CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 août 2001

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LORSÉ, Paula M. LORSÉ, Jacobus LORSÉ (junior), Maria P. VAN ESCH, Johanna M. LORSÉ, Neeltje M. LORSÉ and Hubertus J. LORSÉ against the Netherlands The European Court of Human Rights (First Section), sitting on 3   April and 28 August 2001 as a Chamber composed of   Mrs   E. Palm , President ,   Mrs   W. Thomassen ,   Mr   Gaukur Jörundsson ,   Mr   C. Bîrsan ,   Mr   J. Casadevall ,   Mr   B. Zupančič ,   Mr   T. Panţîru , judges , and   Mr   M. O’Boyle , Section Registrar , Having regard to the above application introduced on 19 November 1999 and registered on the same day, Having regard to the partial decision of 18 January 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the parties’ oral submissions at the hearing on 3   April   2001, Having deliberated, decides as follows: THE FACTS The first applicant is Mr Jacobus Lorsé, who was born in 1945. His profession is given as managing director/trader. The second applicant, Ms 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 Maastricht. The other applicants are all resident in Roosendaal, with the exception of the ninth applicant who resides in Rotterdam. All applicants are Netherlands nationals. They are represented before the Court by Mr   A.A. Franken, a lawyer practising in Amsterdam. The respondent Government are represented by their Agent Mr R. Böcker, of the Netherlands Ministry of Foreign Affairs. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The 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 ). 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 an six-year prison sentence for drugs-related crimes but that the proceedings there are still pending. 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. The following day Mr Lorsé’s counsel wrote a letter of protest to the Ministry of Justice, for the attention of the Chairman of the Extra Security Institutions Board ( EBI Commissie ). 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. 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 ( ambtsberichte n) 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. 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 EBI. Beginning with the letter of 29 May 1996 reference was also made to a telephone conversation between the applicant and another person, which had been intercepted between November 1995 and May 1996, in which the applicant had said that he had assistants outside who would do anything he asked and that he could have a car registration number traced within five minutes. The decision of 21 January 1999 was handed to Mr Lorsé on 27 January. On 1 February 1999 Mr Lorsé, through his counsel, lodged an appeal against it to the Appeals Board ( beroepscommissie ) of the Central Council for the Application of Criminal Law ( Centrale Raad voor Strafrechtstoepassing ). 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). A hearing took place on 12 April 1999 before a single member of the Appeals Board. The Appeals Board gave its decision on 31 May 1999. It noted that Mr   Lorsé had, at some time between November 1995 and May 1996, in the course of a telephone conversation, made a statement which, although Mr   Lorsé had provided a different explanation, had apparently led the authorities to believe that he might try to escape. There had been no new information since then which would tend to justify such fears. 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. On 10 June 1999 the applicant’s counsel wrote to the competent Ministry of Justice official. Mr Lorsé had been informed the previous day that it would be proposed on the basis of new, apparently official information to prolong his detention in the EBI yet again. He asked to be allowed to take cognisance of this new information and comment on it, and if possible to be heard. Mr Lorsé was heard on 14 June 1999 by a Ministry of Justice selection official. It appears that he expressed dismay at the sudden emergence of new information, which in his contention could not be correct. He had no idea where any such information might have come from. On 15 June 1999 the selection official gave a recommendation to the effect that Mr Lorsé should remain in the EBI. This opinion was based on the applicant’s having violently evaded arrest on 16 May 1994; official information dating from July and September 1994 which indicated that he intended to escape; the above-mentioned telephone conversation intercepted between November 1995 and May 1996; the sentence imposed; and the seriousness of Mr Lorsé’s crimes. It was mentioned that Mr Lorsé’s situation was “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 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 ). 