CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 juillet 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sE208486F { font-family:Arial; color:#ff0000 } .s598389FF { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:18pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s491F5244 { font-family:Arial; font-style:italic; color:#ff0000 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s84D0D60A { width:8.36pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sD2857263 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s93EDF1FF { margin-top:18pt; margin-left:17.85pt; margin-bottom:30pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s63B454A9 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:0.05pt; text-align:justify; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCA92750 { margin-top:12pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD777C0A5 { margin-top:42pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF0957490 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8E011338 { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s11EE8375 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-align:justify } .s7409CDC0 { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sA0AF7C1A { width:39.27pt; display:inline-block } .s21D34249 { width:170.29pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt }     THIRD SECTION     CASE OF SYLLA v. THE NETHERLANDS     (Application no. 14683/03)     JUDGMENT       STRASBOURG   6 July 2006       FINAL     06/10/2006       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Sylla v. the Netherlands, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   L. Caflisch ,   Mr   C. Bîrsan ,   Mr   V. Zagrebelsky ,   Mrs   A. Gyulumyan ,   Mr   E. Myjer, judges , and Mr V. Berger , Section Registrar , Having deliberated in private on 15 June 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 14683/03) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Béliard Sylla (“the applicant”), on 29 April 2003. 2.     The applicant was represented by Ms J. Serrarens, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agent, Ms. J. Schukking, of the Netherlands Ministry of Foreign Affairs. 3.     On 6 October 2005 the Court declared the application partly inadmissible and decided to communicate to the Government the applicant’s complaint that the weekly routine strip-searches to which he had been subjected between 22 May 2002 and 4 February 2003 in the course of his stay in the maximum security institution ( Extra Beveiligde Inrichting – “EBI”) breached his rights under Article 3 of the Convention. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of this part of the application at the same time as its admissibility. It rejected the remainder of the applicant’s complaints. 4.     In accordance with Article 36 § 1 of the Convention and Rule 44   of the Rules of Court, the Registrar informed the French Government of their right to submit written comments. They did not avail themselves of this right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1966 and is currently serving a prison sentence in the Netherlands. A.     The circumstances of the applicant’s detention 1.     The applicant’s detention prior to 4 July 2000 6.     On 17 February 1998 the applicant was detained in the Netherlands on the basis of a request for his extradition by the authorities in Germany, where he was suspected of having committed a bank robbery and, during his subsequent flight and pursuit by the police, of having taken several hostages and having shot and killed one person. On 4 November 1998 he was extradited to Germany where, by judgment of 21 May 1999, the Duisburg Regional Court ( Landgericht ) convicted the applicant of extortion, attempted homicide, homicide and hostage-taking and sentenced him to life imprisonment. 7.     Pending the determination of a request under the Enforcement of [Foreign] Criminal Judgments (Transfer) Act ( Wet overdracht tenuitvoerlegging strafvonnissen – “WOTS”) for the applicant to be allowed to serve his sentence in the Netherlands, where he had lived since early childhood, the applicant was transferred to the Netherlands on 4 July 2000. 8.     On 3 October 2000, in accordance with the provisions of the WOTS, the Hague Regional Court ( arrondissementsrechtbank ) gave leave for the applicant’s sentence to be executed in the Netherlands and, considering that under the Netherlands sentencing rules a life sentence fitted the nature and seriousness of the offences, the circumstances in which they had been committed and the person and personal circumstances of the applicant, imposed a life sentence. The applicant filed an appeal on points of law against this ruling with the Supreme Court ( Hoge Raad ). 9.     On 26 June 2001 the Supreme Court allowed the applicant’s appeal on points of law against the ruling and quashed the decision of 3   October   2000. It held that the Regional Court had failed to examine whether or not, with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment, the applicant’s situation in the Netherlands would be less advantageous than in Germany. It remitted the applicant’s case to the Amsterdam Regional Court for a fresh decision. At the time the application was lodged with the Court, the proceedings before the Amsterdam Regional Court were still pending. 2.     The applicant’s detention in the Netherlands after 4 July 2000 10.     