CONSEIL COUNCIL

DE L’EUROPE OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME

EUROPEAN COURT OF HUMAN RIGHTS

FORMER FIRST SECTION

CASE OF LORSÉ AND OTHERS v. THE NETHERLANDS

(Application no. 52750/99)

JUDGMENT

STRASBOURG

4 February 2003

FINAL

04/05/2003

This judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 1

In the case of Lorsé And Others v. the Netherlands,

The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mrs E. PALM, President,
Mrs W. THOMASSEN,
Mr GAUKUR JÖRUNDSSON,
Mr R. TÜRMEN,
Mr C. BÎRSAN,
Mr J. CASADEVALL,
Mr R. MARUSTE, judges,
and Mr M. O’BOYLE, Section Registrar,
Having deliberated in private on 15 January 2003,
Delivers the following judgment, which was adopted on the
last-mentioned date:

PROCEDURE
1. The case originated in an application (no. 52750/99) 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 nine Netherlands nationals, Jacobus Lorsé, Everdina
Lorsé-Quint, Pieternella Johanna Lorsé, Paula Martina Lorsé, Jacobus Lorsé
(Junior), Maria Petronella van Esch, Johanna Maria Lorsé, Neeltje Maria
Lorsé and Hubertus Josephus Lorsé (“the applicants”), on
19 November 1999.
2. The applicants, who had been granted legal aid, were represented by
Mr A.A. Franken, a lawyer practising in Amsterdam. The Netherlands
Government (“the Government”) were represented by their Agent,
Mr R.A.A. Böcker of the Ministry of Foreign Affairs.
3. The applicants alleged that the detention regime to which the first
applicant was subjected in a maximum security prison constituted inhuman
and/or degrading treatment and infringed their right to respect for their
private and family life, and that they did not have an effective remedy in
respect of their complaint of inhuman treatment.
4. The application was allocated to the First Section of the Court
(Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that
would consider the case (Article 27 § 1 of the Convention) was constituted
as provided in Rule 26 § 1 of the Rules of Court.
5. By a decision of 28 August 2001, following a hearing on admissibility
and the merits (Rule 54 § 4), the Court declared the application partly
admissible.
2 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

6. The applicants and the Government each filed observations on the

merits (Rule 59 § 1). The applicants replied in writing to the Government’s
observations. These latter submissions were accepted for inclusion in the
case file by decision of the President of the Chamber (Rule 38 § 1).
7. The Government invited the members of the First Section to pay a
working visit to the maximum security prison. On 21 February 2002 the
Court decided that the discharging of its functions did not require such a
visit.
8. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 § 1), but this case remained with the Chamber constituted
within former Section I.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. The first applicant is Mr Jacobus Lorsé, who was born in 1945. The
second applicant, Mrs 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 Dordrecht.
The other applicants are all resident in Maastricht, with the exception of the
ninth applicant who resides in Rotterdam.
10. 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).
11. 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
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 3

than July 2004. It would appear that he has been sentenced in Belgium to a
six-year prison sentence for drugs-related crimes but that the proceedings
there are still pending.
12. 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. 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.
13. 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 (ambtsberichten) 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.
14. 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 Extra Security
Institution (Extra Beveiligde Inrichting, “EBI”).
15. On a number of occasions Mr Lorsé made use of legal remedies to
protest against his placement, and the prolongation of that placement, in the
EBI. On 1 February 1999, for example, Mr Lorsé, through his counsel,
lodged an appeal to the Appeals Board (beroepscommissie) of the Central
Council for the Administration of Criminal Justice (Centrale Raad voor
Strafrechtstoepassing) against the decision of 21 January 1999 to prolong
his placement. 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).
16. The Appeals Board gave its decision on 31 May 1999. It noted that
there had been no new information since May 1996 which would tend to
justify the fear that Mr Lorsé might attempt to escape. Moreover, the
4 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

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.
17. On 15 June 1999 a placement officer of the Penitentiary Selection
Centre (Penitentiair Selectie Centrum – “PSC”) recommended that
Mr Lorsé should remain in the EBI. Mr Lorsé’s situation was described as
“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 relatively 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).
18. 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 help from 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 Mr Lorsé 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.
19. Mr Lorsé’s detention in the EBI was again extended on
24 December 1999, since official information of June and November 1999
indicated that he still posed an increased security risk. In its decision of
16 March 2000 on Mr Lorsé’s appeal against the prolongation of his
placement in the EBI, the Appeals Board noted his arguments to the effect
that his protracted stay in the EBI had negative effects not only on him but
also on his relatives, and that he had referred to the present complaint
lodged with the Court. Mr Lorsé had also submitted the report of the
psychiatrist Dr S. (see paragraph 26 below). The Appeals Board rejected the
complaint, finding that in the absence of facts or circumstances militating
against a continuation of Mr Lorsé’s detention in the EBI, the decision to
prolong his placement was lawful and that, weighing up all the interests
involved, it could not be considered unreasonable or unjust. The Appeals
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 5

Board noted that it had taken into account the arguments raised by Mr Lorsé
relating to his psychological condition.
20. By a letter dated 10 July 2000 the Minister of Justice informed
Mr Lorsé of a further prolongation of his detention in the EBI. Reference
was made to inter alia 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.
21. On 18 July 2000 Mr Lorsé 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 further
submitting 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.
22. 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 to prolong
Mr Lorsé’s detention in the EBI, and not the regime pertaining in that
institution as such. For that reason, the Appeals Board declined to rule on
the complaint under Article 3 of the Convention. As to the complaint of a
violation of Article 8 of the Convention, the Appeals Board considered that
the second paragraph of that provision allowed for an interference with the
right to respect for private and family life as long as such interference was
in accordance with the law and was necessary in a democratic society in the
interest of, inter alia, the prevention of disorder and crime. The Appeals
Board concluded once more that in the absence of facts or circumstances
militating against a continuation of Mr Lorsé’s detention in the EBI, the
decision to prolong his placement was lawful and that, weighing up all the
interests involved, it could not be considered unreasonable or unjust.
23. Besides lodging appeals with the Appeals Board to contest the
extension of his maximum security detention, Mr Lorsé, while still detained
on remand, also applied for an interim injunction (kort geding) against the
State on two occasions, arguing that his placement in the EBI was unlawful.
Both applications were rejected, in 1996 and 1998 respectively.
24. 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.
25. Mr Lorsé’s psychological condition was examined on a number of
occasions. On 14 December 1999 Mr V., the head of the Psychological
Department of the PSC, submitted an advisory opinion to the Minister of
6 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

Justice concerning the prolongation of Mr Lorsé’s placement at the EBI. His

report of that date stated:
“...

