MATHEW v. THE NETHERLANDS - 24919/03 [2005] ECHR 652 (29 September 2005)

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

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

1. The case originated in an application (no. 24919/03) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Netherlands national, Mr Eduardo Alexander Antonio Mathew (“the applicant”), on 5 August 2003.

2. The applicant was represented by Ms J. Serrarens, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Ms J. Schukking of the Netherlands Ministry for Foreign Affairs.

3. The applicant alleged, in particular, that the conditions in which he was detained amounted to treatment violating Article 3 of the Convention.

4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

5. The applicant and the Government each filed observations on the merits (Rule 59 § 1).

6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Third Section (Rule 52 § 1).

7. On 17 March 2005 the Court decided to examine the admissibility and merits at the same time, in accordance with Article 29 § 3 of the Convention (Rule 54A § 3).

8. The applicant submitted claims for just satisfaction under Article 41 of the Convention and some factual information requested by the Court. The Government filed a response to these.

9. The applicant, Mr Eduardo A.A. Mathew, is a Netherlands national born in 1973. As far as the Court is aware, he is currently resident in Providence, Rhode Island, USA.

10. The applicant, a kickboxing instructor by trade who also had business interests, was arrested on Aruba on 9 October 2001 on a charge of inflicting grievous bodily harm. He was placed in detention on remand in the Aruba Correctional Institution (Korrektie Instituut Aruba, hereinafter “the KIA”).

Aruba is a “country” (land) of the Kingdom of the Netherlands (paragraph 126 below). It is one of a group of Caribbean islands known as the “Dutch Leewards”. Its climate is tropical.

11. The applicant and the respondent Government disagree on many of the events that occurred after the applicant was placed in detention.

12. It appears that on 16 November 2001 an altercation took place between the applicant and a prison guard, after which the applicant was placed in solitary confinement in the punishment cell (cachot).

13. The applicant alleges that on 17 November 2001 he was surreptitiously drugged, after which some guards came in and maltreated him. He states that a bag was placed over his head and that when he came to, he was lying on the floor in his own blood and was covered in urine. He also states that he was not let out of the punishment cell for fresh air until 29 November and that he never received any medical attention despite asking for it.

14. On 29 November 2001 a violent incident took place in which the then acting governor of the KIA, Mr B.F.C. Vocking, was severely injured. The applicant was subsequently charged with inflicting grievous bodily harm on him (see below). For his part, the applicant denies having harmed Mr Vocking; his version of events is that when entering his cell Mr Vocking bumped into a prison guard, Mr Janga, and fell to the floor.

15. On 4 January 2002 the interim prison governor, Mr F.A. Maduro, who had by this time replaced Mr Vocking, ordered a special detention regime for the applicant: he was to spend the remainder of his detention in the committal cell (gijzelaarscel), a solitary confinement cell located next to the punishment cell. In addition, the special regime applicable to the applicant was to comprise the following ten items:

“1. Under no circumstances may [the applicant] leave his cell without handcuffs and fetters;

2. Prisoner Mathew shall be taken out of his cell and locked back into it by no fewer than two members of staff;

3. Outdoor exercise (luchten) shall take place in the space located behind the multifunctional area during one hour a day, to be decided by the heads of department of the internal service or, in his absence, the C.M.K. team leader;

4. Telephoning shall be done by telephone no. 120, which shall be brought to Prisoner Mathew's cell;

5. Visits by, among others, counsel, rehabilitation workers (reclassering), the social worker, the medical service, spiritual counsellors, shall take place in his cell as much as possible;

6. However, it will be made possible to create a suitable area for the above persons;

7. However, if problems arise (mocht het spaak lopen) KIA will reserve the right to reverse item 6;

8. Visits by relatives (relatiebezoek) and church services shall take place normally, in the multifunctional area;

10. Nor shall he be denied mail, books, or for example circulating magazine subscriptions (leesmappen), after these have been censored.”

16. On 20 February 2002 the applicant's lawyers, Messrs Loth and Römer, wrote to the public prosecutor responsible, Ms Hemmes-Boender, complaining about the applicant's treatment leading up to the events of 29 November 2001. It was stated that Acting Prison Governor Vocking had entered the punishment cell with two prison guards, Mr Janga and Mr Van der Biesen, to interrogate him about some threats which he had allegedly made to a prison guard. The applicant refusing to co-operate, they had placed a bag over his head and beaten him, apparently with truncheons. As he lay on the floor, the applicant had also been kicked with booted feet. Ever since then the applicant had asked for medical treatment, which however had been withheld from him. In the course of the scuffle, Acting Governor Vocking had collided with Mr Janga and fallen to the ground, severely injuring his face. The applicant had then been locked in the committal cell, where he had later been visited by Messrs Loth and Römer. Conditions in the applicant's cell were revolting: the cell offered insufficient protection from the weather and the floor was covered in filth including rotting food scraps several days old. Even assuming that the applicant was abnormally aggressive, these conditions were tantamount to maltreatment; it was demanded on behalf of the applicant that appropriate action be taken to ensure detention in humane conditions. This letter was copied to the Governor of Aruba, the Aruban Minister of Justice, the Procurator General of Aruba, the President of the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of the Netherlands Antilles and Aruba, the Aruban parliament (Staten van Aruba), Mr Fabrice Kellens (member of the Secretariat of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)) and the KIA prison authorities.