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 the help of persons 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 he 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. Mr Lorsé, through his counsel, lodged a new appeal to the Appeals Board on 22 June 1999. He noted that the new official information had been received subsequent to the decision of 31 May 1999, which he regarded as in itself objectionable ( hetgeen te denken geeft ). He further denied that any such information had a basis in fact. It did not appear from the Minister’s decision that the new official information had been examined for relevance and reliability. The Minister’s decision was therefore unreasonable and unjust. Moreover, the elementary principle audi et alteram partem had not been observed. A hearing took place on 22 July 1999 before a single member of the Appeals Board of the Central Council for the Application of Criminal Law. The Appeals Board gave its decision on 10 November 1999. Mr Lorsé’s appeal was rejected. This decision was based on an opinion obtained from the governor of the Nieuw Vosseveld penitentiary complex, the recommendation dated 15 June 1999 of the Penitentiary Selection Centre and the opinion of the Ministry of Justice official. The decision appealed against could not, in the circumstances, be considered unreasonable and unjust. Moreover, since it was apparent that Mr Lorsé had had the opportunity to comment on the opinion of the governor, the decision-making process had been attended by sufficient guarantees. According to an official report of 30 November 1999 plans were being developed to bring about Mr Lorsé’s escape from the EBI around New Year’s Eve of that year and these plans were said to include the use of explosives. On 31   December 1999 Mr Lorsé was transferred from his own cell to a different one within the EBI, and outside the EBI a large police presence was deployed. Mr   Lorsé subsequently filed an objection against that transfer with the institution’s Supervisory Board ( Commissie van Toezicht ). In the proceedings before the Supervisory Board, the governor of the EBI stated that the transfer of Mr Lorsé had only been effected in order to protect his safety, that there had been no indications that Mr Lorsé was attempting to stage a break-out and that the deployment of police outside the EBI that night had not been directed at Mr   Lorsé. The Supervisory Board subsequently found that the information received had revealed that on New Year’s Eve an action was going to be undertaken against the EBI. Although this action was apparently not related to Mr   Lorsé’s presence in the EBI, it did raise fears for his safety. By letter dated 10 July 2000 the Minister of Justice informed Mr Lorsé of the prolongation of his detention in the EBI. Reference was made to the official information dating from 1994, to the telephone conversation intercepted between November 1995 and May 1996, to Mr Lorsé’s having violently evaded arrest on 16 May 1994, to his conviction of very serious crimes, to the sentence imposed, to the prison sentence awaiting him in Belgium and to a possible further conviction in that country. Moreover, reference was also made to 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. On 18 July 2000 the applicant 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 that the requirements of Article 6 of the Convention demanded that he have access to that information. Referring to the statements of the EBI governor to the Supervisory Board, he stressed that at no stage during all the time he had been detained in the EBI had concrete indications been found to suggest that he harboured any intention of escaping. Mr Lorsé further submitted 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. On 19 October 2000 the Appeals Board requested the Ministry of Justice selection official to elaborate on the discrepancy between the information contained in the official report of 30 November 1999, to the effect that plans were being developed to help Mr Lorsé escape, and the statement made by the EBI governor before the Supervisory Board that Mr Lorsé had been transferred to a different cell for safety reasons and that the actions being carried out outside the EBI were not directed at Mr Lorsé. In reply, the selection official informed the Appeals Board that these actions had served to prevent or halt the execution of plans aimed at the escape of Mr   Lorsé. A direct connection between these actions and Mr Lorsé, and hence between the actions and the governor’s decision to transfer Mr Lorsé, did therefore exist. 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 of the selection official to prolong Mr Lorsé’s detention in the EBI, and not the regime pertaining in that institution. For that reason, the Appeals Board declined to rule on the complaint under Article 3 of the Convention. The Appeals Board held that Article 6 of the Convention did not apply to the appeal proceedings before it, but that in any event those proceedings had been fair. As to the complaint of a violation of Article 8 of the Convention, finally, the Appeals Board considered that the decision to prolong Mr Lorsé’s detention in the EBI was in accordance with the law and, having regard to all the interests involved, could not be considered unreasonable or unjust. Besides lodging appeals with the Appeals Board to contest the extension of his maximum security detention, Mr Lorsé, while still detained on remand, also instituted interim injunction proceedings ( kort geding ) against the State on two occasions with a view to securing his transfer from the EBI. By judgment of 22 March 1996, the President of the Hague Regional Court ruled against Mr Lorsé, dismissing the claim that his assignment to the EBI was unlawful. The appeal against this judgment was rejected by the Hague Court of Appeal on 19 December 1996. The court was of the opinion that Mr Lorsé should have submitted his application for a transfer from the EBI to the court that was hearing the criminal case, pursuant to Article 78 §   4 of the Code of Criminal Procedure ( Wetboek van Strafvordering , “CCP”). A second application for an interim injunction was rejected by the president of the Hague Regional Court on 25 February 1998, for the same reasons as those adopted by the Court of Appeal in its aforementioned judgment. 