EHRM, 06-07-2006, nr. 8196/02

Under Netherlands law the civil courts have traditionally had jurisdiction to grant relief against the authorities, if and in so far as no other relief is available. Where a person bases a claim against the authorities on an allegation that they have committed a tort within the meaning of Article 6:162 of the Dutch Civil Code (Burgerlijk Wetboek) against him or her, the civil courts have jurisdiction in principle. Where the civil courts have jurisdiction, they can also act in summary injunction proceedings (kort geding) in which a claimant can, inter alia, request the civil court to issue an order against the authorities. An act by the authorities is unlawful and constitutes a tort when it violates a right of the claimant or is contrary to a rule of international or domestic law which seeks to protect the claimant's interests, or to general principles of proper administration (algemene beginselen van behoorlijk bestuur). An action in tort is subject to a five-year limitation period under Article 3:310 (1) of the Civil Code.

However, as to the jurisdiction of the civil courts in cases where an administrative appeal lies, it is an established principle under Netherlands law that — given the closed system of legal remedies (gesloten system van rechtsmiddelen) in the Netherlands legal system — the civil court should refrain from examining the lawfulness of an administrative decision, provided that the administrative appeal offers sufficient guarantees as to a fair procedure. On this topic, extensive case-law has been developed by the Netherlands Supreme Court (Hoge Raad) over the last decades, supported by a number of authorities, to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure, the civil courts have full jurisdiction to review the lawfulness of the administrative decision. On the other hand, a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings (see Supreme Court, 12 December 1986, Nederlandse Jurisprudentie (Netherlands Law Reports — ‘NJ’) 1987, no. 381; see also Oerlemans v. the Netherlands, judgment of 27 November 1991, Series A no. 219, §§ 21–35 and §§ 53–56).

In a case in which it gave judgment on 3 December 1971, the Supreme Court examined the question whether a party which considered that it had been injured by a judicial ruling against it could bring a subsequent civil action in tort against the State, arguing that the judge had failed to act with due care in giving that ruling. The Supreme Court found that this was not possible, holding that it was solely for the legislature to decide in what cases a remedy was to be provided. It would be incompatible with this principle if an unsuccessful party were to have the possibility, through a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, thus obtaining a fresh examination in a manner other than that provided for by statute. It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles (fundamentele rechtsbeginselen) that the case could no longer be said to have been determined in a fair and impartial manner, and if there was no possibility of appeal nor had there ever been such a possibility, could the State be held liable for the effects of such a ruling through a civil action in tort (NJ 1972, no. 137; see also Supreme Court, 29 April 1994, NJ 1995, no. 727; Court of Appeal of The Hague, 16 July 1998 and 12 November 1998, NJ 1999, nos. 256 and 127; and Court of Appeal of The Hague, 7 April 2000 and 18 May 2000, Administrative Law Reports (Jurisprudentie Bestuursrecht) 2000, nos. 147 and 142).

In a judgment given on 3 April 1987 concerning civil proceedings taken against the Netherlands State by an association of detainees who wished to challenge a special restricted-detention regime in a specific wing of the prison in The Hague, the Supreme Court held that, as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned (that is to say, the individual complaint procedure provided for in Article 51 et seq. of the Prisons Act 1953 (Beginselenwet Gevangeniswezen) as in force at that time) and it was not in dispute that that remedy offered sufficient procedural safeguards, the claimant's case had been correctly declared inadmissible, as the association had acted solely ‘in the context of promoting the interests of its members’, which were already safeguarded by the individual complaint procedure under Article 51 et seq. of the Prisons Act 1953 (NJ 1987, no. 744).

In a judgment given on 1 February 1991 (NJ 1991, no. 413) in a civil action against the Netherlands State brought by a co-accused of a successful applicant to Strasbourg (Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166), the Supreme Court held as follows:

In that case, the Supreme Court accepted the Court of Appeal's finding against the claimant in view of the fact that, when the impugned ruling was given on 22 December 1988, the Court had not yet delivered its judgment in the Kostovski case.

A number of persons detained in the EBI have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime, or certain aspects of it, relaxed (for further details, see Lorsé and Others, cited above, §§ 40–42).

