EVRM-Hof veroordeelt Nederland wegens behandeling herniapatiënt die straf uitzat in gevangenis Aruba (en)
The European Court of Human Rights has today notified in writing a judgment1 in the case of Mathew v. the Netherlands (application no. 24919/03).
The Court held, unanimously, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights, in that:
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-the applicant was detained in solitary confinement for an excessive and unnecessarily protracted period;
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-he was detained for at least seven months in a cell which failed to provide adequate protection against the weather and the climate; and,
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-he had had to endure unnecessary and avoidable physical suffering in order to gain access to outdoor exercise and fresh air.
Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 10,000 euros (EUR) for non-pecuniary damage and EUR 3,000 for costs and expenses. (The judgment is available only in English.)
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1.Principal facts
The applicant, Eduardo Mathew, is a Netherlands national who was born in 1973. He is a kickboxing instructor by profession. As far as the Court is aware, he is currently living in Providence, Rhode Island, USA. The events in question took place on the Caribbean island of Aruba (off the coast of Venezuela), which is part of the Kingdom of the Netherlands.
On 9 October 2001 the applicant was arrested on Aruba on a charge of inflicting grievous bodily harm. From October 2001 until the end of April 2004 he was detained on remand in the Aruba Correctional Institution (Korrektie Inrichting Aruba), (KIA). During most of that time, he was in solitary confinement.
On 29 November 2001 an incident took place in which the acting KIA governor was very seriously injured (broken eye socket, cheekbone and skull) and for which the applicant was subsequently convicted of inflicting serious bodily harm.
Following the incident, the applicant was placed in solitary confinement for 35 days. Thereafter, on 4 January 2002, a special detention regime was imposed on him, aimed at keeping him away from the other prisoners. He was not allowed to leave his cell without handcuffs around his wrists and fetters around his ankles (the use of fetters was discontinued after a certain time). Contact with the outside world was also limited. On two other occasions after the applicant had, among other things, assaulted prison staff, he was also denied visits or use of the telephone for 28 days.
From the time when the applicant was first detained there until some time between August and October 2002, there was a large opening in the roof of the applicant's cell through which the rain penetrated. The cell was located on the second and top floor of the KIA prison building and exposed its occupant to the heat of the sun. Iced water was provided; there was, however, no air conditioner or other cooling system. There were no lifts.
As from June 2002 the applicant was found to be suffering from a serious spinal condition. Aruba's only neurosurgeon found that the applicant had a Lumbar Discal Hernia and considered surgery to be appropriate. He asked for the applicant to be examined by another neurosurgeon for a second opinion, which did not happen. The applicant was provided with a wheelchair on 14 August 2002, but permission to use it was withdrawn following an incident on 13 February 2003, when he ripped a piece of metal off his wheelchair and used it as a weapon against prison staff.
On 19 February 2003 the applicant began court proceedings requesting more comfortable detention conditions. Among other things, he complained that his cell was unsanitary and that he was made to walk down two flights of stairs to meet visitors, take outside exercise or go to hospital, and that he was denied physiotherapy and a wheelchair. A local court ordered the prison to review the need for continuing the special regime at regular intervals.
On 14 April 2003 the applicant was found guilty as charged on appeal by the Joint Court of Justice for the Netherlands Antilles and Aruba, which stated that it had imposed a considerably lower sentence (three years and six months instead of five years) than would normally be justified by the applicant's crimes, in view of the unusual severity of the regime imposed on him while on remand.
The applicant received physiotherapy in hospital from 23 May until 13 June 2003. It was intended he should continue to receive physiotherapy as an outpatient. However, his physiotherapy sessions were discontinued. The applicant maintained that his physical condition prevented him from walking from his cell to the vehicle which was to take him to hospital and from sitting up straight in the vehicle.
The applicant would normally have been eligible for early release on 27 January 2004. This, however, was refused him on grounds related to his behaviour in prison.
A physiotherapist who examined the applicant on 6 March 2004 described him as able, despite going nine months without treatment, to walk a distance of at least 90 meters and carry out complex physical actions such as twisting his body and walking stairs.
The applicant was released by order of the Minister of Justice of Aruba on 30 April 2004 (by which time his application before the European Court of Human Rights had been communicated to the Netherlands Government).
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2.Procedure and composition of the Court
The application was lodged with the European Commission of Human Rights on 5 August 2003.
Judgment was given by a Chamber of seven judges, composed as follows:
Bostjan M. Zupančič (Slovenian), President,
John Hedigan (Irish),
Corneliu Bîrsan (Romanian),
Margarita Tsatsa-Nikolovska (Macedonian),
Vladimiro Zagrebelsky (Italian),
Egbert Myjer (Netherlands),
David Thór Björgvinsson (Icelandic), judges,
and also Vincent Berger, Section Registrar.
