Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved

The applicant was born in 1966 and is currently serving a prison sentence in the Netherlands.

On 17 February 1998 the applicant was detained in the Netherlands on the basis of a request for his extradition by the authorities in Germany, where he was suspected of having committed a bank robbery and, during his subsequent flight and pursuit by the police, of having taken several hostages and having shot and killed one person. On 4 November 1998 he was extradited to Germany where, by judgment of 21 May 1999, the Duisburg Regional Court (Landgericht) convicted the applicant of extortion, attempted homicide, homicide and hostage-taking and sentenced him to life imprisonment.

Pending the determination of a request under the Enforcement of [Foreign] Criminal Judgments (Transfer) Act (Wet overdracht tenuitvoerlegging strafvonnissen – “WOTS”) for the applicant to be allowed to serve his sentence in the Netherlands, where he had lived since early childhood, the applicant was transferred to the Netherlands on 4 July 2000.

On 3 October 2000, in accordance with the provisions of the WOTS, the Hague Regional Court (arrondissementsrechtbank) gave leave for the applicant’s sentence to be executed in the Netherlands and, considering that under the Netherlands sentencing rules a life sentence fitted the nature and seriousness of the offences, the circumstances in which they had been committed and the person and personal circumstances of the applicant, imposed a life sentence. The applicant filed an appeal on points of law against this ruling with the Supreme Court (Hoge Raad).

On 26 June 2001 the Supreme Court allowed the applicant’s appeal on points of law against the ruling and quashed the decision of 3 October 2000. It held that the Regional Court had failed to examine whether or not, with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment, the applicant’s situation in the Netherlands would be less advantageous than in Germany. It remitted the applicant’s case to the Amsterdam Regional Court for a fresh decision. At the time the application was lodged with the Court, the proceedings before the Amsterdam Regional Court were still pending.

Following his transfer from Germany to the Netherlands on 4 July 2000, the applicant was initially detained in an ordinary remand centre (huis van bewaring) in Rotterdam. On 5 December 2000 a number of items (a whet stone attachment for a rotary grinder, knotted sheets, a rope and a metal hook) were found in his cell. The applicant was subsequently transferred to the National Segregation Unit (Landelijke Afzonderingsafdeling) in the Nieuw Vosseveld Penitentiary Complex in Vught.

On 21 December 2000, on the advice of the special selection board of the maximum security institution (Extra Beveiligde Inrichting – “EBI”), the Minister of Justice decided to place the applicant in the EBI, which is part of the Nieuw Vosseveld Penitentiary Complex. His detention in the EBI was reviewed and extended by the Minister every six months. The applicant unsuccessfully challenged each decision to extend before the Appeals Board (beroepscommissie) of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing). On 1 April 2001 the Central Council was replaced by the Council for the Administration of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming).

On 27 May 2002, as he had done in respect of the previous decisions to extend, the applicant filed an appeal with the Appeals Board against the decision of 22 May 2002 extending his stay in the EBI by six months. He argued, inter alia, that the EBI detention regime was in breach of Articles 3 and 8 of the Convention, that he was suffering from sarcoidosis and that the environment in the EBI had a very negative effect on his health.

On 1 November 2002 the Appeals Board rejected his appeal. In so far as relevant, its decision reads as follows:

“On the basis of Article 6 of the Regulation on the selection, placement and transfer of detainees (Regeling selectie, plaatsing en overplaatsing van gedetineerden) of 15 August 2000, which entered into force on 1 October 2000, detainees may be placed in the maximum security institution if they:

a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes, or

b. in the event of an escape, would pose an unacceptable risk to society, the risk of escape in itself being of lesser importance.