The PSC has previously reported on [Mr Lorsé] on 15 June 1999 ... At that time it
was reported that [Mr Lorsé], who has been detained in the EBI since
27 September 1994, was finding it increasingly difficult to cope with his stay there.
[Mr Lorsé] appeared to have reversed his day-night rhythm. [Mr Lorsé] had no
contacts with the prison’s medical and mental health care team. It was reported that,
all in all, a picture was beginning to emerge of a man for whom the stay in the EBI
was becoming increasingly difficult to bear, with adverse consequences for his
functioning. It was advised that an attempt be made to restore contacts with the
medical and health care team so that the reaction to a renewed perspective of a further
long stay in the EBI might be monitored.

The report of the last six months shows ups and downs with more pronounced and
more frequent mood swings, especially lately. Apart from the long duration of the stay
in the EBI and the lack of contact with the family, the changes in the composition of
the [EBI] population also... appear to play a role.

All in all, I am of the opinion that the stay in the EBI is increasingly difficult to bear
for Mr Lorsé, and, barring concrete evidence regarding the likelihood of an escape
attempt, that a transfer is to be preferred on psychosocial grounds alone.”
26. On 14 December 1999 Mr Lorsé was seen, in the EBI, by an
independent psychiatrist, Dr S., at the request of his lawyer. Dr S. reported
as follows:
“I am unable to make a definite psychiatric diagnosis from a single psychiatric
examination; in particular, there are insufficient indications to diagnose a depression.

There are, nevertheless, a number of indications suggesting that [Mr Lorsé] is

suffering under the protracted isolation; he thus describes memory and orientation
disorders as well as signs of depersonalisation which clearly point to that being the
case.

[Mr Lorsé] is a man ... who has learned to survive through toughness. It is debatable
whether the psychological carapace he has built up over the years will be capable of
withstanding the current extreme isolation, and it is, in my opinion, important
therefore that a close eye be kept on him. Should he decompensate in a depressive
sense – the risk of which is certainly not hypothetical – this will not be without
danger: in such a situation a risk of suicidal actions is not to be underestimated.”
27. On 20 March 2001, some two months after his transfer from the EBI,
Mr Lorsé was seen by a different independent psychiatrist, Dr C., who had
been requested by his lawyer to examine the psychological consequences of
Mr Lorsé’s stay in the EBI. According to Dr C., Mr Lorsé was suffering
from a moderately serious (matig ernstig) depression with endogenous
features, moderately serious panic attacks and a conditioned avoidance
response. Although Mr Lorsé was not found to be suicidal, he was troubled
by nightmares relating mainly to suicide. He was also irritable and suffered
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 7

regular panic attacks. One of the reasons for this psychiatric condition was
the fact that contact with his wife and children was seriously disrupted. He
was incapable of working, either alone or with others, and his activity level
was very much reduced. Dr C. expressed the opinion that there was a causal
link between the outward symptoms of the depression as well as the
psychiatric disorders he found and Mr Lorsé’s long period of detention in
the EBI. These disorders 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.
28. After Dr C.’s report had been transmitted to the Government, they
requested Dr D., a forensic psychiatrist employed by the Forensic
Psychiatric Service of the Ministry of Justice, to examine Mr Lorsé in order
to find out whether he was indeed suffering from the psychiatric disorders
described by Dr C. and, if so, whether these disorders were related to his
detention in the EBI. Dr D. saw Mr Lorsé twice, in June and July 2001, and
she noted in her report of 9 July 2001 that during these meetings he had not
displayed any symptoms of a disturbance of a depressive nature. She replied
to the questions put by the Government that at the time of her examination,
Mr Lorsé was not suffering from a “moderately serious depression”.
Although immediately after his transfer from the EBI he had had mild
symptoms of an unspecified adjustment disorder, this was now in complete
remission. Dr D. acknowledged that this disorder was probably directly
related to his prolonged detention in the EBI, but noted that most people
who were detained in semi-isolation or maximum security facilities reacted
in a similar manner. In Dr D.’s opinion, Mr Lorsé would have presented a
similar profile if he had been detained in any other closed penal institution
with rules similar to those in the EBI or semi-isolation facilities.
29. 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.
30. 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 to
fifth applicants). Superficially, 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
8 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

be used against her husband. In the report, the family was 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.
31. 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.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The decision to detain a person in a particular institution

32. 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 1999 Prisons Act – Penitentiaire
beginselenwet).
The actual selection is carried out by a Ministry of Justice placement
officer (Article 15 §§ 1 and 3 of the 1999 Prisons Act).
33. 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.
34. 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/DJI of 22 August 1997). In principle, placements in
the EBI are made from an ordinary custodial institution. The governor of the
custodial institution submits a proposal to the placement officer, giving
reasons why the persons concerned should be detained in the EBI. Before
submitting this proposal, the governor requests information about the person
concerned from the secretary of a special EBI selection board, which
comprises a representative of the Public Prosecutions Service, a
psychologist and a representative of the board of governors of the Nieuw
Vosseveld Penitentiary Complex in Vught. The secretary having obtained
such information from various sources, the governor then discusses his
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 9

proposal with the detainee. Finally, he completes his report by adding the
detainee’s comments and any objections he may have, and submits his
proposal to the selection board.
35. The placement officer considers the proposal, consults with the
governor and interviews the detainee. He then draws up his own report on
the governor’s proposal and submits it to the selection board secretary. If
the detainee is serving a long sentence or if a psychologist considers it
necessary, it may be forwarded to the Penitentiary Selection Centre, which
is responsible for issuing recommendations on the psychological aspects of
the enforcement of custodial sentences and orders. The PSC is always
consulted about first placements. The case is subsequently discussed by the
selection board, chaired by the placement officer.
36. The decision to detain a prisoner in an EBI is reviewed every six
months. The EBI governor must submit a behavioural report
(gedragsrapportage) on the detainee at corresponding intervals. Prior to the
decision to prolong the placement in the EBI, the detainee is interviewed by
the placement officer. In all other respects the procedure is the same as the
placement procedure.
Decisions as referred to above are nominally those of the Minister of
Justice.