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3.Summary of the judgment2
Complaints
The applicant complained that: he had been physically abused by prison staff and injured by the use of fetters on his feet; that he had been denied necessary medical assistance, a wheelchair and physiotherapy; he also complained about the length and conditions of his detention in solitary confinement and the location of and conditions inside his cell. He relied on Article 3 of the Convention.
Decision of the Court
Article 3
Admissibility
The Court observed that the Joint Court of Justice judgment of 14 April 2003 imposed a considerably lower sentence than would normally be justified by the applicant's crimes, to compensate for the unusual severity of the prison regime imposed on him. That, in the Government's submission, meant that the applicant could no longer claim the status of "victim" of an alleged violation of the Convention.
The Court accepted that the reduction was considerable. However, the Joint Court of Justice had stopped short of finding those conditions unacceptable in terms equivalent to those employed by Article 3 of the Convention. It could not therefore be said that the court had acknowledged either expressly or in substance that the applicant was a victim of a violation of Article 3. The Court therefore held, unanimously, that the applicant's complaint under Article 3 was admissible.
Merits
The Court's establishment of the facts
The facts and the evidence in the case were disputed.
Certain photographs showing the applicant, which were superficially suggestive of external violence committed against him (and which had previously been published in the Aruban press and on an Internet site), were denounced by the Government as fabrications. The Court found, after examining them closely, that they did not support the applicant's allegations of deliberate maltreatment.
Since his release from the KIA on 30 April 2004, the Court noted that the applicant had been treated for his back condition in the United States. It had not, however, been brought to the Court's attention that he had undergone surgery. Nor did surgery appear to have been prescribed for him at any time after his release.
The Court accepted, however, that since June 2002, if not earlier, the applicant had suffered from a serious spinal condition which probably made walking and other physical activity painful and difficult for him. Nonetheless, the Court could not find it established that the applicant was incapacitated to the point of immobility. Nor was the information available sufficient for the Court to conclude that the applicant's condition was caused or worsened by external violence.
As far as the Court was aware, no psychiatric or psychological examination of the applicant was undertaken. The Court nonetheless considered the applicant's mental state to be relevant to the merits of his case and therefore found it necessary to draw its own inferences. The applicant's behaviour in detention had been characterised by his continued inability to adapt to the exigencies of prison life and his lack of response to normal prison discipline. It was apparent that he had, while detained, been suffering from a disturbance, the precise nature of which the Court could not determine, which resulted in an increased propensity to recalcitrant and even violent behaviour.
Use of physical force
The Court could not find that the force used against the applicant in preventing or terminating violent episodes had gone beyond what was strictly necessary in the circumstances. Neither had the applicant satisfied the Court that the wounds on his ankles were the inevitable consequence of the use of fetters. The Court further accepted that the use of fetters was eventually discontinued in view of those injuries. The Court therefore found no violation of Article 3 as regards the use of physical force against the applicant and the injuries allegedly resulting from the use of fetters.
In establishing disputed facts the Court disregarded the applicant's criminal conviction of inflicting serious bodily harm. The fairness of the proceedings leading up to that conviction is the object of another application before the European Court of Human Rights, that is still pending.
Medical Care
The Court observed that Article 3 could not be interpreted as requiring a prisoner's every wish and preference regarding medical treatment to be accommodated. The practical demands of legitimate detention might impose restrictions which a prisoner would have to accept. Examination by a medical expert who had no links to the detaining authority was nonetheless an important safeguard against the physical or mental abuse of prisoners. The Court therefore considered that a prisoner's choice of physician should as a rule be respected, subject if need be to the condition that responsibility for any additional expense not justified by genuine medical reasons be accepted by the prisoner. Even so, there was no objection to requiring a medical practitioner to hold a valid license to practice - issued or recognised by the competent domestic authority as a condition for being granted access to a prisoner - provided always that such a requirement did not result in a denial of timely and adequate medical examination, treatment and advice.
Concerning the alleged denial of necessary medical assistance in the applicant's case, the Court did not find the absence of a second medical opinion regarding the need for surgery to be the fault of the Netherlands authorities, as much of the information available suggested that the applicant was apt to set preconditions for accepting medical treatment.
Concerning the applicant's wheelchair, the Court found that, on the evidence available, in the hands of the applicant a wheelchair was perceived on reasonable grounds as a threat to the safety of others. In those circumstances the Court held that the domestic authorities were entitled to consider it necessary, in the conditions existing at that time, to deny him the continued use of one.
