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THIRD
SECTION
CASE OF SYLLA v. THE NETHERLANDS
(Application
no. 14683/03)
JUDGMENT
(Just
satisfaction)
STRASBOURG
26
April 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 Sylla 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. Quesada, Section Registrar,
Having
deliberated in private on 29 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- 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 and/or
Netherlands national,
Béliard Sylla (“the applicant”), on 29 April 2003.
- 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 during his stay in the maximum security
institution (“EBI”) were contrary to his rights under
Article 3 of the Convention (Sylla v. the Netherlands, no.
14683/03, §§ 60-62, 6 July 2006).
- Under
Article 41 of the Convention the applicant sought just satisfaction
of an amount of 2,000 euros (EUR) for non-pecuniary damage and EUR
2,380 for legal costs incurred.
- 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 (ibid., §§ 84 and
90, and point 3 of the operative provisions).
- Meanwhile,
on 26 July 2006, the Regional Court (arrondissementsrechtbank)
of The Hague had rejected the request filed on 11 July 2005 by the
applicant and eight other (former) EBI detainees for leave to join
the civil action in tort (onrechtmatige daad) brought on
10 August 2004 against the Netherlands State by another former
EBI detainee (for further details, ibid. §§ 19-20).
- The
applicant and the Government each filed observations on the
application of Article 41 of the Convention, whereupon the State 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. Damage
- The
applicant submitted that he had been detained in the EBI for a period
of two and a half years during which he had been subjected to weekly
routine strip-searches, that – to date – he had to deal
with physical and mental problems as a result of his treatment in the
EBI, and that the considerable non-material damage thus suffered by
him could not be expressed in monetary terms. Pointing out that, in
its judgment in the case of Van der Ven v. the Netherlands (no.
50901/99, ECHR 2003 II), the Court had made an award for
non-pecuniary damage of 3,000 euros (EUR) to the applicant in that
case, who had been detained in the EBI for three and a half years,
the applicant claimed an amount of EUR 2,000 in compensation for
non-pecuniary damage.
- 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 about eight months. On that basis, the Government
considered that an amount of EUR 1,000 would be reasonable.
- The
Court considers 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 eight and a half months. Accordingly, an award under this
head is appropriate and the Court is of the opinion that the amount
proposed by the Government is fully adequate. It therefore awards the
applicant EUR 1,000 on an equitable basis under this head.
B. Costs and expenses
- Under
this head, the applicant claimed EUR 2,380, including 19% value-added
tax (VAT), which amount corresponded to ten 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 2,380 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 1,000 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.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 1,000 (one thousand euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