B. The EBI regime

37. The 1999 Prisons Act and the Prisons Order (Penitentiaire
maatregel) apply in full to detainees in the EBI, giving them the same rights
and obligations as detainees in ordinary institutions. A number of security
measures is built into the regime, and detainees are under surveillance at all
times outside their cells. These special arrangements are set out in the EBI
house rules (Regeling model huisregels EBI, 12 October 1998,
715635/98/DJ, Government Gazette 1998, no. 233). The following are
features of the EBI regime:
– all contacts with the outside world are screened; all correspondence
and telephone calls (twice a week for ten minutes) are screened except for
those with privileged contacts; detainees must be separated from their
visitors (one visit a week for one hour) by a transparent partition (“closed
visits”); members of their immediate families, spouses and partners may
visit once a month without such partition (“open visits”), although physical
contact is restricted to a handshake on arrival and departure; visitors must
submit to a search of their clothes (frisking) before an “open” visit;
– only one detainee at a time may come into contact with staff, and at
least two staff members must be present; for this purpose, special corridors
have been built leading to areas where group activities take place; these
areas are under camera surveillance or supervised by staff who are
physically separated from inmates by a partition;
10 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

– detainees may take part in sports at least twice a week; they may spend
at least one hour a day outdoors and may also use the exercise yard at fixed
times during recreation periods in their programme; they are entitled to
spend at least six hours a week engaging in group recreation;
– no more than four people at a time may take part in group activities;
– detainees who leave the premises must be handcuffed, for instance
when going to court or for hospital treatment; they may also be handcuffed
inside the EBI, in areas where they might have access to objects with which
they could injure staff or take hostages, for example when visiting the
hairdresser’s or the clinic, or when being escorted to “open” visits;
– cells are periodically (in practice: weekly) subjected to a more
thorough search; at the same time or immediately afterwards the detainees
are frisked and strip-searched; the strip-search, which involves an external
viewing of the body’s orifices and crevices, including an anal inspection, is
carried out in a closed room and, whenever possible, by a person of the
detainee’s own gender;
– frisking and strip-searching also takes place
▪ on arrival in and release from the EBI
▪ before and after “open” visits
▪ after visits to the clinic, the dentist’s surgery or the hairdresser’s;
– the EBI governor, or in urgent cases an EBI officer or employee, may
decide that the detainee must be subjected to an internal body search if this
is considered necessary to prevent the maintenance of good order or safety
within the prison being endangered, or to protect the detainee’s own health;
an internal body search is usually carried out by a doctor but he may also
instruct a nurse to carry out the search.

C. Legal remedies

38. If a prisoner wishes to contest the decision either to place him in the
EBI or to prolong such placement, he could, at the time relevant to the
present case, file an appeal to the three-member Appeals Board of the
Central Council for the Administration of Criminal Justice (Article 73 § 1 of
the 1999 Prisons Act). The Central Council, which was superseded by the
Council for the Administration of Criminal Justice and Protection of
Juveniles on 1 April 2001, was constituted of members appointed and
dismissed by Royal Decree. Its duties included 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 sub 1 of the Prisons Act 1953 – Beginselenwet
gevangeniswezen). It also had other duties, including the hearing of appeals.
39. If the Appeals Board considered the appeal well-founded, it could
instruct the Minister to make a new decision in which its own decision was
to be taken into account, for which it could set a time-limit. It could also
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 11

rule that its decision was 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 1999 Prisons Act).
40. 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.
However, in cases decided under domestic law it has been held that where
pursuant to prison law an administrative remedy, with sufficient procedural
safeguards, is available against a particular decision, there is no room for an
injunction decision that is in conflict with a decision made in the
administrative proceedings (see, mutatis mutandis, the Supreme Court’s
judgment of 25 June 1982, Nederlandse Jurisprudentie (Netherlands Law
Reports) 1983, no. 194; and the judgment of the Court of Appeal
(Gerechtshof) 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.
41. In interim injunction proceedings instituted by an EBI detainee, his
wife and one of his children, in which one of the points at issue was the EBI
governor’s refusal to allow the detainee to conduct telephone conversations
in Kurdish, counsel for the State had argued on appeal that the request for
an interim injunction should be declared inadmissible, since the detainee’s
complaint had already been dealt with by the Central Council. However, by
judgment of 18 March 1999, the Court of Appeal of The Hague declared the
appeal admissible because, the Central Council having ruled on the
detainee’s complaint by then, there was no longer an administrative
procedure pending which had to be disposed of on penalty of his civil
proceedings being declared inadmissible. The Court of Appeal then
proceeded to reject the request for an interim injunction since the Central
Council in its decision had considered the decision of the EBI governor
lawful and the proceedings before the Central Council were deemed to have
sufficient procedural safeguards (case no. 98/1349 KG, Kort Geding
(“Interim Injunction Law Reports”) 1999, no. 173).
42. In a decision of 11 January 1994 (case no. 93/1142, Sancties
(“Sanctions”) 1994, Issue 1, no. 5), in proceedings lodged by 13 detainees
who argued that the maximum security regime was in violation of inter alia
Article 3 of the Convention, the President of the Hague Regional Court
ordered the State to amend the regime in such a way that detainees be given
12 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

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.

III. THE FINDINGS OF THE EUROPEAN COMMITTEE FOR THE

PREVENTION OF TORTURE AND INHUMAN OR DEGRADING
TREATMENT OR PUNISHMENT

43. The CPT visited the Netherlands from 17 until 27 November 1997.
Its findings with regard to the (T)EBI (Tijdelijke Extra Beveiligde Inrichting
– Temporary Extra Security Institution) 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.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 13

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.’
14 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

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 a 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.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 15

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.
16 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

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.