... The Appeals Board considers as follows:

During an inspection of the [applicant’s] cell in the [Rotterdam] remand centre on 5 December 2000 a whet stone attachment [for an electrical device], a coil of ‘rope’ [made from] plaited strips of sheet and a long rope with a hook made from a broom handle, with an attached hook made from the aluminium handle of a floor sweeper, were found. In addition a crack was noted in the cell window. The seriousness and quite recent nature of these discoveries justify the finding that the [applicant] at present still poses an extreme risk of escape. In that connection [the Appeals Board] notes that the 1998 incidents mentioned by the [EBI] selection officer have not been taken into consideration in reaching this finding. Those incidents concern a knife found in January 1998 in a bus in which the [applicant] and three other detainees had been transported, some visitors of the applicant who in May 1998 remained in their car for a remarkably long time observing the detention facility, a fork going missing from the applicant’s cell and odd behaviour in the visitors’ room. Those incidents did not lead to the [applicant’s] being placed in the EBI at that time. Instead, the [applicant], after a stay in the National Segregation Unit, was transferred to an ordinary remand centre. It remains unknown whether the knife belonged to one of the detainees who had been travelling in the bus.

In view of the very violent crimes the [applicant] is suspected of having committed and the subsequent pursuit in Germany and the Netherlands during which persons were taken hostage, the [applicant] – in the event of an escape – would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes.

The Appeals Board, noting the above considerations, concludes that the [applicant] falls within the category [referred to in Article 6 (a) of the Regulation on the selection, placement and transfer of detainees].

As regards the [applicant’s] reliance on [the Convention], the Appeals Board considers that the EBI regime is not in violation of the prohibition set out in Article 3 of the Convention. Interference with the right to respect for private and family life set forth in Article 8 of the Convention is permitted as long as such interference is in accordance with the law and is necessary in a democratic society for, inter alia, the prevention of disorder and crime.

On the basis of the documents obtained it appears that the examination [to establish whether the applicant suffers from sarcoidosis] is still ongoing. In these circumstances, the argument [based on this medical condition] cannot (for the time being) succeed.

The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and that, weighing up all the interests involved, it cannot be considered as unreasonable or unjust.”

No further appeal lay against this decision.

By decision of 19 November 2002 the applicant’s stay in the EBI was extended by a further period of six months. He again lodged an appeal with the Appeals Board in which he argued, inter alia, that the EBI regime was in breach of Articles 3 and 8 of the Convention, in particular as regards strip-searches in the EBI and the conditions governing visits. He submitted that the EBI regime was having adverse effects on his mental and physical health.

On 25 March 2003 the Appeals Board dismissed the appeal. The relevant parts of the decision read as follows:

“In its decision of 1 November 2002 the Appeals Board found that the [applicant] continued to pose an extreme risk of escape. ... The Appeals Board notes that, since then, there have been no signs indicating a possible escape by the [applicant]. Noting this, it is of the opinion that at present lesser weight is to be attached to the discovery in December 2000 and that it can no longer be said that the [applicant] poses an extreme danger of escape.

However, in view of the very violent offences the [applicant] is suspected of having committed and the subsequent pursuit having taken place in Germany and the Netherlands, in which people were taken hostage and one person was killed, the [applicant], in the event of an escape, would pose an unacceptable risk to society.

The Appeals Board, noting the above considerations, therefore concludes that the [applicant] falls within the category [referred to in Article 6 (b) of the Regulation on the selection, placement and transfer of detainees].

As regards the applicant’s arguments based on Articles 3 and 8 of the European Convention of Human Rights, the Appeals Board points out that, under the [1999] Prisons Act, it reviews decisions by the selection officer, in the instant case the decision to extend the [applicant’s] stay in the EBI. Consequently, it does not review the underlying detention regime as such and, therefore, the examination of the question as to whether or not the regime is in violation of Articles 3 and 8 of the Convention [falls outside the scope of the present appeal proceedings]. The Appeals Board considers, in any event, that – having regard to the case-law of the European Court of Human Rights – it cannot be held that the EBI regime as it currently exists should be regarded as being in breach of the Convention.

It does not appear from the documents that the applicant’s medical condition represents a contra-indication for a longer stay in the EBI.

The Appeals Board, noting the above, finds that the decision to extend the applicant’s stay in the EBI is lawful and, weighing up all the interests involved, concludes – albeit on a different ground – that it cannot be considered as unreasonable or unjust.”

