EHRM, 07-06-2007, nr. 13600/02

Under this head, the applicant claimed EUR 2,856, including 19% value-added tax (VAT), which amount corresponded to twelve hours' work by his lawyer at an hourly rate of EUR 200 and only relating to the proceedings under the Convention. Although the applicant had been granted legal aid for those proceedings under the domestic legal aid scheme, his lawyer requested the Court to award the total amount of EUR 2,856 as this sum corresponded to a reasonable fee which the lawyer would have charged the applicant had he not been in receipt of free legal aid, whereas the legal aid allowance under the domestic scheme was likely to be about EUR 1,500 less and the domestic legal aid (offer) could still be turned down by the applicant or his lawyer.

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

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

The applicant submitted that he had been detained in the EBI for a period of five and a half years during which he had been subjected to weekly routine strip-searches and that, to date, he had to deal with physical and mental problems as a result of his treatment in the EBI. In this connection, the applicant referred to the findings of a psychiatrist who had concluded that the applicant had developed a post-traumatic stress disorder and a depressive disorder during and as a result of his treatment in the EBI.

The applicant further submitted that the question of the application of Article 41 did not yet seem ready for decision, as the proceedings on the civil action in tort he had brought against the Netherlands State before the Regional Court (arrondissementsrechtbank) of The Hague were still pending (see Baybaşin, cited above, § 19).

The Government submitted that an award for compensation for non-pecuniary damage should be proportionate to the period of the applicant's detention in the EBI falling within the scope of the application, namely a period of sixteen months. On that basis, the Government considered that an amount of EUR 2,000 would be reasonable.

The Court accepts that the applicant suffered some non-pecuniary damage as a result of the treatment to which he was subjected in the EBI during the period falling within the scope of the application, namely a period of slightly more than sixteen months. However, the Court notes that — when it adopted the principal judgment in the case — the applicant had already taken domestic civil proceedings in tort against the Netherlands State in which he was claiming inter alia compensation for non-pecuniary damage suffered on account of having been subjected to weekly routine strip-searches in the EBI which treatment the Court, in the principal judgment, found in violation of Article 3 of the Convention. The Court further notes that these domestic proceedings are currently still pending at a first instance stage.

The Court reiterates its considerations set out in §§ 67–84 of the principal judgment and has found no reasons for holding that the domestic civil action taken by the applicant would stand no reasonable chance of success in so far as, in these proceedings, he is seeking compensation of non-pecuniary damage in respect of the violation of his rights under Article 3 of the Convention as found by the Court in the principal judgment.

In the light of Article 37 § 1 (c) of the Convention the Court finds that, in these circumstances, it is not justified to continue its examination of the question of the application of Article 41 of the Convention as regards the applicant's claim for compensation of non-pecuniary damage which would imply adjourning it pending a final domestic decision on this matter. In accordance with Article 37 § 1in fine of the Convention, the Court finds no special circumstances regarding respect for human rights as defined in the Convention which require the continuation of the examination of this part of the application.

Consequently, this part of the application should be struck out of the list. In reaching this conclusion, the Court has taken into account its competence under Article 37 § 2 of the Convention to restore the case to its list of cases if it considers that the circumstances justify such a course.