Finally, 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.”
44. 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.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 17

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.”
45. The Ministry of Justice commissioned researchers of the University
of Nijmegen to conduct a preliminary study of the EBI’s policy on care for
the mental well-being of detainees and of the feasibility of a main study of
the psychological impact of a high security regime on the mental well-being
of (former) inmates. On 17 April 2000 a report entitled “Care in and around
the Maximum Security Prison” (Zorg in en om de Extra Beveiligde
Inrichting) was issued by the researchers. It concluded that the concern
expressed in policy documents for the mental well-being of detainees held
in maximum security conditions was indeed evident in the day-to-day
running of the EBI in that EBI personnel proved aware of the tension
between security and humanity, and endeavoured to reduce this tension. It
was further concluded in the report that a study of the psychological impact
of a high security regime was feasible. The researchers nevertheless
emphasised that they had examined neither the quality of the care for the
18 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

mental well-being of the EBI detainees, the actual psychological condition

of the detainees nor the effects which the regime was having on them.
46. The Minister of Justice has commissioned a follow-up study from
the same researchers, involving monitoring day-night rhythm stress and
other factors among maximum security detainees and a control group of
detainees in semi-isolation. This study is set to be completed by Summer
2003.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

47. The applicants alleged that Mr Lorsé’s detention in the EBI

constituted a breach of Article 3 of the Convention, both in respect of
Mr Lorsé and in respect of the other relatives. Article 3 provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”

A. Alleged violation of Article 3 of the Convention in respect of

Mr Lorsé

1. Submissions of those appearing before the Court

a. The applicants
48. The applicants submitted that in the light of the very critical
comments expressed by the CPT on various aspects of the EBI regime there
could be no doubt that this regime must be regarded as inhuman.
49. To illustrate that the CPT’s findings also specifically applied to
Mr Lorsé, the applicants pointed to a number of aspects concerning his
individual situation. They referred in the first place to the fact that Mr Lorsé
was the detainee who had been subjected to the EBI regime for far and away
the longest, namely for more than six years, without that regime having
been relaxed during that time. Second, the reports of the doctors S. and C.,
as well as the internal EBI-reports, all concluded that the EBI regime did
indeed have significant harmful consequences for the psychological
condition of Mr Lorsé.
50. The applicants had strong objections to the findings formulated by
Dr D. and to the way she had reached her conclusions, which contradicted
those contained in the aforementioned reports. Dr D.’s view that Mr Lorsé
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 19

would have presented the same profile had he been detained in a prison
facility with a similar regime was unsustainable in the light of the
Government’s submissions at the admissibility stage of the present
proceedings to the effect that the EBI regime could not be compared to that
of any other penal institution. The fact that there were no studies of the
effects of a long term stay in the EBI other than the reports relied on by the
applicants and certainly no study comparing the effects of such a stay in the
EBI with a stay in an ordinary prison facility further invalidated Dr D.’s
findings in the eyes of the applicants.
51. Two aspects of the regime had been particularly onerous for
Mr Lorsé without being strictly necessary from a security point of view.
Firstly, Mr Lorsé had been subjected to strip-searches – including anal
inspections – on a weekly basis, and often more frequently, for more than
six years and, when carried out at the same time as the weekly cell-
inspection, regardless of whether he had had any contacts with the outside
world. The strip-search involved his having to undress completely and to
have all his bodily orifices inspected and explored, which required him also
to adopt degrading positions like bending over while naked. During the time
Mr Lorsé spent in the EBI, not a single indication was found to warrant the
assumption that he had in any way whatsoever had or sought possession of
objects which could compromise security within the institution.
Secondly, as a result of the visiting regulations Mr Lorsé had been denied
normal human contact, including physical contact, with his immediate
family. The applicants submitted that the Government had failed to strike a
fair balance between security considerations and their justified wish for
physical contact, given that there had never been any concrete, tangible
indications that Mr Lorsé had any plans to escape. Moreover, in view of the
strict security arrangements surrounding visits it was impossible for any
dangerous objects to be smuggled into the institution unobserved. Even if
such were the case, it would be discovered during the strip-search following
the visit.
52. The applicants thus maintained their claims that Mr Lorsé had been
treated in an inhuman or, at the very least, degrading manner.
b. The Government
53. The Government explained that the need for a maximum security
prison had arisen after a large number of breakouts from prisons in the
Netherlands had occurred in the 1980’s and early 1990’s, often involving
the use of firearms, knives or similar weapons and the taking of hostages.
The public had responded with growing alarm, while prison staff had begun
to fear for their safety.
54. Although the Government did not deny that the EBI regime imposed
severe restrictions – and for this reason, as few people as possible were
placed there –, they were of the opinion that the conditions in the EBI were
20 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

neither inhuman nor degrading. Each of the strict security measures

applying in the EBI was justified in view of the serious risks that less
stringent measures would entail. The Government submitted that they were
very aware of their obligation to minimise any risk to prison staff and of
their duty to do all they could to protect the public by preventing people
convicted of serious crimes from returning to the community before
completing their lawful sentences.
55. In the view of the Government, the CPT’s comment that the regime
“could be considered to amount to inhuman treatment” did not mean that it
actually was inhuman, since it was impossible to say how the regime
affected detainees in general; this rather depended on the individual’s
personality, character and other personal factors. Although it was clear that
Mr Lorsé had had difficulties coping with the maximum security regime,
the Government did not believe that this detention had been severely
psychologically damaging. Mr Lorsé had enjoyed contacts with fellow
inmates, had been allowed to receive visits from relatives and friends, and
had had ample opportunity to make telephone calls as well as to take part in
a wide variety of activities. His physical and mental well-being had been
under close surveillance: as recognised in the report “Care in and around the
Maximum Security Prison”, an operational system of psychological and
psychiatric care was in place in the EBI, which made it unlikely that any
serious harm to the mental health of detainees would go unnoticed.
56. Although the psychiatric report drawn up by Dr C. on
20 March 2001 gave cause for concern, it had to be borne in mind that this
was based on an examination of Mr Lorsé after his transfer from the EBI,
whilst during the last year of his detention in the EBI there had been no
indications that his mental health was deteriorating. Moreover, it appeared
from Dr D.’s report of 9 July 2001 that, even if Mr Lorsé’s mental health
had suffered as a result of his detention in the EBI, the effects were
temporary and not serious.
57. In conclusion, the Government held the view that the applicants had
failed to demonstrate beyond reasonable doubt that Mr Lorsé’s detention in
the EBI should be described as inhuman treatment within the meaning of
Article 3 of the Convention.