On 1 January 2003 an amendment to Article 457 of the Code of Criminal Procedure (Wetboek van Strafvordering — ‘the CCP’) entered into force, governing possible means of obtaining revision (herziening) of final judgments. The amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by the European Court of Human Rights that the criminal proceedings leading to that conviction had been in violation of the Convention. The relevant part of the amended text of Article 457 of the CCP reads:

A request for revision can be lodged with the Supreme Court by the Procurator General, the convicted person or the latter's lawyer within a period of three months after the convicted person has become aware of the Court's ruling referred to in Article 457 (1), subparagraph 3 (Article 458 of the CCP).

If the Supreme Court accepts a request for revision based on Article 457 (1), subparagraph 3, it may either itself determine the criminal charges after reopening the criminal proceedings, or order the suspension of execution of the original judgment and remit the case for a fresh determination to a Court of Appeal different from the one that gave the original judgment (Article 567 (2) of the CCP).

In its judgment of 23 April 1997 in the case of Van Mechelen and Others v. the Netherlands (Reports of Judgments and Decisions 1997-III), the Court found a violation of the Convention in that the criminal proceedings against the four applicants had not been conducted in compliance with the requirements of Article 6 §§ 1 and 3 (d) of the Convention. In its judgment it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the applicants' claim for non-pecuniary damage, considering that that part of the applicants' claim for just satisfaction was not ready for decision.

On 23 April 1997 the applicants in that case lodged a request for their immediate release from detention, failing which they would bring summary injunction proceedings against the State. On 25 April 1997 the Minister of Justice decided to grant them temporary release (strafonderbreking) and they were released from prison on the same day.

The Court determined the applicants' claims for non-pecuniary damage in its judgment of 30 October 1997 (Van Mechelen and Others v. the Netherlands (Article 50), Reports 1997-VII), in which it noted that under domestic law it was not possible for the applicants to obtain a retrial1.. The applicants had claimed 250 Netherlands guilders (NLG) for each day spent in detention, resulting in total claims of between NLG 746,000 and NLG 752,500. After having examined the respondent Government's comments on those claims, the Court awarded one applicant NLG 30,000 (13,613.41 euros (EUR)) and each of the three other applicants NLG 25,000 (EUR 11,344.51) for non-pecuniary damage, and rejected the remainder of the applicants' claims for non-pecuniary damage.

On 19 February 1999 the Committee of Ministers of the Council of Europe, exercising its supervisory powers under the Convention as regards the execution of the Court's judgments of 23 April 1997 and 30 October 1997, adopted a final resolution (Res DH(99)124) in the case. Having noted the measures taken by the Netherlands on the basis of the Court's judgments, the Committee of Ministers concluded that the manner in which the Netherlands had executed both judgments was in compliance with their obligations under the Convention.

On 29 April 1999 three of the four applicants brought a civil action in tort against the Netherlands State before the Regional Court of The Hague. They sought a declaratory ruling that the Netherlands State was liable for pecuniary and non-pecuniary damage arising out of unlawful administration of justice in violation of their rights under Article 6 §§ 1 and 3 (d). They sought payment of compensation corresponding to NLG 250 for each day spent in detention, less the compensation awarded by the Court. They based their claims on the argument that, given the Court's findings in its judgment of 23 April 1997, it had been established that in the domestic criminal proceedings against them the Dutch court had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful.

In its judgment of 5 July 2003, following appeal proceedings taken by the Netherlands State, the Court of Appeal of The Hague quashed the impugned judgment given on 17 January 2001 by the Regional Court, and for the time spent in detention (pre-trial and following conviction) awarded compensation for non-pecuniary damage to the first claimant in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court. It awarded the second claimant EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third claimant EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia, as follows:

In its judgment of 18 March 2005 on the appeal on points of law brought by the Netherlands State against the ruling of 5 July 2003, the Supreme Court held that the State had been correct in not challenging this part of the reasoning in the impugned judgment.

On 4 February 2003 the Court delivered its judgment in the case of Lorsé and Others (cited above), finding a violation of Article 3 of the Convention in respect of the applicant Mr Lorsé in that, during his stay in the EBI for more than six years, the applicant — who was already subjected to a great number of control measures — had been subjected to weekly routine strip-searches without convincing security reasons. It found no violation in respect of the other grievances raised by Mr Lorsé and the other applicants (his spouse and children) under Articles 3, 8 and 13 of the Convention. As regards damages, the applicants requested the Court to award them a symbolic amount of NLG 1,000 (EUR 453.78), stating that no amount of money would be capable of compensating for the harm suffered by them. Taking the view that Mr Lorsé had sustained some psychological damage on account of the treatment which had been found contrary to Article 3, the Court awarded him, in respect of such damage, EUR 453.78, that is to say, the full amount claimed under that head.