The Court did not accept that the applicant was unable to go to hospital as an outpatient for physiotherapy and that he needed to be visited in prison. The Court accepted that transport to hospital caused the applicant discomfort at such a level that he might well have preferred to be visited by a physiotherapist in prison. It could not, however, find it established that the applicant's condition had dictated the latter course. The applicant was apparently capable of extreme physical resistance (ripping off a piece of metal from his wheelchair and using it as a weapon for example). Also, on 6 March 2004, a physiotherapist described the applicant as able, despite going nine months without treatment, to walk a distance of at least 90 meters and carry out complex physical actions such as twisting his body and walking stairs.
There was therefore no violation of Article 3 concerning a denial of necessary medical care.
Detention conditions
The detention regime imposed on the applicant on 4 January 2002 required him to spend the remainder of his detention in a situation amounting to solitary confinement, which involved far greater hardship than ordinary detention on remand.
It was apparent that the applicant was stubbornly uncooperative and much inclined to acts of violence against property and individuals. On the information available, the Court accepted that the KIA authorities found him impossible to control except in conditions of strict confinement.
The Court agreed with the Council of Europe's Committee for the Prevention of Torture that even for difficult and dangerous prisoners, periods of solitary confinement should be as short as possible. It had found in the past that complete sensory isolation coupled with total social isolation could destroy the personality and constituted a form of inhuman treatment which could not be justified by the requirements of security or any other reason. However, the prohibition of contact with other prisoners for security, disciplinary or protective reasons did not in itself amount to inhuman treatment or punishment
The applicant was subjected to the punishment regime in question because he could not adapt to an ordinary prison setting. Attempts by the authorities to remove its harmful effects were not effective.
Plainly the Aruban authorities were aware that the applicant was not a person fit to be detained in the KIA in normal conditions and that the special regime designed for him was causing him unusual distress. Admittedly, attempts were made, most conspicuously by the Joint Court of Justice, to alleviate the applicant's situation to some extent, but the Court considered that the Netherlands Government could and should have done more.
The Court accepted that accommodation suitable for prisoners of the applicant's unfortunate disposition did not exist on Aruba at the relevant time (it is only now being built). However, it was not Aruba but the Kingdom of the Netherlands which was responsible under the Convention for ensuring compliance with its standards. Judicial orders given in one of the three countries of the Kingdom - the Realm in Europe, the Netherlands Antilles and Aruba - could be executed throughout the Kingdom. The Court was concerned to find that, despite a request to that effect from the applicant, no attempt appeared to have been made to find an appropriate place of detention for the applicant elsewhere in the Kingdom.
The Court accordingly found that the applicant was subjected to distress and hardship of an intensity considerably exceeding the unavoidable level of suffering inherent in detention and amounting to "inhuman treatment".
The applicant's cell
The Court could not find it established that the applicant was unable throughout the entire period of his detention, which lasted two-and-a-half years, to do any cleaning of his cell himself. It noted in addition that the applicant did not deny that another prisoner was in fact appointed, at the prison's expense, to clean the committal cell periodically. In those circumstances the Court did not find the Netherlands to be responsible for the lack of cleanliness of the applicant's cell.
Referring to the opening in the roof of the cell through which the rain penetrated and the fact that the cell exposed its occupant to the heat of the sun, however, the Court found that it was unacceptable for anyone to be detained in conditions involving a lack of adequate protection against the weather and the climate.
On the evidence available, the Court found it established that it was painful for the applicant to negotiate the two flights of stairs in order to go to the exercise area for outdoor exercise and fresh air. It was understandable in those circumstances that the applicant preferred many times to forgo outdoor exercise rather than suffer the pain. Some arrangement should have been made whereby that could have been avoided. It had to be accepted that accommodation suitable for the applicant situated on the same level as the exercise area or accessible by a lift did not exist in the KIA at the relevant time. However, in the Court's opinion, the competent authorities ought to have considered the possibility of detaining the applicant in a place more appropriate to his physical condition, in one of the other two countries of the Kingdom if need be.
The Court could not find it established that there was a positive intention of humiliating or debasing the applicant. However, the Court considered that the conditions of detention which the applicant had had to endure must have caused him both mental and physical suffering, diminishing his human dignity and amounting to "inhuman treatment".
Conclusion
The Court therefore held, unanimously, that there had been a violation of Article 3 in that the applicant was kept in solitary confinement for an excessive and unnecessarily protracted period, that he was kept for at least seven months in a cell that failed to offer adequate protection against the weather and the climate, and that he was kept in a location from which he could only gain access to outdoor exercise and fresh air at the expense of unnecessary and avoidable physical suffering. There had, on the other hand, been no violation concerning the applicant's complaint that he had been deliberately maltreated, denied medical treatment or detained in unsanitary conditions.
The Court's judgments are accessible on its Internet site (http://www.echr.coe.int).
Registry of the European Court of Human Rights
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Press contacts: Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)
Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court's judgments.
1. Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.
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2.This summary by the Registry does not bind the Court.