17. Public Prosecutor Hemmes-Boender replied to this letter on 27 February 2002, stating that matters were not as serious as stated. The prison was being refurbished and the applicant himself refused to keep his cell clean. She promised that the glass fibre reinforced resin sheet covering the hole in the ceiling would be raised in order to improve ventilation.

18. On 26 June 2002 an MRI (magnetic resonance imaging) scan of the applicant was taken by the radiologist Dr C.E. Loo in the Dr Horacio E. Oduber Hospital in Aruba's capital, Oranjestad. The medical report drawn up notes degeneration of the fifth lumbar disc (discusdegeneratie L5/S1) and no root compression (geen wortelcompressie).

19. On 8 August 2002 a radiological examination by the radiologist Dr I.F.M. Lambertina of the Dr Horacio E. Oduber Hospital showed some lumbar lordosis (excessive backward curvature of the spine, causing concavity of the back) and dubious limited sclerosis (hardening) of the two S1 joints but no degenerative abnormalities.

20. On 10 September 2002 Dr Carlos A. Vallejo Lopez, the neurosurgeon at the Dr Horacio E. Oduber Hospital, wrote a note finding the applicant to be suffering from lumbalgia and prescribing “more mobilization” and “active physical therapy” for his lower back.

21. It appears that on 13 February 2003 an altercation took place in the prison courtyard, in the course of which the applicant sustained injuries. A medical report of the same date by one Dr Perez of the “Centro Medico Dr Rudy A.M. Engelbrecht” – a pre-printed form in Dutch – describes that the applicant suffered “maltreatment” (mishandeling). The report states that the applicant was found lying on the ground with a head wound and complaining of pain.

22. On 19 February 2003 the applicant's wife, Ms Arianna Iannuccilli, lodged an official complaint with the Aruba police of grievous bodily harm inflicted on the applicant by three prison staff.

23. On an unknown date, probably in April or May 2003, the applicant was referred by the prison general practitioner to the island's neurosurgeon, Dr Carlos A. Vallejo Lopez.

24. On 21 May 2003 Dr Vallejo Lopez examined the applicant. On 22 May and again on several occasions over the following few days he prescribed, in particular, outpatient physiotherapy and pain killers. On 22 May 2003 Dr Vallejo Lopez signed an application for physiotherapy for the applicant's lower back problems. A physiotherapist specifies the treatment as “mobilisation with walker [i.e. a walking frame]”.

26. On the same day the applicant was examined by the radiologist Dr Stojanov using magnetic resonance imaging. The report notes increased rupturing of the annulus fibrosus L5/S1 on the left side.

27. Another document of the same date, in an unidentifiable hand, contains the query “Got beaten?!”, notes pain in the applicant's lower back area and legs – it is queried whether this is simulated – and suggests mobilisation with a walking frame.

28. On 5 June 2003 Dr Vallejo Lopez wrote to the KIA asking for the applicant to be allowed to complete the physiotherapy treatment programme as an outpatient.

29. On 6 June 2003 Dr Vallejo Lopez wrote to A. de Veer, social worker, asking whether it was possible to transport the applicant to hospital twice a week for physiotherapy, surgery not being an option in the prison setting. On 13 June one Major F. Tromp replied, writing on the same note, that it has been agreed that KIA would make appropriate arrangements.

30. On 13 June 2003 the applicant was released from hospital with the following diagnosis (handwritten note by Dr Vallejo Lopez):

31. On the same date the interim prison governor, Mr Maduro, wrote to the hospital saying that a prison nurse would ensure that the applicant was taken to hospital for treatment twice a week.

32. It appears that it was agreed in a meeting the day before that arrangements would be made for the applicant to be taken to the rehabilitation department of the Dr Horacio E. Oduber Hospital twice a week.

33. On 23 June 2003 Drs Rodriguez Robell and Pérez Dopazo of the Aruba Public Health Department wrote to the interim governor of KIA asking that the applicant be given a wheelchair in order to prevent, in particular, falls like one that had taken place the week before.

34. Also on 23 June 2003 Prison Guard First Class Grovell, on behalf of the interim governor, imposed a punishment regime on the applicant for 28 days: the applicant was not to receive any visits and not to make use of the telephone. The applicant was stated to have maltreated prison staff with his walking frame and incited fellow inmates in the remand department to violence, these acts moreover being aggravated by having been premeditated.