On 6 February 2003 Mr Lorsé brought summary injunction proceedings against the Netherlands State before the judge responsible for provisional measures in the Civil Law Division of the Regional Court of The Hague, seeking an order against the State to discontinue, with immediate effect, the execution of the fifteen-year prison sentence that had been imposed on him, to release him immediately from prison and not to seek payment of the fine of NLG 1,000,000 (EUR 453,780.22) that had also been imposed.

On 12 February 2003 the judge responsible for provisional measures ruled on the applicant's request. The decision, in its relevant part, reads:

Both parties agreed to lodge a direct ‘leapfrog’ appeal on points of law (sprongcassatie) with the Supreme Court, which dismissed both appeals on 31 October 2003. Although it agreed with the Netherlands State that the judge responsible for provisional measures had incorrectly assumed that Article 41 of the Convention gave Mr Lorsé an (independent) right to redress which, if need be, could be asserted before the domestic court, it held that this could not lead to the setting-aside of the judgment as, pursuant to the Convention, the State was obliged to provide redress. However, relying on the Court's reasoning in the cases of Papamichalopoulos and Others v. Greece ((Article 50), judgment of 31 October 1995, Series A no. 330-B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000-VIII), the Supreme Court considered that, although the State was in principle free to determine the manner in which redress was to be provided, that freedom did not mean that the domestic court was unable to take a decision on that point, but simply that a suitable form of redress was to be sought within the domestic legal order. As the Netherlands State had acted unlawfully towards Mr Lorsé in so far as his rights under Article 3 had been violated, as found by the Court, Mr Lorsé was entitled to claim compensation from the State, which would be acting unlawfully if it failed to provide a suitable form of redress. The Supreme Court accepted that such compensation could be granted in a manner other than by paying a sum of money. In cases such as the present, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of discontinuing the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to discontinue execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of Mr Lorsé. As regards the argument raised by the State that the closed system of legal remedies and the corresponding obligation for the State to execute rulings of the criminal courts precluded the form of redress claimed by Mr Lorsé, the Supreme Court — while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [as in the case of Van Mechelen and Others] and a situation in which the violation found was unrelated to such a conviction or proceedings [as in the case of Mr Lorsé] — held that this difference did not mean that the judge responsible for provisional measures had based point 3.5 of the impugned ruling on an incorrect interpretation of the law. Given the particular circumstances of the case, the violation of Article 3 found by the Court and the fact that there was no specific statutory remedy for determining redress for such a violation, the Supreme Court concluded that in that case an exception to the closed system of legal remedies could be accepted. It further found that the judge responsible for provisional measures had given sufficient reasons as to the determination of the compensation awarded to Mr Lorsé.

In its judgment of 8 April 2003 in the case of M.M. v. the Netherlands (no. 39339/98), in which the applicant complained that his telephone conversations with a Mrs S. had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him, the Court found a violation of Article 8 of the Convention on the ground that the conversations in question had not been recorded ‘in accordance with the law’. As the applicant had declined to submit any claims for compensation in respect of pecuniary or non-pecuniary damage, stating that he intended instead to pursue such claims before the domestic courts, the Court made no award for just satisfaction under those heads. In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings, the Court rejected the applicant's argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case, taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant's part, and recalling that it had already, at the admissibility stage, rejected the applicant's complaints touching on the use made of the evidence obtained as a result of the violation found.

On an unspecified date and on the basis of the Court's findings in its judgment of 8 April 2003, the applicant M.M. filed a request with the Supreme Court for revision of the final domestic judgment of 16 June 1995, in which the Court of Appeal — without the recorded telephone conversations having been relied on in evidence — had convicted him of having sexually assaulted Mrs S. and another woman and had sentenced him to a suspended term of four months' imprisonment, together with a fine of NLG 10,000 (EUR 4,537.80), to be replaced by 100 days' detention for default of payment.

On 27 September 2005 the Supreme Court accepted the request for revision and, in accordance with Article 467 (2) of the CCP, determined the matter itself. It held as follows:

The Supreme Court quashed the original judgment of the Court of Appeal in part, that is, in respect only of the amount of the fine imposed and the duration of the detention for default, reducing the fine by 10% to EUR 4,000 and the detention for default to 90 days.

