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THIRD
SECTION
CASE OF BAYBAŞİN v. THE NETHERLANDS
(Application
no. 13600/02)
JUDGMENT
(Just
satisfaction)
STRASBOURG
7
June 2007
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 Baybaşin v. the Netherlands,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David
Thór Björgvinsson,
Mrs I. Ziemele, judges,
and
Mr S. Naismith, Deputy Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13600/02) 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 Turkish national,
Hüseyin Baybaşin (“the applicant”), on
28 February 2002.
- In
a judgment delivered on 6 July 2006 (“the principal judgment”),
the Court held that the weekly routine strip-searches to which the
applicant had been subjected between 16 July 2001 and 21 November
2002 in the course of his stay in the maximum security institution
(“EBI”) were contrary to his rights under Article 3 of
the Convention (Baybaşin v. the Netherlands,
no. 13600/02, §§ 59-61, 6 July 2006).
- Under
Article 41 of the Convention the applicant sought just satisfaction
for non-pecuniary damage, leaving the determination of the award
under this head to the discretion of the Court. He did, however,
consider that it should be much higher than the amount of 3,000 euros
(EUR) awarded by the Court in the similar case of Van der Ven
v. the Netherlands, (no. 50901/99, §
76, ECHR 2003 II) as compensation for non pecuniary damage
based on the standard used by the Court in that case would not
accurately reflect the extent of the psychological distress he had
suffered in the EBI. The applicant further sought an award of
EUR 2,380 for legal costs and expenses incurred by him.
- Since
the question of the application of Article 41 of the Convention was
not ready for decision, the Court reserved it and invited the
Government and the applicant to submit, within three months, their
written observations on that issue and, in particular, to notify the
Court of any agreement they might reach (Baybaşin v. the
Netherlands, cited above, §§ 84 and 90, and point
4 of the operative provisions).
- An
attempt to reach a friend settlement having failed, the applicant and
the Government each filed observations on the application of Article
41 of the Convention whereupon the Government but not the applicant
filed comments in reply.
THE LAW
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Costs and expenses
- Under
this head, the applicant claimed EUR 2,856, including 19% value-added
tax (VAT), which amount corresponded to twelve hours' work by his
lawyer at an hourly rate of EUR 200 and only relating to the
proceedings under the Convention. Although the applicant had been
granted legal aid for those proceedings under the domestic legal aid
scheme, his lawyer requested the Court to award the total amount of
EUR 2,856 as this sum corresponded to a reasonable fee which the
lawyer would have charged the applicant had he not been in receipt of
free legal aid, whereas the legal aid allowance under the domestic
scheme was likely to be about EUR 1,500 less and the domestic legal
aid (offer) could still be turned down by the applicant or his
lawyer.
- The
Government, noting that the applicant had been granted legal aid
under the Netherlands domestic legal aid scheme for the proceedings
before the Court, were of the opinion that the costs incurred during
these proceedings were already adequately covered. Relying on the
Court's considerations in respect of costs and expenses claimed in
the case of Visser v. the Netherlands (no. 26668/95, §
59, 14 February 2002), they considered that there is no need to pay
costs incurred in proceedings under the Convention if an applicant
qualifies for subsidised legal aid under a domestic legal aid scheme.
- Reiterating
its considerations and decision in respect of the claim for costs and
expenses filed in the case of Van der Ven v. the Netherlands,
(cited above, § 79) in which case the applicant made the
same request as the applicant in the instant case, the Court finds no
reason to take a different approach in the case at hand.
Consequently, as the applicant is entitled to legal aid in respect of
the present proceedings under the Netherlands domestic legal aid
system, the Court is of the opinion that there is no ground for
making an award under this head.
B. Damage
- The
applicant submitted that he had been detained in the EBI for a period
of five and a half years during which he had been subjected to weekly
routine strip-searches and that, to date, he had to deal with
physical and mental problems as a result of his treatment in the EBI.
In this connection, the applicant referred to the findings of a
psychiatrist who had concluded that the applicant had developed a
post-traumatic stress disorder and a depressive disorder during and
as a result of his treatment in the EBI.
- The
applicant further submitted that the question of the application of
Article 41 did not yet seem ready for decision, as the proceedings on
the civil action in tort he had brought against the Netherlands State
before the Regional Court (arrondissementsrechtbank) of The
Hague were still pending (see Baybaşin, cited above, §
19).
- The
Government submitted that an award for compensation for non pecuniary
damage should be proportionate to the period of the applicant's
detention in the EBI falling within the scope of the application,
namely a period of sixteen months. On that basis, the Government
considered that an amount of EUR 2,000 would be reasonable.
- The
Court accepts that the applicant suffered some non-pecuniary damage
as a result of the treatment to which he was subjected in the EBI
during the period falling within the scope of the application, namely
a period of slightly more than sixteen months. However, the Court
notes that – when it adopted the principal judgment in the case
– the applicant had already taken domestic civil proceedings in
tort against the Netherlands State in which he was claiming inter
alia compensation for non-pecuniary damage suffered on account of
having been subjected to weekly routine strip searches in the
EBI which treatment the Court, in the principal judgment, found in
violation of Article 3 of the Convention. The Court further notes
that these domestic proceedings are currently still pending at a
first instance stage.
- The
Court reiterates its considerations set out in §§ 67-84 of
the principal judgment and has found no reasons for holding that the
domestic civil action taken by the applicant would stand no
reasonable chance of success in so far as, in these proceedings, he
is seeking compensation of non pecuniary damage in respect of
the violation of his rights under Article 3 of the Convention as
found by the Court in the principal judgment.
- In
the light of Article 37 § 1 (c) of the Convention the Court
finds that, in these circumstances, it is not justified to continue
its examination of the question of the application of Article 41 of
the Convention as regards the applicant's claim for compensation of
non-pecuniary damage which would imply adjourning it pending a final
domestic decision on this matter. In accordance with Article 37 §
1 in fine of the Convention, the Court finds no special
circumstances regarding respect for human rights as defined in the
Convention which require the continuation of the examination of this
part of the application.
- Consequently,
this part of the application should be struck out of the list. In
reaching this conclusion, the Court has taken into account its
competence under Article 37 § 2 of the Convention to restore the
case to its list of cases if it considers that the circumstances
justify such a course.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses unanimously the applicant's
claim for costs and expenses;
- Decides to strike the remainder of the
application out of its list of cases.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Boštjan M. Zupančič
Deputy
Registrar President