On 30 June 2003 the applicant was transferred from the EBI to another prison with a different regime.

On 10 August 2004 another individual – who had been detained in the EBI between 26 June 1998 and 24 December 2003 – brought a civil action in tort (onrechtmatige daad) against the Netherlands State before the Hague Regional Court. One of the grounds on which he claimed payment of compensation in respect of non-pecuniary damage for unlawful acts for which he considered the Netherlands State to be liable was that, from his arrest in March 1998 until the end of December 2003, he had been subjected to inhuman and degrading treatment on account of the conditions of his detention, including having had to undergo humiliating and unnecessary strip-searches. He based this part of his claim on, inter alia, the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven v. the Netherlands (no. 50901/99, ECHR 2003-II) and Lorsé and Others v. the Netherlands (no. 52750/99), the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as set out in two reports (see paragraphs 47-48 below), and a report drawn up on 10 October 2003 by academic researchers on the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraph 24 below).

On 11 July 2005 the applicant and eight other (former) EBI detainees applied to the Regional Court for leave to join the civil action against the Netherlands State. Their application related to the part of the claim concerning compensation for non-pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the EBI, including having had to undergo humiliating and unnecessary strip-searches. These civil proceedings are currently still pending and, to date, no decision has been taken on the applicant’s request to join the pending civil action.

An overview of the relevant domestic law and practice is given in the Court’s judgment of 4 February 2003 in the case of Van der Ven v. the Netherlands (no. 50901/99, §§ 26-35, ECHR 2003-II) and in Baybaşın v. the Netherlands ((dec.), no. 13600/02, 6 October 2005).

On 1 March 2003, in the light of the Court’s findings in its judgments of 4 February 2003 in the cases of Van der Ven (cited above) and Lorsé and Others (cited above), the EBI house rules (huisregels) were amended, with the result that the practice of weekly routine strip-searches accompanying the weekly cell inspections was abandoned. Under the amended Article 6(4) of the EBI house rules, strip-searches could be carried out at random during or directly after a weekly cell inspection.

As from 10 July 2003, pursuant to a ruling given on 7 July 2003 by the judge responsible for provisional measures (voorzieningenrechter) of the Hague Regional Court in summary injunction proceedings brought against the Netherlands State in June 2003 by thirteen EBI detainees, the random strip-searches were no longer linked to cell inspections and the EBI authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for. The situation of each individual detainee is now discussed at the monthly EBI staff meeting on detainees.

On 10 October 2003 researchers from the Free University of Amsterdam presented a report on a study, commissioned in January 2001 by the Minister of Justice, about the psychological impact of the EBI regime on the mental well-being of (former) inmates (see paragraphs 48-49 below). It concluded that the EBI regime affected the cognitive functioning of detainees in a negative manner, with particular reference to the speed of processing information and response inhibition. This was probably a result of the lack of stimuli in the detention situation. The report further concluded that the EBI regime caused more depression than a restricted community regime and that strip-searches were perceived as humiliating, constituting an extra burden for persons detained in the EBI. On the other hand, the EBI regime provided a better balance between rest and activity than a restricted community regime, as a result of which EBI detainees maintained a healthier life rhythm. In addition it had not been demonstrated that EBI detainees displayed more physical symptoms of persistent mental stress.

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 the latter has 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 plaintiff 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 plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff’s interests, or to general principles of proper administration (algemene beginselen van behoorlijk bestuur). An action in tort is subject to a limitation period of five years 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 several 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 considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the State arguing that the judge 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, via a civil action, of making the correctness of a [final] judicial ruling the subject matter of new proceedings, and thus to obtain a renewed examination in another manner 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 in 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 Prison Act 1953 (Beginselenwet Gevangeniswezen) as in force at that time) and it was not in dispute that this remedy offered sufficient procedural safeguards, the plaintiff’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 coaccused of a successful applicant in Strasbourg (Kostovski v. the Netherlands, judgment of 20 November 1989, Series A no. 166), the Supreme Court held:

“It is embedded in the [Netherlands] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should, but must, be executed. It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity, via a claim [for damage arising from tort] against the State, to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [criminal] proceedings leading to the decision and to have [the subject matter] reviewed by the civil courts.