The Government submitted that domestic remedies had not been exhausted, as the applicant had requested leave from the Regional Court of The Hague to join a pending civil action in tort brought by another former EBI detainee claiming, inter alia, compensation for non-pecuniary damage sustained on account of having been subjected to allegedly humiliating and unnecessary strip-searches in the EBI. Furthermore, if the applicant were to be awarded any compensation in those proceedings, he could no longer be regarded as a victim for the purposes of Article 34 of the Convention. The Government were therefore of the opinion that the application should be declared inadmissible.

The applicant, pointing out that the Regional Court had not yet ruled on his request for leave to join the pending civil action brought by another former EBI detainee, disagreed. He submitted that, even if the Regional Court were to accept his request to join the pending civil action, he could only apply to the civil court for early release or payment of damages for the treatment to which he had been subjected in the EBI as, under the Netherlands legal system, the civil courts did not in principle have jurisdiction to determine whether the treatment of detainees was in accordance with the Convention. Complaints about detention in the EBI and complaints about the EBI regime had to be brought before the penitentiary judge. Only if the latter refused to take a decision as to the merits could the civil court act as a ‘last-resort judge’ within the closed system of legal remedies. However, the civil court could not overrule the penitentiary judge's ruling on the merits.

The Court reiterates the relevant principles as to exhaustion of domestic remedies as set out in, inter alia, its judgment of 28 July 1999 in the case of Selmouni v. France ([GC], no. 25803/94, §§ 74–77, ECHR 1999-V). The purpose of Article 35 § 1 of the Convention is to afford Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. The obligation to exhaust domestic remedies is, however, limited to making use of those remedies which are likely to be effective and available, meaning that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention.

The Court emphasises that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting States have agreed to set up. Accordingly, it has recognised that Article 35 § 1 must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see, for instance, Reilly v. the United Kingdom (dec.), no. 53731/00, 26 June 2003).

In the present case, the ordinary remedy for challenging a decision to transfer to, or prolong detention in, the EBI was to appeal to the Appeals Board of the Central Council for the Administration of Criminal Justice or, after 1 April 2001, the Appeals Board of the Council for the Administration of Criminal Justice and Protection of Juveniles, a remedy of which the applicant in fact availed himself. The Court has further found no indication that a civil action against the State has ever been entertained by a domestic civil court on the basis of a finding that this specific remedy before the Appeals Board did not offer sufficient guarantees of fair proceedings or that in such appeal proceedings fundamental legal principles had been breached. Consequently, the Court has found no reason for concluding that, for the purposes of Article 35 § 1 of the Convention, the applicant should have turned to the civil courts after his appeals to the Appeals Board were dismissed.

This finding is not altered by the fact that proceedings concerning the applicant's request of 11 July 2005, for leave to join a civil action brought by another former EBI detainee, are currently pending before the Regional Court, as those proceedings concern a claim for compensation in respect of non-pecuniary damage comparable to a claim under Article 41 of the Convention. The Court therefore finds it appropriate to examine this point under that provision.

In these circumstances, the Court finds that the application cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. It further finds that the application is not inadmissible on any other grounds. Consequently, it must be declared admissible.

The applicant, pointing out that he had been detained in the EBI for a period of nearly five years, during which time he had been subjected to weekly routine strip-searches on account of which he had sustained considerable psychological damage that could not be expressed in monetary terms, claimed an amount of EUR 5,000 in compensation for such damage. In that connection he submitted that, in the case of Mr Van der Ven, who had been detained in the EBI for three and a half years, the Court had made an award of EUR 3,000 under this head.

The Government submitted that an award of 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. In the instant case, that period was four years.

Having found a violation of a substantive Convention provision, the Court must now consider how Articles 41 and 46 are to be applied. The unusual situation has arisen whereby an applicant is attempting to bring proceedings in a domestic court aimed at securing a monetary award in respect of non-pecuniary damage for a violation of the Convention even before the Court itself has given judgment, notwithstanding the fact that in the light of the Court's findings in the cases of Van der Ven and Lorsé and Others, cited above, the instant case can be regarded as a repetitive or ‘clone’ case.