2. The Court’s assessment

a. General principles
58. The Court reiterates at the outset that Article 3 of the Convention
enshrines one of the most fundamental values of democratic society. It
prohibits in absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances and the victim’s behaviour
(see, for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR
2000-IV).
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 21

59. The Court further reiterates that, according to its case-law,

ill-treatment must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum is relative; it depends
on all the circumstances of the case, such as the duration of the treatment, its
physical and mental effects and, in some cases, the sex, age and state of
health of the victim (see, among other authorities, Ireland v. the United
Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).
60. Treatment has been held by the Court to be “inhuman” because, inter
alia, it was premeditated, was applied for hours at a stretch and caused
either actual bodily injury or intense physical and mental suffering, and also
“degrading” because it was such as to arouse in the victims feeling of fear,
anguish and inferiority capable of humiliating and debasing them (see, for
example, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). In
order for a punishment or treatment associated with it to be “inhuman” or
“degrading”, the suffering or humiliation involved must in any event go
beyond that inevitable element of suffering or humiliation connected with a
given form of legitimate treatment or punishment (see V. v. the United
Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX). The question whether
the purpose of the treatment was to humiliate or debase the victim is a factor
further to be taken into account, but the absence of any such purpose cannot
conclusively rule out a violation of Article 3 (see, for example, Peers v.
Greece, no. 28524/95, § 74, ECHR 2001-III; Kalashnikov v. Russia,
no. 47095/99, § 101, ECHR 2002-VI).
61. Conditions of detention may sometimes amount to inhuman or
degrading treatment (see Peers, cited above, § 75). When assessing
conditions of detention, account has to be taken of the cumulative effects of
those conditions, as well as the specific allegations made by the applicant
(see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II).
62. While measures depriving a person of his liberty often involve an
element of suffering or humiliation, it cannot be said that detention in a high
security prison facility, be it on remand or following a criminal conviction,
in itself raises an issue under Article 3 of the Convention. The Court’s task
is limited to examining the personal situation of the applicant who has been
affected by the regime concerned (see Aerts v. Belgium, judgment of
30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1958-59,
§§ 34-37). In this connection the Court emphasises that, although public
order considerations may lead states to introduce high security prisons for
particular categories of detainees, Article 3 nevertheless requires those
states to ensure that a person is detained in conditions which are compatible
with respect for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship of an
intensity exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and well-
being are adequately secured (see Kudła, cited above, §§ 92-94).
22 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

63. In this context, the Court has previously held that complete sensory
isolation, coupled with total social isolation, can destroy the personality and
constitutes a form of inhuman treatment which cannot be justified by the
requirements of security or any other reason. On the other hand, the removal
from association with other prisoners for security, disciplinary or protective
reasons does not in itself amount to inhuman treatment or degrading
punishment (see Messina v. Italy (dec.), no. 25498/94, ECHR 1999-V). In
assessing whether such a measure may fall within the ambit of Article 3 in a
given case, regard must be had to the particular conditions, the stringency of
the measure, its duration, the objective pursued and its effects on the person
concerned (see Dhoest v. Belgium, application no. 10448/83, Commission’s
report of 14 May 1987, Decisions and Reports (DR) 55, pp. 20-21,
§§ 117-18; McFeeley et al. v. the United Kingdom, application no. 8317/78,
Commission decision of 15 May 1980, DR 20, p. 44).
b. Application to the present case
64. Turning to the circumstances of the present case, the Court observes
first of all that the applicants’ complaints of the conditions of Mr Lorsé’s
detention do not concern the material conditions within the EBI but rather
the regime to which he was subjected. To this extent the case may be
compared to a series of applications lodged against Italy where the
applicants alleged that the special prison regime to which they were
subjected pursuant to section 41 bis of the Prison Administration Act
resulted in conditions which violated Article 3 of the Convention (see, for
instance, Messina v. Italy (dec.), cited above; Indelicato v. Italy (dec.),
no. 31143/96, 6 July 2000, unreported; Ganci v. Italy (dec.), no. 41576/98,
20 September 2001, unreported; Bonura v. Italy (dec.), no. 57360/00,
30 May 2002, unreported).
65. The Court notes that paragraphs 62-66 of the CPT report quoted
above (paragraph 43) contain a detailed description of conditions obtaining
in the EBI drawn up following a visit to the facility. Since neither party
have argued that this description is factually incorrect, the Court accepts that
it adequately reflects the situation in the EBI. However, the question
whether or not Mr Lorsé was subjected to inhuman or degrading treatment
within the meaning of Article 3 of the Convention depends on an
assessment of the extent to which he was personally affected (see
paragraph 62 above).
66. It is not in dispute that, throughout his detention in the EBI,
Mr Lorsé was subjected to very stringent security measures. The Court
further considers that Mr Lorsé’s social contacts were strictly limited, taking
into account that he was prevented from having contact with more than
three fellow inmates at a time, that direct contact with prison staff was
limited, and that, apart from once a month in the case of visits from
members of his immediate family, he could only meet with visitors behind a
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 23