Considering the obligations flowing from Articles 1, 5 and 13 [of the Convention] to secure the rights set out in Article 6 [of the Convention] and to provide an effective remedy in the event of a violation of those rights, an exception must be made to the above-mentioned rules should a ruling of the European Court [of Human Rights], which the criminal court judge could not take into account in his decision, prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article 6 § 1 [of the Convention].

When such an exceptional case occurs, immediate execution of the decision can no longer be permitted under the legal system, and the person convicted can institute interim injunction proceedings [before the civil court judge] seeking – depending on the circumstances – to have execution prohibited, suspended or limited. The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about, mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of the European Court [of Human Rights] indeed requires that the above-mentioned conclusion be reached.”

In this case, the Supreme Court accepted the Court of Appeal’s finding against the plaintiff 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. This 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 as follows:

“1. An application for revision of a final ruling (eindbeslissing) entailing a conviction which has obtained the force of res iudicata can be lodged:

3o. on the ground of a ruling of the European Court of Human Rights in which it has been established that [the Convention or one of its Protocols] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of Article 41 of [the Convention].”

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 can either itself determine the criminal charges after reopening of 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 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 of Judgments and Decisions 1997VII), 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 Hague Regional Court. 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 amount 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 Netherlands judge 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 brought by the Netherlands State, the Hague Court of Appeal 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 plaintiff in the amount of EUR 190,240, less EUR 13,613.41 already awarded by the Court. It awarded the second plaintiff EUR 127,120, less EUR 11,344.51 awarded by the Court, and the third plaintiff EUR 127,140, less EUR 11,344.51 awarded by the Court. The Court of Appeal held, inter alia, that:

“The finding of the European Court [of Human Rights] that full redress (volledige genoegdoening) by means of a ‘retrial’ in the Netherlands is not possible, means that the European Court may award compensation on grounds of equity (vergoeding naar billijkheid), but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage (volledige schadevergoeding). The State’s argument, that [the three plaintiffs] requested compensation for damage for the first time before the European Court and not previously before the domestic judge, and that the European Court would have taken into account in its judgement the same claims for damages (schadeposten) as those now in issue in the present procedure, fails because no rule exists prohibiting the bringing of a claim before the Netherlands judge seeking compensation for damage, a part of which – namely an award in equity – has already been awarded in separate proceedings before the European Court.”

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 Lorsé in that, during his stay in the EBI of 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 his 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 non-material damage on account of the treatment which had been found contrary to Article 3, the Court awarded him for nonpecuniary 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 Hague Regional Court, seeking an order against the State to cease 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. This decision, in its relevant part, reads:

“3.1. The plaintiff has an urgent interest in his claim. The civil court judge – in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [of the case], as the plaintiff claims that the State has acted unlawfully toward him, inter alia by continuing his detention.

3.2. For the determination of the claim, it is a fact that the State has violated the applicant’s rights under Article 3...

3.3. Under Article 41 of [the Convention] the applicant is entitled to reparation (rechtsherstel) in respect of this irreparable violation of the Convention. If need be, he can assert that right before the courts. The State is deemed to be acting unlawfully towards him if no suitable form of redress is provided.

3.4. The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and, if so, whether those measures are suitable and appropriate in this case.

3.5. [The judge responsible for provisional measures rejects] the argument of the State that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the State to execute rulings of the criminal courts, militate against this form of redress. In this system, no provision has been made to date for (a suitable response to) a violation of the kind at issue in the instant case. There have been no prior similar cases, and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case-law. In principle, early release or non-execution of a fine imposed may constitute a suitable form of redress for a violation of Article 3 of the Convention of the kind in issue. This exception to the closed system of legal remedies in criminal cases is, to that extent, consistent with the Supreme Court’s approach in its judgment of 1 February 1991 (NJ 1991, 413).