As regards claims for damage arising from a violation of a Convention provision, the Court cannot allow proceedings before it and proceedings in a domestic court aimed at precisely the same intended result to be actively pursued in parallel. It makes little difference in this respect whether such parallel domestic proceedings are already pending at the time when the application is lodged with the Court, in which case the application is inadmissible under Article 35 § 1 of the Convention, or whether the application is lodged with the Court first. The Court's decision, however, cannot be the same in both cases: the Convention does not contain any provision corresponding to Article 35 § 1 covering that second eventuality.

For the sake of clarity it is noteworthy that the rule that domestic remedies should be exhausted does not apply to just satisfaction claims submitted to the Court under Article 41 (formerly Article 50) of the Convention (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no. 14, pp. 7–9, §§ 15–16).

In deciding how to address the situation that the applicant has created, the Court must have regard to the object and purpose of the Convention. These are stated in the Preamble to the Convention, the most significant passage of which is the fifth paragraph, in which the signatory Governments declare that they are ‘resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration’ of 10 December 1948 (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 16, § 34).

The Court must next consider its task as an institution created by the Convention. The Court's task, as set by Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto. This it does by giving judgments and decisions interpreting the provisions of the Convention in specific cases on the basis of applications submitted under Articles 33 and 34 of the Convention by High Contracting Parties and persons, non-governmental organisations or groups of individuals claiming to be victims of violations of their rights, respectively, and by giving advisory opinions on questions within its competence at the request of the Committee of Ministers (Article 47 of the Convention; see also Decision on the Competence of the Court to give an Advisory Opinion, ECHR 2004-VI).

Under Article 41 of the Convention, the Court may afford just satisfaction to a party injured by a violation of the Convention or its Protocols if the internal law of the High Contracting Party concerned does not allow complete reparation to be made. However, the Court is enjoined to do so only ‘if necessary’. Consequently, although the Court is sensitive to the effect which its awards under Article 41 may have and makes use of its powers under that Article accordingly (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 176, ECHR 2006-…), the awarding of sums of money to applicants by way of just satisfaction is not one of the Court's main duties but is incidental to its task of ensuring the observance by States of their obligations under the Convention.

Seen in this light, there can be no doubt of the greater importance of Article 46 of the Convention in comparison with Article 41. Under Article 46, the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, the execution being supervised by the Committee of Ministers. One of the effects of this is that where the Court finds a violation, the respondent State has a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects thereof. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scordino, cited above, § 233). Furthermore, under the Convention, particularly Article 1, in ratifying the Convention the Contracting States undertake to ensure that their domestic law is compatible with the Convention (see Scordino, cited above, § 234).

In relation to a party injured by a violation of a provision of the Convention or its Protocols, a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Scordino, cited above, § 246).

At an individual level, as at the level of general measures, the Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, neither the Court nor for that matter the Committee of Ministers having the power or the practical possibility of doing so themselves. If, on the other hand, national law does not allow — or allows only partial — reparation to be made for the consequences of the breach, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Scordino, cited above, § 247).

It should be observed at this point that the Court makes, under Article 41, such awards as in its view constitute ‘just satisfaction’ for the violations which it has found. Once the Court's judgment has been executed in accordance with Article 46 — that is, once the necessary general and individual measures have been taken to put an end to the violation found and provide redress for its effects — any additional awards over and above those made by the Court are at the discretion of the competent domestic authorities. More specifically, once the Court has given judgment, found a violation of the Convention and awarded the applicant concerned compensation for damage under Article 41 for that violation, the Contracting State may — if it sees fit — grant the applicant concerned further compensation, either in the form of extra money or in another form such as mitigation of a sentence imposed, in addition to the award for just satisfaction under Article 41 of the Convention already made by the Court. This occurred for instance in the cases of Van Mechelen and Others (cited above, §§ 30–36) and Lorsé and Others (cited above, §§ 37–40). Such voluntary additional compensatory measures, however, do not have any basis in Article 41 or 46 of the Convention nor in any other provision of the Convention and its Protocols.

In the present case the Court considers that the nature of the violation found does not allow for restitutio in integrum in that — unlike a situation where criminal proceedings have been found to have infringed Article 6 of the Convention and a reopening of the criminal proceedings is possible under Netherlands law on the basis of that finding — the strip-searches complained of, which have not caused the applicant any pecuniary damage, simply cannot be undone. Consequently, only an award for non-pecuniary damage, to be determined on an equitable basis, can be envisaged.

Before examining the claim for compensation in respect of non-pecuniary damage submitted by the applicant under Article 41, and having regard to the circumstances of the case, the domestic case-law as regards civil actions brought by a number of successful applicants to Strasbourg and the evolution of its workload, the Court proposes to examine what consequences may be drawn from Article 46 for the respondent State in the instant case.