Following his transfer from Germany to the Netherlands on 4   July   2000, the applicant was initially detained in an ordinary remand centre ( huis van bewaring ) in Rotterdam. On 5 December 2000 a number of items (a whet stone attachment for a rotary grinder, knotted sheets, a rope and a metal hook) were found in his cell. The applicant was subsequently transferred to the National Segregation Unit ( Landelijke Afzonderingsafdeling ) in the Nieuw Vosseveld Penitentiary Complex in Vught. 11.     On 21 December 2000, on the advice of the special selection board of the maximum security institution ( Extra Beveiligde Inrichting – “EBI”), the Minister of Justice decided to place the applicant in the EBI, which is part of the Nieuw Vosseveld Penitentiary Complex. His detention in the EBI was reviewed and extended by the Minister every six months. The applicant unsuccessfully challenged each decision to extend before the Appeals Board ( beroepscommissie ) of the Central Council for the Administration of Criminal Justice ( Centrale Raad voor Strafrechtstoepassing ). On 1 April 2001 the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles ( Raad voor Strafrechtstoepassing en Jeugdbescherming ). 3.     The decision of 22 May 2002 extending the applicant’s stay in the EBI 12.     On 27 May 2002, as he had done in respect of the previous decisions to extend, the applicant filed an appeal with the Appeals Board against the decision of 22 May 2002 extending his stay in the EBI by six months. He argued, inter alia , that the EBI detention regime was in breach of Articles 3 and 8 of the Convention, that he was suffering from sarcoidosis and that the environment in the EBI had a very negative effect on his health. 13.     On 1   November 2002 the Appeals Board rejected his appeal. In so far as relevant, its decision reads as follows: “On the basis of Article 6 of the Regulation on the selection, placement and transfer of detainees ( Regeling selectie, plaatsing en overplaatsing van gedetineerden ) of 15   August 2000, which entered into force on 1 October 2000, detainees may be placed in the maximum security institution if they: a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes, or b. in the event of an escape, would pose an unacceptable risk to society, the risk of escape in itself being of lesser importance. ... The Appeals Board considers as follows: During an inspection of the [applicant’s] cell in the [Rotterdam] remand centre on 5   December 2000 a whet stone attachment [for an electrical device], a coil of ‘rope’ [made from] plaited strips of sheet and a long rope with a hook made from a broom handle, with an attached hook made from the aluminium handle of a floor sweeper, were found. In addition a crack was noted in the cell window. The seriousness and quite recent nature of these discoveries justify the finding that the [applicant] at present still poses an extreme risk of escape. In that connection [the Appeals Board] notes that the 1998 incidents mentioned by the [EBI] selection officer have not been taken into consideration in reaching this finding. Those incidents concern a knife found in January 1998 in a bus in which the [applicant] and three other detainees had been transported, some visitors of the applicant who in May 1998 remained in their car for a remarkably long time observing the detention facility, a fork going missing from the applicant’s cell and odd behaviour in the visitors’ room. Those incidents did not lead to the [applicant’s] being placed in the EBI at that time. Instead, the [applicant], after a stay in the National Segregation Unit, was transferred to an ordinary remand centre. It remains unknown whether the knife belonged to one of the detainees who had been travelling in the bus. In view of the very violent crimes the [applicant] is suspected of having committed and the subsequent pursuit in Germany and the Netherlands during which persons were taken hostage, the [applicant] – in the event of an escape – would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes. The Appeals Board, noting the above considerations, concludes that the [applicant] falls within the category [referred to in Article 6 (a) of the Regulation on the selection, placement and transfer of detainees]. As regards the [applicant’s] reliance on [the Convention], the Appeals Board considers that the EBI regime is not in violation of the prohibition set out in Article 3 of the Convention. Interference with the right to respect for private and family life set forth in Article 8 of the Convention is permitted as long as such interference is in accordance with the law and is necessary in a democratic society for, inter alia , the prevention of disorder and crime. On the basis of the documents obtained it appears that the examination [to establish whether the applicant suffers from sarcoidosis] is still ongoing. In these circumstances, the argument [based on this medical condition] cannot (for the time being) succeed. The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and that, weighing up all the interests involved, it cannot be considered as unreasonable or unjust.” 14.     No further appeal lay against this decision. 4.     The decision of 19 November 2002 extending the applicant’s stay in the EBI 15.     By decision of 19 November 2002 the applicant’s stay in the EBI was extended by a further period of six months. He again lodged an appeal with the Appeals Board in which he argued, inter alia , that the EBI regime was in breach of Articles 3 and 8 of the Convention, in particular as regards strip-searches in the EBI and the conditions governing visits. He submitted that the EBI regime was having adverse effects on his mental and physical health. 16.     