35. On the same day another inmate, one Ignacio, complained to the Queen, the Minister of Justice of Aruba, the Public Prosecution Service and the CPT about an incident that had taken place the day before. It had been caused by the alleged refusal of the prison authorities to show Ignacio papers justifying the prolongation of his detention; he had asked to see them, but instead of showing him the papers, prison guards had maltreated him. This had been witnessed by the applicant, who had told the prison guards to stop. The applicant had not maltreated anybody: he had merely tried to block one of the prison guards with his walking frame to prevent further violence. This complaint was co-signed by ten other inmates including the applicant.

36. On 30 June 2003 another of the applicant's fellow prisoners, one Van der Biezen, signed a statement describing a fire that had broken out in the remand department, after which prison guards had come and maltreated the applicant.

37. On 1 July 2003 Dr Rodriguez Robell examined the applicant. He noted slight inflammations of the skin where the handcuffs had been and pain in the lumbar region from L-5 to S-1 which increased when the applicant moved his lower extremities, and set a diagnosis. He prescribed treatment as indicated by the specialist (i.e. Dr Vallejo Lopez), urgent palliative care, rest and continued physiotherapy.

38. On 3 July 2003 the interim prison governor, Mr Maduro, imposed a disciplinary punishment on the applicant. The punishment involved fourteen days' close arrest, commuted in view of the applicant's state of health to twenty-eight days without visits or telephone. The applicant was stated to be the intellectual author, with malice aforethought, of maltreatment of prison staff, inciting fellow prisoners to violence, threatening prison staff, failure to follow orders immediately, and an accomplice to arson and the destruction of public property. The punishment was to begin 21 July 2003, in view of the earlier disciplinary punishment imposed on 23 June.

39. On 4 July 2003 fellow prisoner Van der Biezen signed a statement to the effect that the prison management had produced a false case against the applicant.

40. On the same date the neurosurgeon Dr Carlos A. Vallejo Lopez wrote the following statement (original in English):

“Mr Alexander Matthew (sic), with Lumbalgia and Radicular pain at the level of L5-S1 (Lumbar Discal Hernia S5-S1) is under medical treatment with Physical Therapy, but his condition is not so good, specially the aspect of the pain. Considering the situation of the patient like prisoner (K.I.A. Aruba) it is very difficult to give guarantee that the medical treatment and Physical Therapy treatment are going in the normal direction.

Mr. Matthew has indication for surgical procedure, but this indication at the present is not so clear, because of the abnormal situation of the patient. I suggest to have a second opinion with another Neurosurgeon and then it will be possible to define this difficult case.

Considering that Aruba has only one Neurosurgeon, we have to explore the needs to get a second opinion with the Neurosurgeon that periodically is visiting the Island or one Neurosurgeon from abroad.

The need for a second opinion to evaluate the case of Mr. Matthew is Medically necessary.

41. On 5 July 2003 a fellow prisoner called Paesch signed a statement to the effect that fire had broken out in the remand unit, near the applicant's bed. Paesch blamed an unnamed fellow inmate. Guards had come in and beaten the applicant. He stated that the applicant had been handcuffed, fettered, beaten and treated with electric shocks. A statement dated 6 July describes maltreatment inflicted on the applicant: beating, fetters, handcuffs. According to a further statement by the same prisoner, dated 7 July, a guard called Moure threatened the applicant with death when he asked for his pills; Paesch did not remember the date on which this happened.

42. On 7 July 2003 the lawyer Mr David G. Kock wrote to the interim governor of the KIA noting that the applicant was once again detained in the committal cell. Pointing out that the Joint Court of Justice had held, in its judgment of 14 April 2003, that the conditions of the applicant's detention there bordered on the unacceptable, he demanded the applicant's transfer to another cell and improved conditions of detention.

43. On 18 October 2003 Ms Iannuccilli wrote to the interim governor of the KIA asking for the applicant to be examined by a doctor of his choice and offering to take responsibility for all costs incurred.

44. On 20 October 2003 she received a fax, on Aruba Prison Service stationery, which read as follows (original in English):

Your husband can be referred to any specialist of his choice in Aruba, as long as the specialist in question is registered in Aruba according the current law.

According to several medical reports Eduardo needs no surgery, he's supposed to have some medical treatments, but he won't cooperate.

Let's get that clear, if Eduardo won't cooperate in his healing, he cannot be forced to do so.

45. On 23 October 2003 Ms Iannuccilli wrote to the Governor of Aruba, Mr O. Koolman, informing him of the reply she had received and asking him to order the applicant removed from the committal cell without further delay and to have him seen by a specialist medical practitioner from abroad.

46. On 25 November 2003 Drs Ernesto Rodriguez Robelt and Porfirio Perez Dopazo wrote to the KIA prison authorities noting that the applicant had had difficulty in recent months attending physiotherapy sessions. The letter contains the following:

“And without wishing to violate any established rules of the KIA of which we are not aware, we propose and prescribe:

2. Co-operation of prison staff in helping the patient go for physiotherapy, because he is currently being kept in a place where he has to descend stairs and is therefore in danger of falling, which would further worsen his condition;

3. If for any reason the previous prescription cannot be followed, it will be necessary to transfer the patient to another place from where he does not have to go down stairs and to offer him a wheelchair, as already suggested in our previous request, so that he can move himself to the place from where he can be taken for physiotherapy.