3.6. The State has referred to the financial compensation awarded by the [European Court of Human Rights] and to the satisfaction which, in the case of the applicant, lies in the fact that his complaint was declared well-founded [by the European Court of Human Rights]. However, these two elements do not form a suitable, and certainly not a sufficient, form of redress for the plaintiff. Consequently, they do not stand in the way of the claims being allowed. The plaintiff can request the domestic judge to order that additional measures be taken.

3.7. In reply to a question, the State stated that it was possible, in this respect, to consider measures such as the plaintiff’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure. ... Again, these options do not form an obstacle to allowing the claims. The first option does not constitute sufficient redress in this case, while the option of a pardon corresponds to (a request for) a concession rather than the granting of a right, which is what is at issue here.

3.8. In these circumstances, the State should release the plaintiff earlier than June 2004 [when the plaintiff becomes eligible for early release] and waive the execution of the sentence in its entirety. Having regard to the nature of the violation of the Convention which is an established fact, a form of redress (genoegdoening) which relates to the applicant’s liberty is more suitable, and in any event warrants greater priority than waiving payment of the part of the fine still outstanding.

3.9. No fixed standard exists for ‘offsetting’ the remaining part of the plaintiff’s prison sentence. There are no pertinent reference points on the subject in the existing legislation. This means that the amount of the compensation must be determined on an equitable basis (naar billijkheid). The seriousness of the violation [of the Convention] justifies reduction of the sentence by a period equal to 10% of the number of days for which the applicant was subjected to the regime in the EBI... This amounts to a reduction of 230 days (round figure)...

3.10. On the basis of this solution, the plaintiff’s claim should be rejected. Indeed, the plaintiff has no urgent interest in a provisional measure which will only take effect after about nine months [when the applicant has served his mitigated sentence]... It is assumed that the State (the Minister of Justice) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here. If need be, the plaintiff can apply again in due course to the judge responsible for provisional measures.

3.11. Each of the parties can in fact be deemed to have been ruled against.”

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 judge, 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. 330B) and Scozzari and Giunta v. Italy ([GC], nos. 39221/98 and 41963/98, ECHR 2000VIII), 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 judge 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 the payment of a sum of money. In cases such as the present one, where the violation found concerned the manner of execution of a custodial sentence, it could take the form of cessation of the execution of the sentence. The Supreme Court found that the order of the judge responsible for provisional measures to cease 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 LorséLorsé.

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 nonpecuniary damage, stating that he intended instead to pursue such claims before the domestic courts, the Court made no award for just satisfaction under those headings. 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 and payment of a fine of NLG 10,000 (EUR 4,537.80), to be replaced by 100 days’ detention in the event of non-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:

“4.4. ... the State has the obligation to provide redress if the European Court of Human Rights has found a violation of a Convention provision. Such redress can be provided entirely or in part within the framework of the revision procedure, amended for this purpose.

4.5. Having regard to the violation of Article 8 found by the European Court of Human Rights, the Supreme Court is of the opinion that revision is necessary for the purposes of redress. To that extent, the request is well-founded. ... The request is aimed primarily at having the Supreme Court declare the prosecution inadmissible, while quashing the judgment in respect of which revision is sought.

4.6. The Supreme Court cannot accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible, and the instant case cannot be considered as such. In this respect the petitioner relies mistakenly on [the Supreme Court’s judgment of 19 December 1995; NL 1996, no. 249]. In that case the Supreme Court held that, in certain circumstances, a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if, as a result of that breach, deliberately or owing to gross negligence of the defendant’s interests, the defendant’s right to a fair hearing has been violated. As the European Court of Human Rights, in its decision on admissibility [M.M.. v. the Netherlands (dec.), no. 39339/98] of 21 May 2002, preceding its judgment of 8 April 2003, declared inadmissible the [applicant’s] complaint under Article 6 of the Convention as being manifestly illfounded, it cannot be said that there has been a serious breach of the principles of proper proceedings as a result of which, deliberately or owing to gross negligence of the [applicant’s] interests, his right to a fair hearing has been violated.