On 25 March 2003 the Appeals Board dismissed the appeal. The relevant parts of the decision read as follows: “In its decision of 1 November 2002 the Appeals Board found that the [applicant] continued to pose an extreme risk of escape. ... The Appeals Board notes that, since then, there have been no signs indicating a possible escape by the [applicant]. Noting this, it is of the opinion that at present lesser weight is to be attached to the discovery in December 2000 and that it can no longer be said that the [applicant] poses an extreme danger of escape. However, in view of the very violent offences the [applicant] is suspected of having committed and the subsequent pursuit having taken place in Germany and the Netherlands, in which people were taken hostage and one person was killed, the [applicant], in the event of an escape, would pose an unacceptable risk to society. The Appeals Board, noting the above considerations, therefore concludes that the [applicant] falls within the category [referred to in Article 6 (b) of the Regulation on the selection, placement and transfer of detainees]. As regards the applicant’s arguments based on Articles 3 and 8 of the European Convention of Human Rights, the Appeals Board points out that, under the [1999] Prisons Act, it reviews decisions by the selection officer, in the instant case the decision to extend the [applicant’s] stay in the EBI. Consequently, it does not review the underlying detention regime as such and, therefore, the examination of the question as to whether or not the regime is in violation of Articles 3 and 8 of the Convention [falls outside the scope of the present appeal proceedings]. The Appeals Board considers, in any event, that – having regard to the case-law of the European Court of Human Rights – it cannot be held that the EBI regime as it currently exists should be regarded as being in breach of the Convention. It does not appear from the documents that the applicant’s medical condition represents a contra-indication for a longer stay in the EBI.   The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and, weighing up all the interests involved, concludes – albeit on a different ground – that it cannot be considered as unreasonable or unjust.” 17.     No further appeal lay against this decision. 18.     On 30 June 2003 the applicant was transferred from the EBI to another prison with a different regime. B.     Civil proceedings against the Netherlands State 19.     On 10 August 2004 another individual – who had been detained in the EBI between 26 June 1998 and 24 December 2003 – brought a civil action in tort ( onrechtmatige daad ) against the Netherlands State before the Hague Regional Court. One of the grounds on which he claimed payment of compensation in respect of non-pecuniary damage for unlawful acts for which he considered the Netherlands State to be liable was that, from his arrest in March 1998 until the end of December 2003, he had been subjected to inhuman and degrading treatment on account of the conditions of his detention, including having had to undergo humiliating and unnecessary strip-searches. He based this part of his claim on, inter alia, the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-II) and   Lorsé and Others v. the Netherlands (no. 52750/99), the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as set out in two reports (see paragraphs 47-48 below), and a report drawn up on 10 October 2003 by academic researchers on the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraph   24 below). 20.     On 11 July 2005 the applicant and eight other (former) EBI detainees applied to the Regional Court for leave to join the civil action against the Netherlands State. Their application related to the part of the claim concerning compensation for non-pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. These civil proceedings are currently still pending and, to date, no decision has been taken on the applicant’s request to join the pending civil action. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Weekly routine strip-searches in the EBI 21.     An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II) and in Baybaşın v. the Netherlands ((dec.), no. 13600/02, 6 October 2005). 22.     On 1 March 2003, in the light of the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven (cited above) and Lorsé and Others (cited above), the EBI house rules ( huisregels ) were amended, with the result that the practice of weekly routine strip-searches accompanying the weekly cell inspections was abandoned. Under the amended Article 6(4) of the EBI house rules, strip-searches could be carried out at random during or directly after a weekly cell inspection. 23.     As from 10 July 2003, pursuant to a ruling given on 7 July 2003 by the judge responsible for provisional measures ( voorzieningenrechter ) of the Hague Regional Court in summary injunction proceedings brought against the Netherlands State in June 2003 by thirteen EBI detainees, the random strip-searches were no longer linked to cell inspections and the EBI authorities from then on determined in the case of each individual detainee to what extent random strip ‑ searches were called for. The situation of each individual detainee is now discussed at the monthly EBI staff meeting on detainees. 24.     