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Cite as: [2007] ECHR 335

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THIRD SECTION

CASE OF SYLLA v. THE NETHERLANDS

(Application no. 14683/03)

JUDGMENT

(Just satisfaction)

STRASBOURG

26 April 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Sylla v. the Netherlands,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Mr B.M. Zupančič, President,
Mr C. Bîrsan,
Mrs E. Fura-Sandström,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs I. Ziemele, judges,
and Mr S. Quesada, Section Registrar,

Having deliberated in private on 29 March 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 14683/03) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French and/or Netherlands national ¹, Béliard Sylla (“the applicant”), on 29 April 2003.

In a judgment delivered on 6 July 2006 (“the principal judgment”), the Court held that the weekly routine strip-searches to which the applicant had been subjected during his stay in the maximum security institution (“EBI”) were contrary to his rights under Article 3 of the Convention (Sylla v. the Netherlands, no. 14683/03, §§ 60-62, 6 July 2006).

Under Article 41 of the Convention the applicant sought just satisfaction of an amount of 2,000 euros (EUR) for non-pecuniary damage and EUR 2,380 for legal costs incurred.

Since the question of the application of Article 41 of the Convention was not ready for decision, the Court reserved it and invited the Government and the applicant to submit, within three months, their written observations on that issue and, in particular, to notify the Court of any agreement they might reach (ibid., §§ 84 and 90, and point 3 of the operative provisions).

Meanwhile, on 26 July 2006, the Regional Court (arrondissementsrechtbank) of The Hague had rejected the request filed on 11 July 2005 by the applicant and eight other (former) EBI detainees for leave to join the civil action in tort (onrechtmatige daad) brought on 10 August 2004 against the Netherlands State by another former EBI detainee (for further details, ibid. §§ 19-20).

The applicant and the Government each filed observations on the application of Article 41 of the Convention, whereupon the State but not the applicant filed comments in reply.

THE LAW

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant submitted that he had been detained in the EBI for a period of two and a half years during which he had been subjected to weekly routine strip-searches, that – to date – he had to deal with physical and mental problems as a result of his treatment in the EBI, and that the considerable non-material damage thus suffered by him could not be expressed in monetary terms. Pointing out that, in its judgment in the case of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003 II), the Court had made an award for non-pecuniary damage of 3,000 euros (EUR) to the applicant in that case, who had been detained in the EBI for three and a half years, the applicant claimed an amount of EUR 2,000 in compensation for non-pecuniary damage.

The Government submitted that an award for compensation for non pecuniary damage should be proportionate to the period of the applicant's detention in the EBI falling within the scope of the application, namely a period of about eight months. On that basis, the Government considered that an amount of EUR 1,000 would be reasonable.

The Court considers that the applicant suffered some non-pecuniary damage as a result of the treatment to which he was subjected in the EBI during the period falling within the scope of the application, namely a period of eight and a half months. Accordingly, an award under this head is appropriate and the Court is of the opinion that the amount proposed by the Government is fully adequate. It therefore awards the applicant EUR 1,000 on an equitable basis under this head.

B. Costs and expenses

Under this head, the applicant claimed EUR 2,380, including 19% value-added tax (VAT), which amount corresponded to ten hours' work by his lawyer at an hourly rate of EUR 200 and only relating to the proceedings under the Convention. Although the applicant had been granted legal aid for those proceedings under the domestic legal aid scheme, his lawyer requested the Court to award the total amount of EUR 2,380 as this sum corresponded to a reasonable fee which the lawyer would have charged the applicant had he not been in receipt of free legal aid, whereas the legal aid allowance under the domestic scheme was likely to be about EUR 1,000 less and the domestic legal aid (offer) could still be turned down by the applicant or his lawyer.

The Government, noting that the applicant had been granted legal aid under the Netherlands domestic legal aid scheme for the proceedings before the Court, were of the opinion that the costs incurred during these proceedings were already adequately covered. Relying on the Court's considerations in respect of costs and expenses claimed in the case of Visser v. the Netherlands (no. 26668/95, § 59, 14 February 2002), they considered that there is no need to pay costs incurred in proceedings under the Convention if an applicant qualifies for subsidised legal aid under a domestic legal aid scheme.

Reiterating its considerations and decision in respect of the claim for costs and expenses filed in the case of Van der Ven v. the Netherlands, (cited above, § 79) in which case the applicant made the same request as the applicant in the instant case, the Court finds no reason to take a different approach in the case at hand. Consequently, as the applicant is entitled to legal aid in respect of the present proceedings under the Netherlands domestic legal aid system, the Court is of the opinion that there is no ground for making an award under this head.

C. Default interest

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

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

Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 26 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Santiago Quesada Boštjan M. Zupančič
Registrar President

1 In his application form, the applicant indicated that he was a French national whereas, in a letter of 20 July 2006 to the Court, he stated that he was a Netherlands national.