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. Mr Lorsé’s psychological condition has been examined on a number of occasions. A report dated 14 December 1999, drawn up by the Penitentiary Selection Centre ( Penitentiair Selectie Centrum ) prior to a decision on the prolongation of his placement at the EBI being taken, states that it had previously been found that Mr Lorsé was finding it increasingly difficult to cope with his detention in the EBI and that this was having adverse consequences on his functioning. In the six months preceding the drawing up of the report, Mr Lorsé had suffered more pronounced and more frequent mood swings. The author of the report expressed as his opinion that, barring concrete evidence regarding the likelihood of an attempt at escape, a transfer to a different place of detention was to be preferred. On 14 December 1999 Mr Lorsé was seen, in the EBI, by an independent psychiatrist at the request of his lawyer. As the psychiatrist only saw Mr   Lorsé once, he was unable to make a definite psychiatric diagnosis and there were insufficient indications to diagnose a depression. There were, however, some indications that Mr Lorsé was suffering from the protracted isolation. In his report, the psychiatrist described Mr Lorsé as a man who was used to surviving through toughness. It was debatable, however, whether the psychological carapace he had built up over the years would be capable of withstanding the current extreme isolation. The psychiatrist advised to keep a close eye on Mr Lorsé as the danger of him decompensating in a depressive sense was not to be underestimated, and in such a situation Mr Lorsé might well become suicidal. On 20 March 2001, some two months after his transfer from the EBI, Mr   Lorsé was seen by a different independent psychiatrist who had been requested by his lawyer to examine the psychological consequences of Mr   Lorsé’s stay in the EBI. The psychiatrist diagnosed a moderately serious depressive condition. 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 the contact with his wife and children was seriously disturbed. He was incapable of working, either alone or with others, and his activity level was very much restricted. The psychiatrist expressed as his opinion that there was a causal link between the psychiatric disturbances found and Mr Lorsé’s long period of detention in the EBI. These disturbances 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. 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. The general practitioner of the sixth applicant reported in a note of 18 November 1999 that this applicant had suffered a serious depression relating to the fact that she had not been allowed to see or speak to her father for five years. 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-fifth applicants). On the surface, 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 is 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. 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. B.     Relevant domestic law and practice 1.     The decision to detain a person in a particular institution All Netherlands penal institutions fall into one of five security categories, ranging from very limited security ( zeer beperkt beveiligd ) to extra security ( extra beveiligd ). The Minister of Justice lays down criteria according to which prisoners are to be selected for each such category (Article 13 (1) and (3) of the Penitentiary Principles Act – Penitentiaire beginselenwet ). The actual selection is carried out by a Ministry of Justice selection official (Article   15 (1) and (3) of the Penitentiary Principles Act). A special Ministry of Justice circular governs decisions to detain a prisoner in an extra security category institution or EBI (Ministry of Justice circular no. 646188/97 of 22   August   1997). EBIs are intended for prisoners who, in descending order of importance, a)   are considered extremely likely to attempt to escape from closed penal institutions and who, if they succeed, pose an unacceptable risk to society in terms of again committing serious violent crimes; or b)   if they should escape, would pose an unacceptable risk to society in terms of severe disturbance of public order, the risk of escaping being, as such, of lesser importance. If a prisoner is to be placed in an extra security institution or EBI the advice of a special EBI selection board is sought beforehand . The decision to detain a prisoner in an EBI is reviewed every six months. The EBI governor must submit a report at corresponding intervals, the purport of which he must discuss with the prisoner. The governor transmits his report to the selection official. If the latter considers that the prisoner’s detention in the EBI should continue, he so informs the EBI selection board, to which it falls to decide. Should the EBI selection board be unable to reach an agreement on the matter, a decision is made by the Director of the Prison System ( directeur gevangeniswezen ). Decisions as referred to above are nominally those of the Minister of Justice. 