On 10 October 2003 researchers from the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraphs 48-49 below). It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, with particular reference to the speed of processing information and response inhibition. This was probably a result of the lack of stimuli in the detention situation. The report further concluded that the EBI regime caused more depression than a restricted community regime and that strip-searches were perceived as humiliating, constituting an extra burden for persons detained in the EBI. On the other hand, the EBI regime provided a better balance between rest and activity than a restricted community regime, as a result of which EBI detainees maintained a healthier life rhythm. In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress. B.     Civil actions for compensation in tort brought against the Netherlands State 1.     Judicial review by the civil courts of acts by public authorities 25.     Under Netherlands law, the civil courts have traditionally had jurisdiction to grant relief against the authorities, if and in so far as no other relief is available. Where a person bases a claim against the authorities on an allegation that the latter has committed a tort within the meaning of Article 6:162 of the Dutch Civil Code ( Burgerlijk Wetboek ) against him or her, the civil courts have jurisdiction in principle. Where the civil courts have jurisdiction, they can also act in summary injunction proceedings ( kort geding ) in which a plaintiff can, inter alia , request the civil court to issue an order against the authorities. An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff’s interests, or to general principles of proper administration ( algemene beginselen van behoorlijk bestuur ). An action in tort is subject to a limitation period of five years under Article 3:310 (1) of the Civil Code. 26.     However, as to the jurisdiction of the civil courts in cases where an administrative appeal lies, it is an established principle under Netherlands law that – given the closed system of legal remedies ( gesloten system van rechtsmiddelen ) in the Netherlands legal system – the civil court should refrain from examining the lawfulness of an administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure. On this topic, extensive case-law has been developed by the Netherlands Supreme Court ( Hoge Raad ) over the last decades, supported by several authorities, to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure, the civil courts have full jurisdiction to review the lawfulness of the administrative decision. On the other hand, a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings (see Supreme Court, 12 December 1986, Nederlandse Jurisprudentie (Netherlands Law Reports – “NJ”) 1987, no. 381; see also Oerlemans v. the Netherlands , judgment of 27 November 1991, Series A no. 219, §§ 21-35 and §§ 53-56). 27.     In a case in which it gave judgment on 3 December 1971, the Supreme Court examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the State arguing that the judge failed to act with due care in giving that ruling. The Supreme Court found that this was not possible, holding that it was solely for the legislature to decide in what cases a remedy was to be provided. It would be incompatible with this principle if an unsuccessful party were to have the possibility, via a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, and thus to obtain a renewed examination in another manner than that provided for by statute. It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles ( fundamentele rechtsbeginselen ) that the case could no longer be said to have been determined in a fair and impartial manner, and if there was no possibility of appeal nor had there ever been such a possibility, could the State be held liable for the effects of such a ruling in a civil action in tort (NJ 1972, no. 137; see also Supreme Court, 29 April 1994, NJ 1995, no. 727; Court of Appeal of The Hague, 16 July 1998 and 12 November 1998, NJ 1999, nos. 256 and 127; and Court of Appeal of The Hague, 7   April 2000 and 18 May 2000, Administrative Law Reports ( Jurisprudentie Bestuursrecht ) 2000, nos. 147 and 142). 28.     In a judgment given on 3 April 1987 concerning civil proceedings taken against the Netherlands State by an association of detainees who wished to challenge a special restricted-detention regime in a specific wing of the prison in The Hague, the Supreme Court held that, as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned (that is to say, the individual complaint procedure provided for in Article 51 et seq. of the Prison Act 1953 ( Beginselenwet Gevangeniswezen ) as in force at that time) and it was not in dispute that this remedy offered sufficient procedural safeguards, the plaintiff’s case had been correctly declared inadmissible, as the association had acted solely “in the context of promoting the interests of its members”, which were already safeguarded by the individual complaint procedure under Article 51 et seq. of the Prisons Act 1953 (NJ 1987, no. 744). 29.     