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Publication:[not yet received]
Title:Baybasin v. The Netherlands
Application No:13600/02
Respondent:The Netherlands
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment:06-07-2006
Conclusion:Violation of article 3
Not necessary to examine article 8
Question under article 41 reserved

(Press release)
Salah v. the Netherlands; Baybasin v. the Netherlands; Sylla v. the Netherlands
The applicants are: Mr Salah who is an Algerian national, born in 1964; Mr Baybasin who is a Turkish national, born in 1956; and Mr Sylla who is a French national, born in 1966. They are all currently serving prison sentences in the Netherlands.

On 1 October 1997 the applicant was placed in pre-trial detention on suspicion of involvement in an incident in which a couple in the Netherlands were robbed and murdered; the man was killed in front of the woman, who was also raped several times and eventually killed in Belgium. The criminal proceedings brought against the applicant - in which he stood accused of, among other things, rape, deprivation of liberty, murder, theft and robbery - ended on 5†September 2000 when the Supreme Court confirmed the judgment handed down by the 's-Hertogenbosch Court of Appeal on 22 April 1999 sentencing the applicant to twenty years' imprisonment. He was initially detained either in an ordinary remand centre or a National Segregation Unit in a Rotterdam detention facility. On 25 June 1998 it was decided to place him in a pre-trial detention unit of a maximum security institution (Extra Beveiligde Inrichting - "EBI"), which is part of the Nieuw Vosseveld Penitentiary Complex in Vught. His pre-trial detention in the EBI was extended several times. Once his conviction had become final, he was transferred to the EBI prison unit. On 12 May 2003 he was transferred to an ordinary prison in Maastricht.

On 27 March 1998 the applicant was arrested and placed in pre-trial detention on suspicion of having committed serious crimes within a violent criminal organisation in which he played a leading role. Criminal proceedings were brought against him and he was ultimately sentenced to life imprisonment. He was initially detained in an ordinary remand centre or the National Segregation Unit in a Rotterdam detention facility. On 26 June 1998 it was decided to place him in a pre-trial detention unit of the EBI in Vught. His stay in the EBI was extended several times. On 24 December 2003 he was transferred to another prison with a different regime. On 23 March 2004 a psychiatric report found that the applicant had developed various mental problems (chronic post-traumatic stress disorder, depression and a strong tendency towards somatisation) during his detention in the EBI.

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, he was convicted of extortion, attempted murder, murder and hostage-taking and sentenced to life imprisonment. The applicant was allowed to serve his sentence in the Netherlands, where he had lived since early childhood. He was initially detained in an ordinary remand centre or the National Segregation Unit in Rotterdam. On 21 December 2000 it was decided to place the applicant in the EBI in Vught. His stay in the EBI was extended several times. On 30 June 2003 he was transferred to a prison with a different regime.

All three applicants appealed unsuccessfully against each decision to extend their detention in the EBI. On 10 August 2004 Mr Baybasin brought a civil action in tort against the Netherlands before the Hague Regional Court, claiming compensation, among other things, for having been subjected to inhuman and degrading treatment on account of the conditions of his detention, including "(continuous) sensory deprivation and insufficient social contact (extensive social isolation), humiliating and unnecessary strip-searches, frisking, [and] being prohibited (inter alia) from communicating in Kurdish with, for instance, his mother and children". He cited the Court's judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands and Lorsť and others v. the Netherlands, the findings of the Council of Europe's European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and psychological reports on the effect of the EBI regime. Those proceedings are currently pending. On 11 July 2005 nine (former) EBI detainees including Mr Salah and Mr Sylla applied to the Regional Court for leave to join that action for compensation in relation to the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. To date, no decision has been taken on their request.

The applicants all complained about the weekly routine strip-searches to which they were subjected, relying on Article 3 of the Convention. The applicants in Baybasin and Salah also relied on Article 8 (right to respect for private and family life and correspondence).

Articles 3 and 8
The Court reiterated, as it had already found in its judgments Van der Ven and Lorsť and others, that the practice of performing routine weekly strip-searches, to which the applicants were subjected, was contrary to Article 3. There had accordingly been a violation of Article 3.

In the cases Salah and Baybasin the Court considered that it was not necessary to examine whether there had also been a violation of Article 8.

Articles 41 and 46
In all three cases the Court noted that the unusual situation had arisen whereby an applicant has brought proceedings in a domestic court aimed at securing a monetary award in respect of non-pecuniary damage for a violation of the Convention even before the Court itself had given judgment, notwithstanding the fact that in the light of the Court's earlier findings, the case could be qualified as a repetitive or "clone" case.

Regarding claims for damage arising from a violation of a Convention provision, the Court could not allow proceedings before it and proceedings in a domestic court aimed at precisely the same intended result to be actively pursued in parallel.

The Court observed that general measures at national level were undoubtedly called for in the execution of the Van der Ven and Lorsť and others judgments and that those measures should take into consideration the entire group of individuals affected by the practice found to be in breach of Article 3. Furthermore, such measures should be such as to remedy the Court's finding of a violation in respect of a general practice, so that the system established by the Convention was not compromised by a large number of repetitive applications stemming from the same cause. Such measures had therefore to include a mechanism for providing compensation. The Court's concern was to facilitate the rapid and effective correction of a defect identified in the national system of human-rights protection. Once such a defect had been identified, the national authorities had the task, subject to supervision by the Council of Europe's Committee of Ministers, of taking - retrospectively if necessary - the necessary measures of redress in accordance with the principle of subsidiarity under the Convention, so that the Court did not have to reiterate its finding of a violation in a series of comparable cases.

As to the Netherlands authorities' response to the judgments in the cases of Van der Ven and Lorsť and others, the Court noted that the practice of weekly routine strip-searches was abolished on 1 March 2003. In its partial decision on admissibility of 6 October 2005 in the case of Baybasin, the Court had also already examined and found the new practice as regards strip-searches in the EBI, as applied since 1 March 2003, to be compatible with Article 3. The Court further understood that, under domestic law, it was possible for detainees who had been strip searched to bring a civil action for compensation for non-pecuniary damage. It considered that those measures were likely to prevent further admissible applications to the Court stemming from the same cause.

The Court further noted that in two sets of civil proceedings, brought against the Netherlands by successful applicants in Strasbourg in whose cases the Court had examined and determined claims for non-pecuniary damage under Article 41, the domestic courts agreed to consider the applicants' claims for compensation for non-pecuniary damage arising out of the violation found by the Court, and in both cases made an award for compensation for non-pecuniary damage in addition to the award already made by the Court. Having regard to the fact that the applicants had proceedings pending before the Hague Regional Court seeking compensation for non-pecuniary damage, the Court considered that that aspect of their cases was not yet ready for decision and should be reserved pending a final domestic decision, due regard being had to the possibility that a friendly settlement might be reached.

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Last Modified: 13-01-2014 16:18:19 (Documentation SIM)