4. To continue assisting him with the cleaning of his cell, as has been done until now.

Note: The patient suffers from a discal hernia (L5-S1), which, even if it does not result in paralysis of his lower extremities, is very painful, which is why the patient does not allow himself to walk or to adopt certain positions that cause him pain.”

47. On 5 January 2004 the applicant again wrote to Interim Prison Governor Maduro complaining that he was still being denied a wheelchair and physiotherapy and made to walk down two flights of stairs to meet his visitors despite his condition. He stated that his pain was so severe that he had difficulty sitting upright through a fifty-minute visit.

48. Apparently on 27 January 2004 the applicant was informed orally that he would not be granted early release. It is claimed that he has not been issued with a formal written decision. He has submitted a copy of an unsigned document sent by the registry of the First Instance Court of Aruba to the Aruba Minister of Justice, dated 16 January 2004, phrased in the following terms:

“Presenting herewith the documents sent to the Central Rehabilitation Board (Centraal College voor de Reclassering) relating to the liberation of EDUARDO ALEXANDER ANTONIO MATHEW, the Board has the honour of informing you as follows.

It appears from the appended reports that the above-mentioned MATHEW has acted contrary to the conditions for granting provisional release: in particular, causing grievous bodily harm to a member of staff, fleeing from the hospital during hospitalisation, failure to follow orders given by KIA staff, threats, insults, disturbances of order, peace and safety in the institution, agitation, destruction of property, etc.

The Central Rehabilitation Board therefore suggests that you consider not granting provisional release to EDUARDO ALEXANDER ANTONIO MATHEW, born on Aruba on 9 February 1973.” [emphasis in the original]

49. On 19 November 2001 the applicant wrote to the Supervisory Board (Commissie van Toezicht) of the KIA. He complained that Mr Vocking had ordered him placed in solitary confinement due to a misunderstanding and without hearing him first. He had been forced to see his lawyer in the punishment cell naked. He also complained that he had been maltreated on 17 November.

50. On 5 September 2002 the applicant, through his lawyer, complained to the KIA's Supervisory Board about the regime imposed on 4 January 2002 and the condition of the committal cell. Promises to improve these had not been honoured. Appended was a handwritten statement addressed to the interim governor of the KIA, Mr Maduro, labelling the treatment inflicted on the applicant “illegal”, “corrupt” and “tourcher” (i.e. torture); it was signed by a large number of other KIA inmates.

51. On 7 October 2002 the applicant, through his lawyer, wrote to the KIA Supervisory Board noting that the roof of the committal cell had finally been repaired, but that the other complaints set out in the letter of 5 September 2002 remained valid. The applicant had not been given outdoor exercise for four months and he was still denied the physiotherapy prescribed him.

52. On 30 October 2002 the applicant himself wrote to Ms E.M.D. Angela, the chairperson of the KIA Supervisory Board, complaining that despite the promises made by Public Prosecutor Hemmes-Boender in her letter of 27 February 2002 there had been no improvement in his situation. Since 14 June 2002 he had not been allowed fresh air, the prison staff refusing to carry his wheelchair downstairs. Physiotherapy was denied him by the KIA prison authorities, who refused to take the trouble to transport him to hospital. The lack of ventilation was causing him headaches.

53. On 19 August 2001 the applicant was arrested pursuant to an order of the public prosecutor on charges of violence committed against a former employee. He was placed in police custody and subsequently in detention on remand. He was placed in the remand section of the KIA, where he remained until he was released on 4 October 2001.

54. On 9 October 2001 the applicant was rearrested, this time for inflicting grievous bodily harm using weapons, and again placed in the remand section of the KIA.

55. On 15 October 2001 the applicant was taken to hospital by KIA personnel for treatment of stomach complaints. The applicant absconded from the hospital the following day. Later that day, accompanied by his lawyer, he returned to the KIA and gave himself up; he was given fourteen days' solitary confinement for escaping.

56. The Government have submitted a report by a prison guard according to which on 25 October 2001 the applicant refused to return to solitary confinement after outdoor exercise – in the words of the report, “for the umpteenth time” (voor de zoveelste keer) – and was accompanied back to his cell by several guards.

57. Another report by a prison guard, dated 12 November 2001, describes the applicant refusing to return to his cell and threatening violent retribution.

58. On 16 November 2001 the applicant and some fellow inmates refused to return to their cells for locking in. The prisoners broke down a partition to use parts of it as weapons. This led Acting Prison Governor Vocking to place the applicant in solitary confinement for seven days. The applicant was also denied telephone calls and outdoor exercise until further notice.