In a judgment given on 1 February 1991 (NJ 1991, no. 413) in a civil action against the Netherlands State brought by a co ‑ accused of a successful applicant in Strasbourg ( Kostovski v. the Netherlands , judgment of 20   November 1989, Series A no. 166), the Supreme Court held: “It is embedded in the [Netherlands] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should, but must, be executed. It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity, via a claim [for damage arising from tort] against the State, to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [criminal] proceedings leading to the decision and to have [the subject matter] reviewed by the civil courts. Considering the obligations flowing from Articles 1, 5 and 13 [of the Convention] to secure the rights set out in Article 6 [of the Convention] and to provide an effective remedy in the event of a violation of those rights, an exception must be made to the above-mentioned rules should a ruling of the European Court [of Human Rights], which the criminal court judge could not take into account in his decision, prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article   6   §   1 [of the Convention]. When such an exceptional case occurs, immediate execution of the decision can no longer be permitted under the legal system, and the person convicted can institute interim injunction proceedings [before the civil court judge] seeking – depending on the circumstances – to have execution prohibited, suspended or limited. The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about, mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of the European Court [of Human Rights] indeed requires that the above-mentioned conclusion be reached.” In this case, the Supreme Court accepted the Court of Appeal’s finding against the plaintiff in view of the fact that, when the impugned ruling was given on 22   December 1988, the Court had not yet delivered its judgment in the Kostovski case. 2.     Civil actions brought by persons detained in the EBI 30.     A number of persons detained in the EBI have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime, or certain aspects of it, relaxed (for further details, see Lorsé and Others , cited above, §§ 40-42). 3.     Revision of final criminal convictions 31.     On 1 January 2003 an amendment to Article 457 of the Code of Criminal Procedure ( Wetboek van Strafvordering – “the CCP”) entered into force, governing possible means of obtaining revision ( herziening ) of final judgments. This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by the European Court of Human Rights that the criminal proceedings leading to that conviction had been in violation of the Convention. The relevant part of the amended text of Article 457 of the CCP reads as follows: “1. An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res iudicata can be lodged: ... 3 o . on the ground of a ruling of the European Court of Human Rights in which it has been established that [the Convention or one of its Protocols] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of Article 41 of [the Convention].” A request for revision can be lodged with the Supreme Court by the Procurator-General, the convicted person or the latter’s lawyer within a period of three months after the convicted person has become aware of the Court’s ruling referred to in Article 457 (1), subparagraph 3 (Article 458 of the CCP). 32.     If the Supreme Court accepts a request for revision based on Article 457 (1), subparagraph 3, it can either itself determine the criminal charges after reopening of the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 567 (2) of the CCP). 4.     Domestic proceedings brought by applicants after proceedings under the Convention in which the Court found a violation of the Convention and in which it examined and determined claims by the applicants for just satisfaction under Article 41 of the Convention 33.     In its judgment of 23 April 1997 in the case of Van Mechelen and Others v. the Netherlands ( Reports 1997-III), the Court found a violation of the Convention in that the criminal proceedings against the four applicants had not been conducted in compliance with the requirements of Article   6   §§   1 and 3 (d) of the Convention. In its judgment, it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants’ claim for non-pecuniary damage, considering that that part of the applicants’ claim for just satisfaction was not ready for decision. 34.     On 23 April 1997 the applicants in that case lodged a request for their immediate release from detention, failing which they would bring summary injunction proceedings against the State. On 25 April 1997 the Minister of Justice decided to grant them temporary release ( strafonderbreking ) and they were released from prison on the same day. 35.     The Court determined the applicants’ claims for non-pecuniary damage in its judgment of 30 October 1997 ( Van Mechelen and Others v. the Netherlands (Article 50), Reports of Judgments and Decisions 1997 ‑ VII), in which it noted that under domestic law it was not possible for the applicants to obtain a retrial [1] . The applicants had claimed 250 Netherlands guilders (NLG) for each day spent in detention, resulting in total claims of between NLG 746,000 and NLG 752,500. After having examined the respondent Government’s comments on those claims, the Court awarded one applicant NLG 30,000 (13,613.41 euros (EUR)) and each of the three other applicants NLG 25,000 (EUR 11,344.51) for non-pecuniary damage, and rejected the remainder of the applicants’ claims for non-pecuniary damage. 36.     On 19 February 1999 the Committee of Ministers of the Council of Europe, exercising its supervisory powers under the Convention as regards the execution of the Court’s judgments of 23 April 1997 and 30   October   1997, adopted a final resolution (Res DH(99)124) in the case. Having noted the measures taken by the Netherlands on the basis of the Court’s judgments, the Committee of Ministers concluded that the manner in which the Netherlands had executed both judgments was in compliance with their obligations under the Convention. 37.     