2.     Legal remedies Article 78 § 4 CCP stipulates that in its decision to detain the accused on remand the trial court indicates the place where this detention shall take place. Prior to 1 January 1999, if the accused was of the opinion that a decision to detain him at a particular institution of detention was unlawful, he could request the trial court to decide that he would be transferred to another place of detention. On 1 January 1999 the Penitentiary Principles Act entered into force. Pursuant to the provisions of that Act, if the prisoner wishes to contest the selection decision, he may lodge an objection to the selection official (Article 17 (1) of the Penitentiary Principles Act), after which an appeal lies against the decision on the objection. However, no objection need be lodged if the selection official has heard the prisoner before taking his decision (Article 17 (5)). Appeals against decisions of the selection official are decided by a three-member Appeals Board of the Central Council for the Application of Criminal Law (Article 73 (1) of the Penitentiary Principles Act). The Central Council is constituted of members who are appointed and dismissed by Royal Decree. Its duties include advising the Minister of Justice, at the latter’s request or proprio motu , on matters concerning the application of policy and legal rules relating to the prison system (Articles 4 (1) and 5 (1) of the Prisons Act – Beginselenwet gevangeniswezen ). It also has other duties, including the hearing of appeals. The Appeals Board may delegate the hearing of the prisoner to one of its members or it may decide to dispense with a hearing altogether (Article 73 (4)). If the Appeals Board considers the appeal well-founded, it may instruct the Minister to make a new decision in which its own decision is to be taken into account, for which it may set a time-limit. It may also rule that its decision is to take the place of the decision appealed against, or confine itself to annulling the latter decision (Article 68 (3) and (4) taken together with Article 73 (4) of the Penitentiary Principles Act). 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. In a decision of 11   January 1994 (case no. 93/1142, Sancties (“Sanctions”) 1994, Issue 1, no.   5), in proceedings lodged by 13 detainees, the President of the Hague Regional Court ordered the State to amend the regime to the effect 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. Where pursuant to prison law an administrative remedy, with sufficient procedural safeguards, is available against a particular decision, cases decided under domestic law have held that there is no room for an injunction decision that is in conflict with a decision made in the administrative proceedings (cf., mutatis mutandis , the Supreme Court’s judgment of 25 June 1982, Nederlandse Jurisprudentie (Netherlands Law Reports) 1983, no. 104; and the judgment of the Court of Appeal 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. C.     The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment The CPT visited the Netherlands from 17 until 27 November 1997. Its findings with regard to the (T)EBI and the EBI were the following ( Report to the Netherlands Government on the visit to the Netherlands carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 17 to 27   November 1997 , CPT/Inf (98) 15, excerpt): “58. The Nieuw Vosseveld Prison Complex, which is located in a heavily-wooded area of Vught, began life in 1953 as a prison for some 140 young offenders, and has since expanded to become one of the largest prison complexes in the Netherlands. At the time of the CPT’s visit, it had a total capacity of 621 places for young offenders and adult male prisoners. The focus of the CPT’s visit to the establishment was the national “extra security institution” (unit 5), which provides 35 places for prisoners who have been deemed likely to attempt to escape using violence (17 places for remand prisoners and 18 places for convicted inmates). The unit is located in two distinct buildings: the 11-place “temporary extra security institution” (Tijdelijk Extra Beveiligde Inrichting - (T)EBI) opened in August 1993 and is physically located in one wing of unit 1, while the 24-place, custom-built, “extra security institution” (Extra Beveiligde Inrichting - EBI) was completed in August 1996. b. material conditions 59. The cells seen by the CPT’s delegation in both the (T)EBI and EBI buildings were of a reasonable size for single occupancy (some 9 m²), appropriately furnished (bed, chair, storage cupboard and table) and equipped with a lavatory and wash basin. In-cell artificial lighting was of a good standard in both buildings; however, access to natural light was noticeably poorer in the (T)EBI (where the cell windows are partially obscured by frosted glass panels) than in the EBI. The ventilation in the (T)EBI cells also left something to be desired. A number of the (T)EBI prisoners interviewed by the delegation complained about these shortcomings. The CPT recommends that steps be taken to improve access to natural light in cells in the (T)EBI. The visiting delegation was informed that work to improve the ventilation system in the (T)EBI was due to begin in January 1998; the Committee would like to receive confirmation that this work has now been completed, together with details of the improvements involved. 