the EBI regime). In cases where such an administrative remedy was available and where detainees and family members instituted injunction proceedings jointly, it has been argued on behalf of the State that those family members should await the outcome of the administrative proceedings even if the family members themselves may not appear as parties to those proceedings. In the aforementioned judgment of the Court of Appeal of The Hague it was held that the interests of family members must be deemed to have been taken into account in the administrative proceedings.
41. In interim injunction proceedings instituted by an EBI detainee, his wife and one of his children, in which one of the points at issue was the EBI governor’s refusal to allow the detainee to conduct telephone conversations in Kurdish, counsel for the State had argued on appeal that the request for an interim injunction should be declared inadmissible, since the detainee’s complaint had already been dealt with by the Central Council. However, by judgment of 18 March 1999, the Court of Appeal of The Hague declared the appeal admissible because, the Central Council having ruled on the detainee’s complaint by then, there was no longer an administrative procedure pending which had to be disposed of on penalty of his civil proceedings being declared inadmissible. The Court of Appeal then proceeded to reject the request for an interim injunction since the Central Council in its decision had considered the decision of the EBI governor lawful and the proceedings before the Central Council were deemed to have sufficient procedural safeguards (case no. 98/1349 KG, Kort Geding (“Interim Injunction Law Reports”) 1999, no. 173).
42. In a decision of 11 January 1994 (case no. 93/1142, Sancties (“Sanctions”) 1994, Issue 1, no. 5), in proceedings lodged by 13 detainees who argued that the maximum security regime was in violation of inter alia Article 3 of the Convention, the President of the Hague Regional Court ordered the State to amend the regime in such a way that detainees be given more time to telephone their lawyers and that they be allowed visits from members of their immediate family without a glass partition and with a modicum of physical contact. Visiting regulations were subsequently changed in line with this judgment.
43. 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 11place ‘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 a 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.
Finally, 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.”
44. 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.”
45. 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 policy documents for the mental well-being of detainees held in maximum security conditions was indeed evident in the day-to-day running of the EBI in that EBI personnel proved aware of the tension between security and humanity, and endeavoured to reduce this tension. It was further concluded in the report that a study of the psychological impact of a high security regime was feasible. The researchers nevertheless emphasised that they had examined neither the quality of the care for the mental well-being of the EBI detainees, the actual psychological condition of the detainees nor the effects which the regime was having on them.
46. The Minister of Justice has commissioned a follow-up study from the same researchers, involving monitoring day-night rhythm stress and other factors among maximum security detainees and a control group of detainees in semi-isolation. This study is set to be completed by Summer 2003.
VIOLATED_ARTICLES: 3
NON_VIOLATED_ARTICLES: 13
3
8