59. On 26 November 2001, upon being refused outdoor exercise, the applicant threatened the prison guards.

60. The incident in which Acting Prison Governor Vocking was badly injured took place on 29 November 2001. The Government state that the applicant deliberately broke Mr Vocking's eye socket, cheekbone and skull and caused him severe concussion by beating him with a fist and kicking him in the head. The Government point to the applicant's conviction by the Aruba First Instance Court and the Joint Court of Justice and the rejection of the applicant's appeal on points of law by the Supreme Court on 1 June 2004 (see below).

61. As a result of this violent altercation the applicant was given thirty-five days' solitary confinement. On 4 January 2002, after the end of this term, a special regime was ordered by the interim prison governor, Mr Maduro, which was intended to last the remainder of the applicant's detention in the KIA. The ten-point order, which was submitted by both parties, is quoted in extenso above (paragraph 15).

62. On 5 March 2002 the applicant's special regime was changed: the applicant would no longer be required to wear fetters as well as handcuffs when leaving his cell unless he endangered prison staff by using his feet. On 1 August 2002 an order was given granting the applicant two hours of outdoor exercise every day.

63. The applicant's demeanour did not, however, change for the better. He continued to threaten prison staff and transgress the rules. The Government submit reports which describe the applicant removing his handcuffs during outdoor exercise, hiding a mobile telephone in his cell and damaging the padlock on the door of his cell beyond repair.

64. On 2 August 2002 the applicant was asked to leave his cell so that the roof could be repaired. The applicant having stated that he could not walk, prison guards offered to carry him out on a stretcher. The applicant, however, refused: he was suffering from headaches and pain in his back and wanted to see a doctor. The applicant had been seen three days earlier, on 30 July 2002, by the prison doctor, Dr Ernesto Rodriguez; Dr Rodriguez had given him an injection and prescribed medicine. The applicant had also been seen on 1 August 2002 by the prison nurse, Ms Bowina H. Vos. After the applicant's refusal to be moved work on the roof of the cell was halted.

65. A report by a prison guard dated 12 March 2003 states that on 6 January 2003 at 1.30 a.m. the applicant was seen doing push-ups, apparently untroubled by his physical condition.

66. Violent behaviour was reported in the first half of 2003. One official report, by Prison Guard First Class Anthony Williams, relates the following events having taken place on 13 February 2003:

“On taking over from Prison Guard Semerel, the reporting officer was told that Prisoner Mathew, who was in a wheelchair, unhandcuffed, near the inner guard post, had been brought back and had to be locked up again. Around 3.10 p.m. reporting officer ordered Mathew to go to his cell with the help of two outdoor workers (fellow inmates). Mathew refused and informed the reporting officer that he needed to speak with the governor or a supervisor, otherwise he would not return to his cell. The reporting officer telephoned Prison Guard First Class J.M.A. Grovell and notified him of the situation. Grovell then informed the reporting officer that he would send reinforcements to get Mathew back into his cell. The reporting officer was joined by prison officers G. Weller and W. Beyde and again ordered Mathew to go to his cell otherwise he would be carried there. Mathew replied that he would not go to his cell and did not want the two designated, bona fide outdoor workers (fellow inmates) to touch the wheelchair. Knowing Mathew, the reporting officer took out his handcuffs in order to put them on Mathew so as to be prepared for the worst. Unfortunately the reporting officer only succeeded in handcuffing Mathew's right hand since Mathew began to put up fierce resistance and even ripped off a piece of the metal armrest on the wheelchair, which he brandished in the air, with the clear intention of using it as a weapon. At one point Mathew bit the reporting officer's right hand very hard, and the reporting officer responded by elbowing Mathew in the back of his head, but Mathew continued his fierce resistance, waving his hands and feet in the direction of the reporting officer and his colleagues O. Weller and W. Beyde. Beyde finally managed to pull the piece of metal out of Mathew's right hand. With the help of Weller and Beyde, Mathew was held firmly and carried in the direction of the committal cell. Mathew continued to offer fierce resistance by waving his hands and feet, and tried to throw the reporting officer and his two colleagues down the stairs. The reporting officer received a hard blow from the back of Mathew's head, resulting in a cut to the reporting officer's lower lip. While going down the stairs leading to the observation section, Mathew seized the opportunity to fasten the still open handcuff to the rail to prevent his being carried any further. By constantly moving his whole body, Mathew sustained injuries to the back of his head on the metal rail. W. Beyde pulled out his handcuffs in order to secure both of Mathew's hands, and the prisoner was then carried to his cell and locked up. As a result of Mathew's fierce resistance, the reporting officer sustained a broken finger among other injuries. Thus drawn up by the reporting officer under oath of office for forwarding to whomsoever it is deemed necessary.”