60. More generally, while the EBI was located in bright and reasonably spacious premises, the (T)EBI (which is also known as the “oud bouw” or “old building”) was a markedly more cramped facility. The CPT would like to be informed of whether the Dutch authorities plan to close the “temporary” extra security institution in the foreseeable future. c. regime 61. The CPT’s views on the nature of the regime which should be offered to prisoners held in special security units were set out in detail in the report on its 1992 visit to the Netherlands. In that context, the Committee welcomed the recommendation of the Hoekstra Commission that any future EBI should have “as normal a regime as possible”. In its 1992 report, the CPT stressed that prisoners should enjoy a relatively relaxed regime (able to mix freely with the small number of fellow prisoners in the unit; allowed to move without restriction within what is likely to be a relatively small physical space; granted a good deal of choice about activities, etc.) by way of compensation for their severe custodial situation. Special efforts should be made to develop a good internal atmosphere within such units. The aim should be to build positive relations between staff and prisoners. This is in the interests not only of the humane treatment of the unit’s occupants but also of the maintenance of effective control and security and of staff safety. The existence of a satisfactory programme of activities is just as important – if not more so – in a special detention unit as on normal location. It can do much to counter the deleterious effects upon a prisoner’s personality of living in the bubble-like atmosphere of such a unit. The activities provided should be as diverse as possible (education, sport, work of vocational value etc.) As regards, in particular, work activities, it is clear that security considerations may preclude many types of work activities which are found on normal prison location. Nevertheless, this should not mean that only work of a tedious nature is provided for prisoners. In this respect, reference might be made to the suggestions set out in paragraph 87 of the Explanatory Memorandum to Recommendation No. R(82)17 of the Committee of Ministers of the Council of Europe. 62. The current regime in the (T)EBI and EBI units is governed by a circular which was issued by the Director General of Prison Services on 22 August 1997 (cf. document 646189/97/DJI). According to the circular: “The extra security institution (EBI) at Vught has a limited communication regime. A differentiation of regimes is referred to within the EBI, where a distinction is made between what is known as the A regime, where greater restrictions apply, and the B regime, with less extreme restrictions. Groups of between two and a maximum of four inmates take part in activities. Under the B regime, a maximum of four inmates takes part in communal activities, while the maximum number is three under the A regime. Communal activities involve only inmates from a single section. For security reasons, staff in contact with inmates must always outnumber the inmates, or must even be completely separated from them physically by a transparent (glass) wall. Moreover, with a view to the safety of the staff concerned, in those cases covered by Section 15, sub-sections 2 and 3, chapter III, of the internal regulations of the Vught EBI, inmates’ movements are restricted by handcuffs.” 63. The delegation found that, in practice, out-of-cell time in the (T)EBI and EBI on a given day varied from a minimum of one hour (of outdoor exercise) to a maximum of some four and a half hours (of outdoor exercise/recreation and/or sport). Depending upon the regime in which an inmate had been placed (A/B) and the group to which they had been allocated, these activities would take place with between one and three other inmates. The outdoor exercise yards in the EBI were of a reasonable size and a “running strip” was available for inmates who wished to engage in more strenuous physical activities. The exercise yards in the (T)EBI were also large enough to enable prisoners to exert themselves physically; however, their cage-like design rendered them rather oppressive facilities. During recreation periods (of one to two hours), inmates were allowed access to communal areas where they could associate with each other, cook and eat their own food, use a computer and/or play games including table tennis. As regards facilities for sport , each of the four units in the EBI was equipped with an impressive array of exercise equipment, located in a lofty glass atrium. However, inmates only had access to this equipment for one or two 45 minute sessions per week. Again, the equivalent facilities in the (T)EBI were of a lower standard. The EBI also had a large and well-equipped gymnasium but, at the time of the visit, it appeared that comparatively little use was being made of this facility. There were no organised education activities. There was also no out-of-cell work ; some in-cell work was offered to inmates, but it was of a very unchallenging nature (e.g. stringing plastic curtain hooks onto short rods). 