glass partition. However, as it did in the cases against Italy referred to in

paragraph 64 above, the Court cannot find that Mr Lorsé was subjected
either to sensory isolation or to total social isolation. As a matter of fact, the
Italian special regime was significantly more restrictive both as regards
association with other prisoners and as regards visits: association with other
prisoners was entirely prohibited and only family members were allowed to
visit, once a month and for one hour (see Messina, cited above, § 13).
67. Mr Lorsé was placed in the EBI because he was considered
extremely likely to attempt to escape from detention facilities with a less
strict regime, and if he were to escape, he was deemed to pose an
unacceptable risk to society in terms of again committing serious violent
crimes (see paragraph 33 above). Although Mr Lorsé denied that he
harboured any such intentions, it is not for the Court to examine the validity
of the assessment carried out by the domestic authorities. In view of the
very serious offences of which Mr Lorsé was convicted (see paragraph 11
above), the Court accepts the assessment made by the domestic authorities.
68. In support of their claim that the EBI regime had such serious
damaging effects on Mr Lorsé’s mental health as to bring it within the scope
of Article 3 of the Convention, the applicants submitted a number of reports
relating to examinations of Mr Lorsé’s psychological condition. Two of the
reports submitted were drawn up during Mr Lorsé’s stay in the EBI, while
the other two were compiled shortly after his transfer from the EBI. The
first two reports, prepared by Mr V. and Dr S. respectively, leave no doubt
that Mr Lorsé had difficulties coping with his stay in the EBI and that it had
adverse consequences for his functioning, increasingly so as time went on
(see paragraphs 25 and 26 above). Dr C., who examined Mr Lorsé two
months after his transfer from the EBI, found that he was suffering from a
“moderately serious depression with endogenous features” and a
“moderately serious panic disorder”. In his opinion, there was a causal link
between Mr Lorsé’s complaints and the psychiatric disorders found by him
and Mr Lorsé’s long stay in the EBI (see paragraph 27 above). However,
Dr S., who examined Mr Lorsé during the latter’s stay in the EBI, found
insufficient indications to conclude that he was suffering from a depression
(see paragraph 26 above), and when Dr D. examined him some five months
after his transfer from the EBI, Mr Lorsé did not display any symptoms of a
disturbance of a depressive nature. Dr D. thus replied in the negative to the
question put by the Government as to whether Mr Lorsé was indeed
suffering from a “moderately serious depression” as reported by Dr C. She
concluded in addition that the adjustment disorder which had affected
Mr Lorsé following his transfer from the EBI had gone into remission by
the time of her examination (see paragraph 28 above).
69. The Court does not diverge from the view expressed by the CPT that
the situation in the EBI is problematic and gives cause for concern. This
must be even more so if detainees are subjected to the EBI regime for
24 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

protracted periods of time – like Mr Lorsé in the present case, who was held
in the EBI for approximately six and a quarter years.
70. The applicants also submitted that, if not inhuman, the treatment to
which Mr Lorsé had been subjected was at the very least degrading. In this
respect the Court observes that pursuant to the EBI house rules, Mr Lorsé
was strip-searched prior to and following an “open” visit as well as after
visits to the clinic, the dentist’s surgery or the hairdresser’s. In addition to
this, for more than six years he was also obliged to submit to a strip-search,
including an anal inspection, at the time of the weekly cell-inspection (see
paragraph 37 above), even if in the week preceding that inspection he had
had no contact with the outside world (see paragraph 65 of the CPT report)
and despite the fact that he would already have been strip-searched had he
received an “open” visit or visited the clinic, dentist or hairdresser’s. Thus,
this weekly strip-search was carried out as a matter of routine and was not
based on any concrete security need or Mr Lorsé’s behaviour.
The strip-search as practised in the EBI obliged Mr Lorsé to undress in
the presence of prison staff and to have his rectum inspected, which
required him to adopt embarrassing positions.
71. For Mr Lorsé, this was one of the features of the regime which was
hardest to endure, but the Government maintained that the strip-searches
were necessary and justified.
72. The Court has previously found that strip-searches may be necessary
on occasions to ensure prison security or to prevent disorder or crime (see
Valašinas v. Lithuania, no. 44558/98, § 117, ECHR 2001-VIII; Iwańczuk v.
Poland, no. 25196/94, § 59, 15 November 2001, unreported; McFeeley et
al. v. the United Kingdom, cited above, §§ 60-61). In the cases of Valašinas
and Iwańczuk one occasion of strip-search was at issue, whereas the case of
McFeeley et al. concerned so-called “close body” searches, including anal
inspections, which were carried out at intervals of seven to ten days, before
and after visits and before prisoners were transferred to a new wing of the
Maze Prison in Northern Ireland, where dangerous objects had in the past
been found concealed in the recta of protesting prisoners.
73. In the present case, the Court is struck by the fact that Mr Lorsé was
submitted to the weekly strip-search in addition to all the other strict
security measures within the EBI. In view of the fact that the domestic
authorities, through the reports drawn up by the Psychological Department
of their Penitentiary Selection Centre, were well aware that Mr Lorsé was
experiencing serious difficulties coping with the regime, and bearing in
mind that at no time during Mr Lorsé’s stay in the EBI did it appear that
anything untoward was found in the course of a strip-search, the Court is of
the view that the systematic strip-searching of Mr Lorsé required more
justification than has been put forward by the Government in the present
case.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 25

74. The Court considers that in the situation where Mr Lorsé was
already subjected to a great number of control measures, and in the absence
of convincing security needs, the practice of weekly strip-searches that was
applied to Mr Lorsé for a period of more than six years diminished his
human dignity and must have given rise to feelings of anguish and
inferiority capable of humiliating and debasing him.
Accordingly, the Court concludes that the combination of routine strip-
searching with the other stringent security measures in the EBI amounted to
inhuman or degrading treatment in violation of Article 3 of the Convention.
There has thus been a breach of this provision.

B. Alleged violation of Article 3 of the Convention in respect of the

other applicants

75. The applicants further complained that the restrictions on contacts

with Mr Lorsé amounted to inhuman or at the very least degrading treatment
with respect to his wife and children who, for more than six years, were not
allowed to touch him.
76. The Government did not specifically address this issue.
77. Whilst the Court accepts that the conditions under which the visits
from the other applicants to Mr Lorsé took place must have caused them
emotional distress, it considers that the circumstances complained of did not
attain the threshold of inhuman or degrading treatment within the meaning
of Article 3 of the Convention as established in the Court’s case-law.
There has, accordingly, been no violation of Article 3 in respect of the
second to ninth applicants.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

78. The applicants also complained that Mr Lorsé’s detention in the EBI
breached their rights as guaranteed by Article 8 of the Convention. This
provision, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private and family life ... .