67. Apparently on 1 July 2003 an incident took place which was recorded in the following terms in an official report by Prison Guard First Class S.E. Vos:

“Prisoner Mathew was told three times by Prison Guard First Class L. Pemberton that he had to be transferred to the committal cell. Mathew got out of bed, remained standing (without a walking frame), persistently refused to go to the hostage cell, became insolent and began to attack the officers by kicking and punching them. The undersigned tried to grab the prisoner's hands, but Mathew punched the undersigned in the face. The reporting officer, with the help of Prison Guard Pemberton, resorted to force in order to handcuff Mathew so that he could be moved; this was not easy since Mathew offered fierce resistance. With great difficulty, the reporting officer and Prison Guard Pemberton managed to handcuff Mathew. He was then put on a stretcher so that he could be taken to the committal cell. On the way, Mathew became aggressive and insolent again and deliberately fell off the stretcher several times, with the clear intention of hindering his transfer. Once on the ground, Mathew began to threaten the reporting officer and officers present with death or murder. Mathew was put back on the stretcher. While being carried, Mathew spoke to the reporting officer and those present in English: 'ALL OF YOU GET FUCKED WHEN I COME OUT, I HAVE SIX MORE MONTHS TO DO, DON'T WORRY.' Upon reaching the committal cell, the handcuffs were removed and the prisoner was locked in the cell. As a result of the blows the reporting officer received from Mathew, the reporting officer had to go to the St. Nicolaas outpatient department to receive medical attention. Knowing Mathew, and in view of his past deeds, the reporting officer feels threatened and fears that Mathew will put his words into action. The reporting officer has therefore notified the criminal investigation authorities.”

The Government suggest that this may in fact be the incident referred to in the statement by one of the applicant's fellow prisoners, dated 30 June 2003 (paragraph 36 above).

68. By way of disciplinary punishment, the applicant was for each of these incidents denied private visits and the use of the telephone for twenty-eight days in lieu of fourteen days' solitary confinement which he would otherwise have received. These disciplinary punishments were executed consecutively between 23 June and 18 August 2003.

69. The Government deny all knowledge of any incident on 5 July 2003 (paragraph 41 above).

70. In the course of 2003 it was attempted to re-detain the applicant in a normal (multi-person) cell, but the problems were such that he had to be returned to the committal cell.

71. The Government state that since the applicant refused to keep his cell clean, a job normally left to the prisoners occupying a particular cell themselves, the prison authorities paid another inmate to do it for him.

72. On 27 April 2004 the Government informed the Court that the Governor of Aruba had decided to grant the applicant early release on the occasion of the Queen's official birthday on 30 April 2004. The applicant was in fact released on that date.

73. The Government state that the applicant reported stomach complaints from the beginning of his detention, but refused to take prescribed medicines and refused to give a blood sample.

74. In January 2002 it became apparent that the applicant was injuring his ankles deliberately by rubbing the fetters against them. A nurse treated the wounds with bethadine (a disinfectant) and sterile gauze. The applicant was twice seen by the prison doctor in connection with these complaints, on 24 January and 15 February 2002. On 5 March 2002 it was decided that the fetters would no longer be applied.

75. On 6 March 2002 the applicant saw the nurse, complaining of headaches and eye complaints; on 15 March he was taken to the out-patients department for these complaints. On 26 March he was given a check-up by the KIA medical staff.

76. On 31 March 2002 the applicant complained that he was suffering from stomach ache and passing blood. However, he refused to give a urine sample.

78. On 16 April 2002 the applicant went through his back while doing strenuous physical exercise. He was seen by the doctor and given pain killers. He was again seen on 19 April.

79. On 26 April 2002 the applicant refused treatment by a psychiatrist from Curaçao.

80. On 30 July 2002 the applicant was apparently examined by a doctor from Cuba, who found nothing wrong with him.

82. On 10 September 2002 the applicant was taken to hospital so that he could consult Dr Vallejo Lopez and Dr Molina. They examined him using X-ray and magnetic imaging scans. They found that the applicant was suffering from lumbago and prescribed physiotherapy.

83. A report by KIA nursing staff dated 21 January 2003 states, among other things, that physiotherapy has to be financed by the prisoners themselves and that the applicant has refused to meet the expense involved out of his own pocket; for that reason he is not being given such treatment. It also states that the applicant has not seen a psychiatrist because of preconditions which he set before he would agree to do so; finally, despite his allegedly poor physical condition, the applicant does not present the complications that might be expected in the case of a bedridden patient (including constipation, bedsores, poor hygiene – the applicant is able to take showers by himself –, loss of appetite and depression).

84. On 13 February 2003 the applicant had some sutures put in the back of his head. These were removed on 20 February.

85. In February and March 2003 the applicant again complained of back pains. The pain killers were not effective.

On 5 April 2003 the applicant was again seen by Dr Vallejo Lopez, who again prescribed physiotherapy.

86. On 21 May 2003 the applicant was hospitalised for intensive physiotherapy. He remained in hospital until 13 June 2003, it being the intention that treatment should continue in the KIA.

88. On 21 June 2003 the applicant stated that he had fallen on his back. He was taken to the outpatients department for treatment.

89. The applicant missed his appointments with a physiotherapist on 24 and 26 June and 1, 3 and 7 July 2003. He went to physiotherapy on 10 and 15 July.