64. All inmate activities within the (T)EBI and EBI were subject to a high level of staff surveillance (which is perfectly understandable in a unit of this type); however, direct contacts between staff and inmates were very limited (staff and inmate usually being separated by armoured glass panels). This is not conducive to building positive relations between staff and prisoners. Contact with non-custodial staff – including medical staff – was also subject to a number of very significant restrictions (...). 65. It should also be noted that prisoners were regularly strip searched (a practice euphemistically referred to as “visitatie”). Such searches – which included anal inspections – were carried out at least once week on all prisoners, regardless of whether the persons concerned had had any contact with the outside world. 66. Concerning contact with the outside world, it should be noted that the house rules for the (T)EBI and EBI units provide that prisoners have the right to receive one visit of one hour per week from family members and other persons approved in advance by prison management. In principle, visits took place under “closed” conditions (i.e. through an armoured glass panel in a visiting booth). Prisoners also had the right to request one “open” visit per month from family members; however, physical contact during such visits was limited to a handshake on arrival and leaving. Prisoners and their families remained separated by a table equipped with a chest-high barrier and prison staff stood directly behind the prisoner throughout the visit. A number of inmates interviewed by the delegation indicated that, given the upsetting effects which these restrictions had had upon their families, they no longer requested “open” visits. 67. To sum up, prisoners held in the (T)EBI and EBI units were subject to a very impoverished regime. They spent too little time out of their cells; when out of their cells they associated with only a small number of fellow inmates and their relations with staff and visitors were very limited; consequently, they did not have adequate human contact. Further, the programme of activities was underdeveloped. This was particularly the case as regards education and work. However, even as regards sport, inmates had insufficient access to the very good facilities available. Moreover, certain aspects of the regime (in particular, systematic strip searching) did not appear to respond to legitimate security needs, and are humiliating for prisoners. 68. The delegation’s lengthy interviews with eight prisoners held in the (T)EBI and EBI indicated that the regime as a whole was having harmful psychological consequences for those subjected to it. Indeed, the interviews revealed a consistent association of psychological symptoms which appeared to have been induced by the regime. The inmates concerned displayed the following symptom profile: - feelings of helplessness , which took the form of a disturbance of normal identity and severe difficulty of projection into the future; in certain cases, the loss of identity was associated with definite episodes of depersonalisation; - feelings of powerlessness , closely linked to helplessness, and leading to regression and excessive pre-occupation with bodily functions; - anger , the predominant emotion being one of rage (clearly linked to feelings of powerlessness) and directed against self (with expressions of low esteem, lack of confidence and associated depressive symptoms) and others; - communication difficulties , associated with the above-mentioned depersonalisation symptoms. The delegation’s concerns about the harmful psychological consequences of the regime were reinforced during its subsequent visit to the Dr S. van Mesdag Clinic, where it interviewed a number of patients who had previously been held in the (T)EBI or EBI, in whom persistent psychological sequelae (insomnia; anxiety symptoms; disturbance of identity; emotional liability and psychosomatic symptoms) were clearly present. The CPT would add that it is aware that the psychologist employed in the (T)EBI and EBI has publicly expressed the conviction that the regime has led to “no significant harmful effects on prisoners”. However, this opinion has never been subject to any form of peer review or professional assessment. It should be added that the Psychiatric Adviser to the Ministry of Justice Forensic Health Bureau expressed a contrary view to the delegation, citing as an example a case of a prisoner who had developed a florid paranoid psychosis while held in the (T)EBI. 69. In the light of all of the information at its disposal, the CPT has been led to conclude that the regime currently being applied in the (T)EBI and EBI could be considered to amount to inhuman treatment. To subject prisoners classified as dangerous to such a regime could well render them more dangerous still. 