4.7. Taking into account that, in the proceedings leading to the judgment of which revision is sought, there was no breach of Article 6 and that the contents of the recorded telephone conversations were not used in evidence, there is no ground for referring the case to another Court of Appeal under Article 461 of the CCP for the purposes of obtaining redress, as requested by the petitioner in the alternative.

4.8. In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation, as found by the European Court of Human Rights, the Supreme Court will, after accepting the [revision] request, determine the matter itself, in accordance with Article 467 (2) of the CCP, and reduce the fine imposed by the Court of Appeal in the following manner.”

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 alternative detention period, reducing the fine by 10% to EUR 4,000 and the duration of the alternative detention to 90 days.

The findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as regards the EBI, as set out in its Report on the visit to the Netherlands from 17 to 27 November 1997, together with the Netherlands Government’s response to those findings, are set out in the Court’s judgment of 4 February 2003 in the case of Van der Ven (cited above, §§ 32-35).

The CPT visited the Netherlands again from 17 to 26 February 2002 and, in the course of this visit, carried out a follow-up visit to the EBI. Its findings were the following (Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002, CPT/Inf (2002) 30, excerpts):

“33. At the time of the February 2002 visit, the Extra Security Institution (EBI) at the Nieuw Vosseveld Prison Complex was being renovated, and the inmates allocated to it were being held in the Temporary Extra Security Institution ((T)/EBI) building nearby (cf. paragraph 58 of CPT/Inf (98) 15).

In addition to paying a brief visit to the facilities undergoing renovation, the CPT’s delegation examined the regime currently being applied, and devoted attention to the procedures governing placement and extension of placement in EBI. In the course of the visit, interviews were held with all 14 inmates, the establishment’s management and staff, as well as representatives of the EBI Selection Board.

c. regime

Following its first visit to the EBI, the CPT expressed considerable concern about the regime applied within the institution. It recommended that the regime be revised, in particular as regards certain of its features: the group system (if not discarded, to at least be relaxed and inmates to be allowed more out-of-cell time and a broader range of activities); searching policies (to be reviewed in order to ensure that they are strictly necessary from a security standpoint); and visiting arrangements (to be reviewed, the objective being to have visits take place under more open conditions) (cf. paragraphs 61 to 70 of CPT/Inf (98) 15).

However, in their response (dated 1 March 1999) to the CPT’s visit report, the Dutch authorities defended point by point the different aspects of the regime being applied in the EBI (cf. paragraph 29 of CPT/Inf (99) 5).

In the course of the February 2002 visit, the Director of the Nieuw Vosseveld Prison Complex and the Acting Director of the EBI informed the CPT’s delegation that a limited number of modifications to the regime and its implementation had taken place. For instance, steps were being taken to increase staff/inmate communication through a training programme known as “Safety at the door”, as well as by the previously-mentioned adaptations of the exercise yards. Further, a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells. Another positive development was that the special “handcuffs regime” (cf. paragraph 8 of CPT/Inf (98) 15) had not been applied in respect of any inmate since 1999.

However, despite these welcome developments, the regime in the unit was essentially the same as in 1997, and the prison’s management acknowledged that there had been “no change in most of the rules”. Although the official allowance for activities was generous (50 or more hours per week), in practice, most inmates’ out-of-cell time did not appear to have increased (averaging 2 to 4 hours per day). The stringing of plastic curtain hooks on short rods, which was performed individually in the cells, continued to be the only work offered. It remained the case that body searches - including anal inspections - were performed on each prisoner at least once a week 13, a process which was invariably perceived as humiliating. Conditions under which visits and sessions with non-custodial staff took place also continued to be very restrictive. Inmates’ remarks to the delegation (e.g. “losing positivity”, lacking “future feelings”, “beginning to hate people from the heart”, and/or having to cope by being “mentally separate”) frequently echoed those made in November 1997.

To sum up, inmates held in the EBI remained subject to a very impoverished regime.