It is not normally for the Court to determine what may be the appropriate measures of redress for a respondent State to adopt in accordance with its obligations under Article 46. However, having regard to the fact that the violation which the Court found in the judgments in the cases of Van der Ven and Lorsé and Others, cited above, concerned a practice to which all persons detained in the EBI until 1 March 2003 were subjected, the Court would observe that general measures at the national level were undoubtedly called for in the execution of those judgments and that those measures had to take into consideration the entire group of individuals affected by the practice found to be in breach of Article 3. Furthermore, such measures should be such as to remedy the Court's finding of a violation in respect of a general practice, so that the system established by the Convention is not compromised by a large number of repetitive applications stemming from the same cause. Such measures must therefore include a mechanism for providing injured persons with compensation for the violation of the Convention established in the cases of Van der Ven and Lorsé and Others. In that connection the Court's concern is to facilitate the rapid and effective correction of a defect identified in the national system of human-rights protection. Once such a defect has been identified, the national authorities have the task, subject to supervision by the Committee of Ministers, of taking — retrospectively if necessary — the necessary measures of redress in accordance with the principle of subsidiarity under the Convention, so that the Court does not have to reiterate its finding of a violation in a series of comparable cases.

As to the Netherlands authorities' response to the Court's judgments of 4 February 2003 in the cases of Van der Ven and Lorsé and Others, the Court notes that the practice of weekly routine strip-searches, which was found to be in breach of Article 3, was abolished on 1 March 2003 and that it has found the new practice as regards strip-searches in the EBI, as applied since 1 March 2003, to be compatible with Article 3 (see Baybaşın, cited above). The Court further understands that, under domestic law, it is possible for detainees who have been subjected to this particular practice, found to be contrary to Article 3 in the cases of Van der Ven and Lorsé and Others, to bring a civil action against the Netherlands State in order to obtain compensation for non-pecuniary damage sustained as a result of the practice of weekly routine strip-searches, which has now been abolished.

Although it is not for the Court, but for the Committee of Ministers, to determine whether such measures are sufficient for the purposes of Article 46, it considers that these measures are likely to prevent further admissible applications to the Court stemming from the same cause.

The Court further understands, from the ruling of 12 February 2003 by the judge responsible for provisional measures and the subsequent judgment of 31 October 2003 of the Supreme Court (see paragraphs 39–40 above), and also from the judgment of 5 July 2003 of the Court of Appeal and the subsequent judgment of 18 March 2005 of the Supreme Court (see paragraphs 35–36 above), that proceedings before the Court concerning claims for just satisfaction filed by applicants under Article 41 do not form part of the closed system of legal remedies in the Netherlands domestic legal system, as in both these sets of civil proceedings — brought against the Netherlands State by successful applicants to Strasbourg in whose cases the Court had examined and determined claims for non-pecuniary damage under Article 41 — the domestic courts agreed to consider the applicants' claims for compensation in respect of non-pecuniary damage arising out of the violation found by the Court, and in both cases awarded compensation for non-pecuniary damage in addition to the award already made by the Court.

Having regard to the fact that the applicant in the instant case has already taken steps before the Regional Court of The Hague with a view to obtaining compensation for non-pecuniary damage sustained on account of being subjected to weekly routine strip-searches contrary to Article 3, the Court considers that in these circumstances this aspect of the case is not yet ready for decision. Without prejudging its determination of this part of the case, the Court has found no indication in the case file that the psychological impact of the EBI detention regime and the practice of weekly routine strip-searches on the applicant's mental health would be comparable to or worse than the impact they had in the cases of Van der Ven and Lorsé and Others, such as to warrant an award of the same or a higher amount for non-pecuniary damage. However, the proceedings concerning the applicant's request to the Regional Court of The Hague are still pending, and the Court wishes to take into account — in case it has to determine the applicant's claim under Article 41 in respect of non-pecuniary damage — the compensation for non-pecuniary damage that the applicant may obtain under domestic law (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225, p. 17, § 52).

Consequently, the question of the application of Article 41 is not yet ready for decision and should be reserved pending a final domestic decision on this matter, due regard being had to the possibility that on this point and during the domestic proceedings a friendly settlement may be reached between the respondent State and the applicant (Rule 75 § 1 of the Rules of Court).