On 29 April 1999 three of the four applicants brought a civil action in tort against the Netherlands State before the Hague Regional Court. They sought a declaratory ruling that the Netherlands State was liable for pecuniary and non-pecuniary damage arising out of unlawful administration of justice in violation of their rights under Article 6 §§ 1 and 3 (d). They sought payment of compensation corresponding to NLG 250 for each day spent in detention, less the compensation amount awarded by the Court. They based their claims on the argument that, given the Court’s findings in its judgment of 23 April 1997, it had been established that in the domestic criminal proceedings against them the Netherlands judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful. 38.     In its judgment of 5 July 2003, following appeal proceedings brought by the Netherlands State, the Hague Court of Appeal quashed the impugned judgment given on 17 January 2001 by the Regional Court, and for the time spent in detention (pre-trial and following conviction) awarded compensation for non-pecuniary damage to the first plaintiff in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court. It awarded the second plaintiff EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third plaintiff EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia , that: “The finding of the European Court [of Human Rights] that full redress ( volledige genoegdoening ) by means of a ‘retrial’ in the Netherlands is not possible, means that the European Court may award compensation on grounds of equity ( vergoeding naar billijkheid ), but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage ( volledige schadevergoeding ). The State’s argument, that [the three plaintiffs] requested compensation for damage for the first time before the European Court and not previously before the domestic judge, and that the European Court would have taken into account in its judgement the same claims for damages ( schadeposten ) as those now in issue in the present procedure, fails because no rule exists prohibiting the bringing of a claim before the Netherlands judge seeking compensation for damage, a part of which – namely an award in equity – has already been awarded in separate proceedings before the European Court.” 39.     In its judgment of 18 March 2005 on the appeal on points of law brought by the Netherlands State against the ruling of 5 July 2003, the Supreme Court held that the State had been correct in not challenging this part of the reasoning in the impugned judgment. 40.     On 4 February 2003 the Court delivered its judgment in the case of Lorsé and Others (cited above), finding a violation of Article 3 of the Convention in respect of the applicant Lorsé in that, during his stay in the EBI of more than six years, the applicant – who was already subjected to a great number of control measures – had been subjected to weekly routine strip-searches without convincing security reasons. It found no violation in respect of the other grievances raised by Mr Lorsé and the other applicants (his spouse and his children) under Articles 3, 8 and 13 of the Convention. As regards damages, the applicants requested the Court to award them a symbolic amount of NLG 1,000 (EUR 453.78), stating that no amount of money would be capable of compensating for the harm suffered by them. Taking the view that Mr Lorsé had sustained some non-material damage on account of the treatment which had been found contrary to Article 3, the Court awarded him for non ‑ pecuniary damage EUR   453.78, that is to say, the full amount claimed under that head. 41.     On 6 February 2003 Mr Lorsé brought summary injunction proceedings against the Netherlands State before the judge responsible for provisional measures in the Civil Law Division of the Hague Regional Court, seeking an order against the State to cease with immediate effect the execution of the fifteen-year prison sentence that had been imposed on him, to release him immediately from prison and not to seek payment of the fine of NLG 1,000,000 (EUR 453,780.22) that had also been imposed. 42.     On 12 February 2003 the judge responsible for provisional measures ruled on the applicant’s request. This decision, in its relevant part, reads: “3.1. The plaintiff has an urgent interest in his claim. The civil court judge – in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [of the case], as the plaintiff claims that the State has acted unlawfully toward him, inter alia by continuing his detention. 3.2. For the determination of the claim, it is a fact that the State has violated the applicant’s rights under Article 3... 3.3. Under Article 41 of [the Convention] the applicant is entitled to reparation ( rechtsherstel ) in respect of this irreparable violation of the Convention. If need be, he can assert that right before the courts. The State is deemed to be acting unlawfully towards him if no suitable form of redress is provided. 3.4. The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and, if so, whether those measures are suitable and appropriate in this case. 3.5. [The judge responsible for provisional measures rejects] the argument of the State that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the State to execute rulings of the criminal courts, militate against this form of redress. In this system, no provision has been made to date for (a suitable response to) a violation of the kind at issue in the instant case. There have been no prior similar cases, and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case-law. In principle, early release or non-execution of a fine imposed may constitute a suitable form of redress for a violation of Article 3 of the Convention of the kind in issue. This exception to the closed system of legal remedies in criminal cases is, to that extent, consistent with the Supreme Court’s approach in its judgment of 1 February 1991 (NJ   1991, 413). 