2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
79. The applicants argued that the large number of security measures in
force in the EBI, in particular the systematic strip-searching but also the
monitoring of Mr Lorsé’s telephone conversations and correspondence as
well as the daily inspection of his cell, left Mr Lorsé not the tiniest space for
a private life. They further complained of the conditions under which visits
26 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

from the other applicants to Mr Lorsé had had to take place: behind a glass
partition with no possibility of physical contact save for a handshake once a
month. Bearing in mind that all communications between Mr Lorsé and his
wife and children were monitored, the applicants contended that Mr Lorsé’s
detention in the EBI constituted an unjustified interference with the rights of
his wife and children to respect for their private and family life as well.
80. The Government did not dispute the fact that the opportunities for
the applicants to exercise their private and family life were restricted. They
maintained, however, that the restrictions on Mr Lorsé’s private and family
life were inherent in his detention and necessary within the meaning of
paragraph 2 of Article 8. The regime in the EBI was especially geared to the
two weakest links in any security chain: contact with people outside the
institution who were in a position to provide the information and means that
would enable detainees to escape, and contact with prison staff, who were
vulnerable to attack. This meant that the prisoner was not allowed to hold
unmonitored conversations with his visitors or have physical contact such as
would enable him to receive objects that could facilitate his escape, and that
systematic controls and surveillance were justified.
81. To the extent that the applicants’ complaint of an unjustified
interference with the right to respect for Mr Lorsé’s private life
encompasses the strip-searching to which he was subjected, the Court points
out that it has already examined this aspect of the EBI regime in the context
of Article 3 of the Convention. In view of the conclusion reached (see
paragraph 74 above), it considers that it is not necessary to include this
element in the examination of the present complaint.
82. The Court reiterates that any detention, lawful for the purposes of
Article 5 of the Convention, by its nature entails a limitation on private and
family life. Whilst it is an essential part of a prisoner’s right to respect for
family life that the prison authorities should assist him in maintaining
contact with his family (see Messina v. Italy, no. 25498/94, § 61, ECHR
2000-X), the Court recognises at the same time that some measure of
control over prisoners’ contacts with the outside world is called for and is
not of itself incompatible with the Convention (see Kalashnikov v. Russia
(dec.), no. 47095/99, ECHR 2001-XI).
83. Mr Lorsé was subjected to a regime which involved further
restrictions on his private and family life than a regular Netherlands prison
regime. Thus, his cell was inspected on a daily basis, his correspondence
was read, his telephone conversations and conversations with visitors were
monitored, he was allowed to associate with a limited number of fellow
prisoners only and he was separated from his visitors by a glass partition
except for the possibility of one “open” visit per month by members of his
immediate family whose hand he was allowed to shake at the beginning and
end of the visit. As there was thus an interference with Mr Lorsé’s right to
respect for his private and family life within the meaning of Article 8 § 1 of
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 27

the Convention, the question arises whether this interference was justified
under the terms of paragraph 2 of that provision, i.e. whether it can be
regarded as being “in accordance with the law” for the purposes of one or
more of the legitimate aims referred to in that paragraph and whether it can
be regarded as being “necessary in a democratic society”.
84. The Court notes that the restrictions complained of were based on
the 1999 Prisons Act, the Prisons Order and the EBI house rules and finds,
therefore, no indication that the restrictions were not “in accordance with
the law”. It also accepts that they pursued the legitimate aim of the
prevention of disorder or crime within the meaning of Article 8 § 2 of the
Convention.
85. The Court observes that Mr Lorsé was placed in the EBI because the
authorities thought it likely that he might attempt to escape. As noted above
(paragraph 67), it is not for the Court to assess the accuracy of this
contention, but it does accept that the authorities were entitled to consider
that an escape by Mr Lorsé would have posed a serious risk to society. To
this extent, the present case is thus different from the cases against Italy to
which reference is made above (paragraph 64): in those cases, the particular
security features of the special regime had been designed in order to cut all
links between the prisoners concerned and the criminal environment to
which they had belonged. In the present case, the security measures were
established in order to prevent escapes. The Court considers that the
particular features of the Italian special regime and those of the EBI regime
effectively illustrate this difference. Thus, in the Italian special regime more
emphasis was placed on restricting contacts with other prisoners and with
family members than in the EBI regime, whereas in the EBI, security is
concentrated on those occasions when, and places where, the prisoner
concerned might obtain or keep objects which could be used in an attempt at
escape or where he might obtain or exchange information relating to such an
attempt. Within these constraints, Mr Lorsé was able to receive visitors for
one hour every week and to have contact, and take part in group activities,
with other EBI inmates, albeit a limited number. Although strict security
measures were in place, Mr Lorsé and the other applicants were thus
nevertheless able to maintain regular contact.
86. In the circumstances of the present case the Court finds that the
restrictions of the applicants’ right to respect for their private and family life
did not go beyond what was necessary in a democratic society to attain the
legitimate aims intended.
Accordingly, there has been no violation of Article 8 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

87. The applicants finally submitted that the refusal by the Appeals
Board of the Central Council for the Administration of Criminal Justice, in
28 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

its decision of 22 November 2000, to examine their complaint of a violation

of Article 3 of the Convention (see paragraph 22 above) meant that they did
not have an effective remedy within the meaning of Article 13 of the
Convention at their disposal.
Article 13 provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
88. The applicants stated that in the proceedings before the Appeals
Board Mr Lorsé had not asked for a decision on the compatibility with
Article 3 of the Convention of the EBI regime as such, but that he had
confined the appeal to the extension of his detention in the EBI. The
arguments presented on behalf of Mr Lorsé in those proceedings had
centred rather on the psychological condition of the applicants, and the
restrictions, which had been in place for many years, on Mr Lorsé’s private
life as well as the restrictions on contact between him and the other
applicants. Mr Lorsé had thus claimed that his rights under the Convention
and those of his family would be violated if his detention in the EBI was
extended.
89. Mr Lorsé had not sought an interim injunction since only the
compatibility with international agreements of the applicable regulations
and the EBI regime as such could be addressed in those proceedings, with
no possibility of account being taken of the particular circumstances of the
applicants’ case. Furthermore, interim injunction proceedings could not
have resulted in Mr Lorsé’s transfer.
90. The Government insisted that an effective legal remedy had been
available to the applicants. They explained that different legal remedies
existed in respect of the decision to extend Mr Lorsé’s placement in the EBI
on the one hand, and matters concerning the conditions in the EBI and the
maximum security regime as such on the other. The proceedings which had
led to the impugned decision of the Appeals Board concerned the extension
of Mr Lorsé’s placement in the EBI. The Appeals Board had duly examined
the question whether this extension was compatible with the Convention by
reviewing the case in the light of both Articles 6 and 8 of the Convention.
However, it had interpreted Mr Lorsé’s objections based on Article 3 as an
objection to the regime, and objections of this kind transcended the level of
the individual detainee, for whom the appeals procedure under the 1999
Prisons Act was intended.
91. The Government argued that both Mr Lorsé and the other applicants
could have instituted civil proceedings in order to have the lawfulness of the
EBI regime reviewed in the light of the Convention. Although, in principle,
such proceedings could not have resulted in Mr Lorsé’s placement in the
EBI being declared unlawful and his being transferred as a result, the
outcome could have been that his continued detention in the EBI would
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 29