90. Physiotherapy was resumed on 6 March 2004, after the applicant again reported back pains, but discontinued shortly afterwards because the physiotherapist could not identify the problem clearly.

91. Following intervention by the Supervisory Board (see below), physiotherapy was again resumed on 6 April 2004.

92. The Government state that the applicant first wrote to the Supervisory Board of the KIA on 20 January 2002. The Supervisory Board considered the applicant's complaints at its meetings of 30 January and 27 February 2002. It sent a reply to the applicant on 26 March 2002, which was phrased as follows:

Nearly all your complaints relate to the special regime in the KIA which applies to you since the incident with Mr Vocking on 29 November 2001. You are – presumably – aware of what the regime involves.

In view of all the circumstances of the case, the Board takes the view that the present regime is still necessary at this time for your safety and the safety of others. It has, however, been agreed with the interim governor of the KIA that it will need to be seen in future to what extent (depending on your behaviour and your demeanour, in particular vis-à-vis KIA staff) that regime can be relaxed. Everything depends on your behaviour and your demeanour.

93. On 5 September 2002 the applicant again wrote to the Supervisory Board, through his lawyer, complaining about the regime and the state of his cell.

94. By letter of 7 October 2002, again through his lawyer, the applicant acknowledged that the roof had been repaired but complained that he had not been allowed outdoor exercise for four months and that he had still not been given the prescribed physiotherapy.

95. On 30 October 2002 the applicant himself wrote to the Supervisory Board restating his complaints. On the same day the Supervisory Board inspected the applicant's cell and heard him in person about his complaints. This led the Supervisory Board to suggest to the interim governor of the KIA that the applicant be conditionally moved back to a regular cell. The interim governor promised to organise this.

96. Later, however, the interim governor withdrew this promise following the theft of X-rays from the hospital at the behest of the applicant and the applicant's refusal to accept the letter containing the conditions subject to which he would be returned to detention in regular conditions.

97. The Supervisory Board discussed this problem with the Aruban Minister of Justice, who instructed the interim governor to place the applicant in a regular cell. This instruction was obeyed.

98. However, after the applicant was placed in a ground-floor cell with other prisoners, an incident took place which led to the applicant's being returned to solitary confinement in the committal cell.

99. After the Supervisory Board received medical information from the applicant's wife, it requested the KIA governing body to ensure that the applicant receive physiotherapy. They received the reply that no physiotherapist was prepared to treat the applicant: the problem was that the applicant was not willing to meet the expense, and it had not been demonstrated that he or his family were indigent.

100. A physiotherapist was engaged by the Supervisory Board, one Mr Carti, who stipulated however that the Aruban Ministry of Justice should guarantee payment for his services. This condition was met and treatment began on 6 March 2004. The Government have submitted his handwritten report, which reads as follows (original in English):

Pt complained of too much pain to carry out traditional physical testing however able to stand/turn unassisted.

P – D/C physio. due to my inability to determine exactly what the problem is. PT carries out complex physical activities such as twisting lumbar spine and stairs & no or little complaints while trembles and complains of severe pain while massaging his back. He also states that he does not feel the heat from the Aloe heat lotion which was used to massage. My final impression is that physiotherapy at this time (by myself) is unable to help this patient.

101. On 14 June 2002 the Aruba First Instance Court delivered its judgment in the criminal case against the applicant. It convicted the applicant of two charges of inflicting grievous bodily harm and sentenced him to six years' imprisonment. The applicant appealed.

102. On 14 April 2003 the Joint Court of Justice gave judgment on the applicant's appeal against his conviction and sentence. It quashed the first-instance judgment of 14 June 2002. Deciding anew, it held that the applicant's conditions of detention on remand did not constitute grounds for declaring the prosecution inadmissible. It went on to find the applicant guilty of, firstly, having on 19 August 2001, together with someone else, inflicted grievous bodily harm on one M. (kicking and beating resulting in fracture of the nose and the zygoma) and, secondly, having on 29 November 2001, acting alone, inflicted grievous bodily harm on Mr Vocking (punching and kicking resulting in the fracture of an eye socket, the sinus, the cheekbones and the cranium, as well as severe concussion). The Joint Court of Justice's reasoning included the following:

“In determining the sentence the Joint Court of Justice will further consider the circumstances in which the suspect has been, and still is, kept detained.

The following is apparent in relation to the suspect's detention situation. On 16 November 2001 the suspect was placed in a punishment cell. Already at an earlier stage he was placed in a punishment cell, because of, among other things, an escape. His stay in the punishment cell has been prolonged twice for 7 days because of his failure to follow an order given by a staff member and for disturbing order, peace and security in the institution, respectively, until 30 November 2001. The latter prolongation related to an action of a number of detainees who refused to return to their cell after outdoor exercise. On 29 November 2001, the date [of the attack on Mr Vocking], solitary confinement was prolonged for another 7 days for threatening and spitting on a prison guard. Afterwards, solitary confinement was prolonged until 4 January 2002 for [the attack on Mr Vocking], so that the suspect has spent a total of 49 days in the punishment cell. By letter of 4 January 2002 the management of the KIA has let it be known that the suspect is to spend the remainder of his detention in the committal cell, subject to restrictive measures including his not being allowed to leave the cell without handcuffs and fetters. This measure was amended on 5 March 2002 in that only handcuffs were applied.