3.6. The State has referred to the financial compensation awarded by the [European Court of Human Rights] and to the satisfaction which, in the case of the applicant, lies in the fact that his complaint was declared well-founded [by the European Court of Human Rights]. However, these two elements do not form a suitable, and certainly not a sufficient, form of redress for the plaintiff. Consequently, they do not stand in the way of the claims being allowed. The plaintiff can request the domestic judge to order that additional measures be taken. 3.7. In reply to a question, the State stated that it was possible, in this respect, to consider measures such as the plaintiff’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure. ... Again, these options do not form an obstacle to allowing the claims. The first option does not constitute sufficient redress in this case, while the option of a pardon corresponds to (a request for) a concession rather than the granting of a right, which is what is at issue here. 3.8. In these circumstances, the State should release the plaintiff earlier than June 2004 [when the plaintiff becomes eligible for early release] and waive the execution of the sentence in its entirety. Having regard to the nature of the violation of the Convention which is an established fact, a form of redress ( genoegdoening ) which relates to the applicant’s liberty is more suitable, and in any event warrants greater priority than waiving payment of the part of the fine still outstanding. 3.9. No fixed standard exists for ‘offsetting’ the remaining part of the plaintiff’s prison sentence. There are no pertinent reference points on the subject in the existing legislation. This means that the amount of the compensation must be determined on an equitable basis ( naar billijkheid ). The seriousness of the violation [of the Convention] justifies reduction of the sentence by a period equal to 10% of the number of days for which the applicant was subjected to the regime in the EBI... This amounts to a reduction of 230 days (round figure)... 3.10. On the basis of this solution, the plaintiff’s claim should be rejected. Indeed, the plaintiff has no urgent interest in a provisional measure which will only take effect after about nine months [when the applicant has served his mitigated sentence]... It is assumed that the State (the Minister of Justice) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here. If need be, the plaintiff can apply again in due course to the judge responsible for provisional measures. 3.11. Each of the parties can in fact be deemed to have been ruled against.” 43.     Both parties agreed to lodge a direct “leapfrog” appeal on points of law ( sprongcassatie ) with the Supreme Court, which dismissed both appeals on 31 October 2003. Although it agreed with the Netherlands State that the judge responsible for provisional measures had incorrectly assumed that Article 41 of the Convention gave Mr Lorsé an (independent) right to redress which, if need be, could be asserted before the domestic judge, it held that this could not lead to the setting-aside of the judgment as, pursuant to the Convention, the State was obliged to provide redress. However, relying on the Court’s reasoning in the cases of Papamichalopoulos and Others v. Greece ((Article 50), judgment of 31 October 1995, Series A no. 330 ‑ B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000 ‑ VIII), the Supreme Court considered that, although the State was in principle free to determine the manner in which redress was to be provided, that freedom did not mean that the domestic judge was unable to take a decision on that point, but simply that a suitable form of redress was to be sought within the domestic legal order. As the Netherlands State had acted unlawfully towards Mr Lorsé in so far as his rights under Article 3 had been violated, as found by the Court, Mr Lorsé was entitled to claim compensation from the State, which would be acting unlawfully if it failed to provide a suitable form of redress. The Supreme Court accepted that such compensation could be granted in a manner other than the payment of a sum of money. In cases such as the present one, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of cessation of the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of Mr Lorsé. As regards the argument raised by the State that the closed system of legal remedies and the corresponding obligation for the State to execute rulings of the criminal courts precluded the form of redress claimed by Mr Lorsé, the Supreme Court – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [as in the case of Van Mechelen and Others ] and a situation in which the violation found was unrelated to such a conviction or proceedings [as in the case of Mr Lorsé] – held that this difference did not mean that the judge responsible for provisional measures had based point 3.5 of the impugned ruling on an incorrect interpretation of the law. Given the particular circumstances of the case, the violation of Article 3 found by the Court and the fact that there was no specific statutory remedy for determining redress for such a violation, the Supreme Court concluded that in that case an exception to the closed system of legal remedies could be accepted. It further found that the judge responsible for provisional measures had given sufficient reasons as to the determination of the compensation awarded to Mr Lorsé. 44.   &