70. The facilities in the extra security institution are of a high standard. They are quite capable of offering a regime meeting the criteria set out in paragraph 61 without jeopardising legitimate security concerns. The CPT recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in paragraphs 61 to 67. In particular, the existing group system, if not discarded, should at least be relaxed and inmates should be allowed more out-of-cell time and a broader range of activities. Further, the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint. Similarly, current visiting arrangements should be reviewed; the objective should be to have visits taking place under more open conditions.” The Netherlands Government responded in the following terms ( Interim report of the Dutch Government in response to the report of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) on its visit to the Netherlands from 17 to 27 November 1997 , CPT/Inf (98) 15, excerpt): “3. The ‘Extra Security Institution’ ((T)EBI/EBI) at the Nieuw Vosseveld Prison Complex Recommendations by the CPT 28. (...) (...) 29. The CPT recommends that the regime currently applied in the extra security institution be revised in the light of the remarks set out in paragraphs 61 to 67. In particular, the existing group system, if not discarded, should at least be relaxed and inmates should be allowed more out-of-cell time and a broader range of activities. Further, the current searching policies should be reviewed in order to ensure that they are strictly necessary from a security standpoint. Similarly, current visiting arrangements should be reviewed; the objective should be to have visits taking place under more open conditions (paragraph 70) Response: The (T)EBI houses prisoners who are deemed exceptionally likely to attempt to escape, either with help from outside or by violent means. Generally speaking, they fall into three categories: prisoners believed to be members of criminal organisations; prisoners serving sentences for manslaughter or murder; and prisoners who have escaped from prison in the past either by taking staff hostage or by using firearms (and perhaps with help from outside). Arrangements for the detention of such prisoners need to be based first and foremost on systematic, fail-safe security arrangements, though a humane regime should then be provided within that context. The task of the EBI, like any other prison, is to execute custodial sentences without disruption. The restrictions imposed on prisoners should be no more than are necessary to deprive them of their liberty. What distinguishes the EBI from other prisons is the nature of the restrictions required to achieve that purpose. They must be more severe because the prisoners present, by definition, an above-average risk of escape or disruption of the normal prison regime. In practice, this means that the purpose of the (T)EBI and EBI is to create a place and regime from which it is impossible to escape, even by taking staff hostage. The regime in the EBI is the most severe anywhere in the Netherlands. For that reason, use of the institution is kept to a minimum and the decision to place prisoners there is taken and later reviewed at frequent intervals by a broad-based external committee. Despite the severity of the regime, prisoners in the EBI are offered sufficient out-of-cell time (paragraph 63) and have the opportunity to take part in recreational, sporting, musical, creative, educational and other activities. The range of activities on offer gives prisoners regular opportunities for human contact and the staff of the EBI deliberately strive to encourage such contact and participation in activities wherever possible. The small size of the unit’s population (paragraph 67) is essential to the maintenance of order, security and control and to the prevention of escapes. It is true that there are special restrictions on contact with the outside world (in the form of the glass partition separating prisoners from visitors), but the frequency of visits is the same as in a normal remand centre. The arrangements for searches in the (T)EBI and EBI are essential to ensure the safety of staff. They have been evaluated in the past, as part of the six-monthly assessment of the EBI, and it has been decided that prisoners should not be searched more often than strictly necessary. This means that prisoners are not always searched on return to their cells, but only if they have been out of sight of the warder who let them out. Visits are organised in such a way as to permit visual, verbal and non-verbal contact while preventing direct physical contact. The special visiting arrangements are among the most important security measures to prevent escapes. If visits were more “open” and there were any chance of smuggling contraband into the prison, there would be little point in the existence of the EBI. 30. The CPT recommends that the Dutch authorities commission an independent study of the psychological state of current and former inmates of the extra security institution (paragraph 70) Response: The Ministry of Justice intends to investigate the performance of the EBI in early 1999. It will then consider instituting a further study of the impact of the EBI regime on the psychological state of inmates if the outcome of that investigation gives reason to do so.” The Ministry of Justice commissioned researchers of the University of Nijmegen to conduct a preliminary study of the EBI’s p