In an environment which is potentially hazardous to the mental health of prisoners, it is of critical importance to provide a varied programme of appropriate stimulating activities (including education, sport, work of vocational value, etc.). The CPT calls upon the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff.

Following a recommendation made by the CPT in its previous periodic visit report (cf. paragraph 70 of CPT/Inf (98) 15), the Dutch authorities commissioned the University of Nijmegen to carry out an independent study of the psychological state of current and former inmates of the EBI. A preliminary study completed on 17 April 2000 concluded that “an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible.” The Dutch authorities have indicated that such an empirical examination has in fact commenced and would be completed by Summer 2003. The CPT trusts that it will receive the results of the study in due course.

One point raised by the preliminary study may be noted, i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI. The Committee would like to receive the views of the Dutch authorities on this statement.

Each prisoner was also subjected to such a search before and after being interviewed by members of the CPT’s delegation.”

The Netherlands Government responded to these findings in the following terms (CPT/Inf (2003) 39, excerpts):

“The “Extra Security Institution” at the Nieuw Vosseveld Prison Complex

recommendations ...

- the Dutch authorities to make further efforts with a view to increasing out-of-cell time, allowing for more human contact, expanding the range of activities (work and education), and alleviating searching measures for prisoners held in the EBI. Less constrained contact should be encouraged with all staff (paragraph 39)

Response: Prisoners in the EBI spend a total of about 52 hours a week on out-of-cell activities, and these activities are no less varied than in other prisons. They include exercise, visits, sport, work, education and recreation. Not all prisoners take part in all activities. What they do depends partly on interest and ability. The work in the EBI is simple. However, it is difficult to provide work that is more varied and yet meets security requirements. In principle, work in the EBI is done jointly. The Government refutes the claim that, on average, prisoners participate in activities for no more than between two and four hours a day. In fact they spend an average of four to five hours a day in out-of-cell activities.

The Government agrees that prisoners and staff should have more contact. Fenced-off walkways for staff have now been erected in the exercise yards. They provide more opportunities for informal contact and interaction between prisoners and staff.

The number of searches has been sharply reduced since the opening of the EBI. Besides a weekly search during cell checks, searches are carried out after visits to areas containing potentially dangerous objects, such as the hairdresser’s or the doctor’s or dentist’s surgery, and after contact with the outside world, such as visits. Searches are still necessary from the point of view of security. The Government would point out that searches are also conducted in ordinary prisons.

On 4 February 2003, in two separate cases against the Netherlands, the European Court of Human Rights ruled 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.” (Van der Ven v. the Netherlands, Application no. 50901/99, ECtHR 4 February 2002, § 63; see also Lorsé et al v. the Netherlands, Application no. 52750/99, ECtHR 4 February 2002, § 74). These judgments and other considerations have prompted the Government to stop routine weekly searches in the EBI over a long period of time. The EBI’s regulations will be amended.

requests for information

- the results of the “empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners”, being conducted by the University of Nijmegen (paragraph 39)

Response: The study is expected to be completed by autumn 2003 as indicated. As soon as the findings are available, the Government will forward them to the Committee.

- the views of the Dutch authorities on the statement, made in the preliminary study carried out by University of Nijmegen, to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “contradiction in the policy” of the EBI (paragraph 39)

Response: The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime. However, opportunities to exercise influence are necessarily more restricted in the EBI than in other prisons because of the nature of the system. The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society. Placement in the EBI is mainly determined by considerations of safety and security. In this sense the EBI differs from other prisons. The emphasis on safety and security means that placement in the EBI does not depend on a prisoner’s behaviour but on the risk he represents.”


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Stefan Paciej, is a Polish national who was born in 1927 and lives in Lubań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 4 December 2000 the applicant applied to the Polish-German Reconciliation Foundation (“the Foundation”) for payment of a benefit on account of his deportation and forced labour during the Second World War. He submitted that from April 1942 to December 1943 he had been a forced labourer on a farm in Gerlachshain. In December 1943 he had been relocated to Königstein (near Dresden) where he had been required to work as a forced labourer for the company Grün&Bilfinger AG. He alleged that in Königstein he had been imprisoned in a penal camp (obóz karny).