have been pronounced unlawful, in which case the regime would have had
to be modified in respect of Mr Lorsé.
92. The Court observes that the decision to detain Mr Lorsé in the EBI
was reviewed every six months (see paragraph 36 above). It appears from
the file that prior to a decision on prolongation of that detention being taken,
advice was sought, at least on a number of occasions, from the Penitentiary
Selection Centre as to the psychological aspects of a prolongation (see
paragraphs 25 and 35-36 above). Mr Lorsé was able to appeal the decision
to prolong his detention (see paragraph 38 above). It appears from the
decisions reached by the Appeals Board in his case that this Board not only
assessed the risk and consequences of an escape by him, but that it also
examined whether there were any indications or circumstances militating
against an extension of his placement in the EBI and that it carried out a
balancing exercise of all the interests involved (see paragraphs 19 and 22
above). In this context the Court observes that the interests of Mr Lorsé’s
family members must be deemed to have been taken into account in these
proceedings (see paragraph 40 above). The Appeals Board stated explicitly
in its decision of 16 March 2000 (see paragraph 19 above), that it also had
regard to Mr Lorsé’s psychological condition.
93. It is true that in its decision of 22 November 2000 the Appeals Board
decided that it would not examine the compatibility with Article 3 of the
Convention of the EBI regime as such (see paragraph 22 above). However,
in view of the preceding paragraph the Court is satisfied that the Board did
in fact address and rule on the applicants’ complaints relating to the
allegedly deleterious effects – on Mr Lorsé as well as on the other
applicants – of the continued detention of Mr Lorsé in the EBI.
94. The Court further observes that the Appeals Board is competent to
take binding decisions: if it had been of the view that Mr Lorsé’s placement
ought not to be extended, it had the power to quash the impugned decision,
following which a new decision would have had to be taken by the Minister
with account being taken of the Board’s ruling (see paragraph 39 above) –
this is in fact what the Appeals Board did in its decision of 31 May 1999
(see paragraph 16 above). Alternatively, the Appeals Board could have
ruled that its decision was to take the place of the decision appealed against,
or confine itself to annulling the impugned decision (see paragraph 39
above).
95. In addition, and as the Government have pointed out, it was open to
the applicants to institute interim injunction proceedings if they wished to
obtain a judicial ruling on the compatibility with Article 3 of the regime as
such. Even if the court dealing with a request for such an interim injunction
could not have ordered the State to transfer Mr Lorsé from the EBI to a
prison with a less strict regime, such proceedings might nonetheless have
resulted in an interim injunction being issued to the effect that the regime in
the EBI be modified in respect of Mr Lorsé (see paragraph 42 above).
30 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

96. Given that the word “remedy” within the meaning of Article 13 does
not mean a remedy bound to succeed, but simply an accessible remedy
before an authority competent to examine the merits of a complaint (see
Lacko and Others v. Slovakia (dec.), no. 47237/99, 2 July 2002; K. v. the
United Kingdom, application no. 11468/85, Commission decision of
15 October 1986, DR 50, p. 199), the Court considers that the proceedings
before the Appeals Board and the possibility of interim injunction
proceedings taken together provided the applicants with an effective remedy
(see Leander v. Sweden, judgment of 26 March 1987, Series A no. 116,
pp. 29-30, § 77) .
Accordingly, the Court concludes that there has been no violation of
Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

97. 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

98. The applicants submitted that no amount of money would be capable

of compensating the harm suffered by them. They therefore requested the
Court to award them a symbolic amount of 1,000 Netherlands guilders
(453.78 euros (EUR)).
99. The Government had no comment in response to the applicants’
claim.
100. The Court, bearing in mind its findings above regarding the
applicants’ complaints, considers that Mr Lorsé suffered some moral
damage as a result of the treatment to which he was subjected in the EBI.
The Court therefore awards Mr Lorsé the full amount claimed by the
applicants under this head, namely EUR 453.78.

B. Costs and expenses

101. The applicants claimed reimbursement of the costs and expenses

incurred by them. These amounted to EUR 7,271.73 and related to lawyer’s
fees incurred at the beginning of the proceedings before the Court, the
applicants having benefited from legal aid in the domestic proceedings and
the remainder of the proceedings before the Court.
102. The Government had no comment in respect of this claim.
 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT 31

103. According to its settled case-law, the Court will award costs and
expenses in so far as these relate to the violation found and to the extent to
which they have been actually and necessarily incurred and are reasonable
as to quantum (see, among other authorities, Schouten and Meldrum v. the
Netherlands, judgment of 9 December 1994, Series A no. 304, pp. 28-29,
§ 78).
Taking into account that it found a violation in respect of only one of the
applicants and of only one aspect of their complaints and making an
assessment on an equitable basis, the Court awards Mr Lorsé EUR 2,500
under this head, less EUR 305 received by way of legal aid from the Court
for the preparation of the application, i.e. a total of EUR 2,195.

C. Default interest

104. 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 (see Christine Goodwin v.
the United Kingdom [GC], no. 28957/95, § 124, ECHR 2002-VI).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 3 of the Convention in
respect of Mr Lorsé;

2. Holds that there has been no violation of Article 3 of the Convention in

respect of the other applicants;

3. Holds that there has been no violation of Article 8 of the Convention;

4. Holds that there has been no violation of Article 13 of the Convention;

5. Holds
(a) that the respondent State is to pay Mr Lorsé, within three months
from the date on which the judgment becomes final according to
Article 44 § 2 of the Convention, the following amounts:
(i) EUR 453.78 (four hundred and fifty three euros and seventy-
eight cents) in respect of non-pecuniary damage;
(ii) EUR 2,195 (two thousand one hundred and ninety-five euros) in
respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
32 LORSÉ AND OTHERS v. THE NETHERLANDS JUDGMENT

(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 4 February 2003, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Michael O’BOYLE Elisabeth PALM

Registrar President