The applicant’s request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act; GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation.

On 11 September 2001 the Foundation’s Verification Commission found that the applicant was eligible for payment of a benefit, his persecution falling under the 4th category which included persons who had been deported to Germany and subjected to forced labour in agriculture.

On 1 October 2001 the applicant appealed against the decision of 11 September 2001. He claimed that he had performed forced labour both in agriculture and later during his internment in the penal camp, and that the Verification Commission had failed to grant him compensation on account of the latter persecution. He submitted that by doing so the Foundation breached the relevant rules which required it to grant benefit to a claimant on account of a more favourable category of eligibility. The applicant produced three items of documentary evidence in support of his claims:

a/ a statement by a daughter of a German farmer where he used to work that in December 1943 he had been transported to a camp;

b/ a certificate of work for the company Grün&Bilfinger AG which attested, according to the applicant, that he had been interned in a camp;

c/ a certificate issued by the Polish Red Cross in June 1945 that the applicant had returned from a camp in Dresden.

On 18 April 2002 the Appeal Commission changed the decision of 11 September 2001. It held that the applicant’s persecution came under the 3rd category of eligibility, i.e. persons who had been deported to Germany and subjected to forced labour in industry. Consequently, the applicant was awarded DEM 4,000. The Appeal Commission informed the applicant that his request for consideration of his internment in the penal camp as falling under the 2nd category of eligibility could not be granted. It stated that the only persons who came under the 2nd category of eligibility were the detainees of those camps which were included on the list approved by the German Foundation. However, the applicant’s camp was not included on that list.

On 17 July 2002 the applicant appealed against the latter decision. He contested the fact that the Appeal Commission had not taken into account his forced labour during his internment in the penal camp.

On 27 September 2002 the Appeal Commission informed the applicant that his appeal could not be allowed. As regards the applicant’s submissions to the effect that his internment in a labour camp (obóz pracy) should have been classified as persecution falling under the 2nd category of persecution, it referred to its findings in the decision of 18 April 2002. The applicant was further informed that his certificate of work (Arbeitsleistungsbescheinigung) attested that he had worked for the company Grün&Bilfinger AG, but did not confirm that he had been detained in a penal camp.

The Government submitted that the applicant had been subjected to forced labour for the Grün&Bilfinger AG company in Königstein and had stayed in a camp for forced labourers. However, that camp had not been a penal camp and did not appear on the list of “other places of confinement” adopted by the German Foundation.

From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland.

The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act.

According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace.

Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006.

The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide:

Recognising

that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations,

that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it,

that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility,

that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments,

that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime,

the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...)

(1) A legally recognised Foundation with the name ‘Remembrance, Responsibility and Future’ shall be established under public law. (...)

(1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...)

(1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...)

(1) Eligible under this Law are:

persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour;

persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...)

(2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant’s eligibility may be substantiated in some other way.

(1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care. (...)”

Section 42 § 2 of the German Indemnification Act (Bundesentschädigungsgesetz) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982.

The German Foundation adopted the list of “other places of confinement” which contained, inter alia, penal camps. Persons detained in one of the camps included on the list were considered to come under the 2nd category of eligibility. The list was binding on all partner organisations, including the Polish Foundation.

On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000.

On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000.

The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3).

The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide:

“Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government’s efforts, former slave and forced labourers will receive in total DEM 1.812 thousand million, which constitutes a very positive outcome to the negotiations.

The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.”

The statutes of the Polish-German Reconciliation Foundation were amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001.

The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation’s decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5).

Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission.

In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation’s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility had been established but the benefit was not paid, a claim could arise under civil law.

In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that:

“The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.”

It further observed:

“There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.”

On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that:

“The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.”

In the reasons for its Resolution the Supreme Court found, inter alia, that:

“The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...)

There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation’s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...)

The need for extensive interpretation of the individual’s access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished).

The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.”