As regards the committal cell, it is apparent that the roof is made of corrugated plastic sheeting and that this roof was defective during at least part of the detention period. During [the suspect's] stay in the committal cell there has been no television, activities, work or sports. Moreover, outdoor exercise no longer takes place on a regular basis since the suspect has indicated that he is unable to walk.

The Joint Court of Justice considers that the applicant has established that during his period of detention on remand – which has lasted until today – he has been kept under an exceptionally severe regime. The [suspect's] continuous placement in a punishment cell, which began shortly after [his] detention, gives the impression that the interaction between the suspect and the staff of the KIA has led to a negative spiral, in the sense that an incident was followed by punishment, which in turn was followed by a reaction of the suspect, and so on. All this culminated in the maltreatment of Mr Vocking. It is understandable in itself that after such an act the KIA should not have wished, after having imposed a prolonged stay in the punishment cell, to place the suspect back in the normal detention regime. However, this does not alter the fact that prolonged detention in the punishment cell and the committal cell in restrictive conditions approaches the limits of what is acceptable, even assuming that these have not already been crossed. The Joint Court of Justice also considers it plausible that the detention situation has negatively influenced the suspect's health.

The above leads the Joint Court of Justice to impose a considerably lower sentence than would be justified by the crimes.

The suspect has also argued that he has been maltreated in detention. However, an investigation of [that allegation] falls outside the scope of the present proceedings.

Due to the conditions which the suspect has set for his co-operation in drawing up psychiatric reports and probation report (reclasseringsrapport), such reports are not available. The Joint Court of Justice is therefore in a position to consider the suspect's person and personal circumstances only to the extent that these are known from the case file and the hearing.”

103. The Joint Court of Justice indicated that it would normally have been minded, in view of the crimes committed, to sentence the applicant to five years' imprisonment, but that the sentence would be reduced to three years and six months in view of the conditions of his detention.

104. The applicant appealed on points of law (cassatie) to the Supreme Court (Hoge Raad) against this judgment. This appeal was dismissed with summary reasoning on 1 June 2004.

105. On 19 February 2003 the applicant brought summary civil proceedings in the First Instance Court of Aruba (Gerecht in Eerste Aanleg van Aruba) to secure his release from solitary confinement and restrictive conditions of detention.

106. The Aruba First Instance Court gave judgment on 12 March 2003 holding that it had no jurisdiction to consider the applicant's action in civil proceedings: the remedy open to the applicant was the “criminal law summary suit” (Article 43 of the Code of Criminal Procedure – CCP), which – since the applicant's appeal against his conviction and sentence was pending before the Joint Court of Justice – should be heard by that court also.

107. Accordingly, on 21 March 2003 the applicant lodged a request under Article 43 CCP with the Joint Court of Justice to be restored to ordinary prisoner status and for the restrictions to be lifted.

108. The Joint Court of Justice held a hearing on 16 April 2003. The applicant challenged all the judges on the ground that they had participated in decisions at first instance affecting him.

109. On 25 April 2003 the Joint Court of Justice rejected the challenge. The hearing on the merits of the applicant's request was resumed on 13 May 2003.

110. On 27 May 2003 the Joint Court of Justice gave an interlocutory decision on the applicant's request for the lifting of the restrictive conditions of detention. It adjourned the case, summoned the interim governor of the KIA as a party and set him a time-limit (17 June 2003) for a written statement of defence.

111. On 15 July 2003 the Joint Court of Justice gave a decision in the proceedings adjourned on 27 May. It ordered the interim governor to have regard to the following guidelines as regards the restrictions to which the applicant was subject:

“a. The need for detention in the committal cell should be evaluated at regular intervals, at least once a month. In the absence of incidents, transfer to the normal regime should be considered, it being reasonable to expect [the applicant] to abide by the conditions set down in writing by the governor.

b. Any use of irons outside the cell should also be evaluated at regular intervals, at least once a week. In the absence of incidents, this restriction should be discontinued.

c. [The applicant] should be offered the opportunity to go to the outdoor exercise and visiting areas. The Court does not consider it appropriate to oblige the KIA to carry [the applicant] to these areas or to enable him to receive visitors in his cell. [The applicant] has not denied that he can walk with a walking frame. Nor is it apparent from the medical statements that [the applicant] is not able to go to the outdoor exercise and visiting areas himself or that independent walking is itself harmful.

d. It is not apparent that [the applicant] has been subjected to special restrictions as regards censoring post.

e. Obviously [the applicant] should be given the medical care considered necessary by the physicians treating him. Incidentally, it is not apparent that this has been withheld from him.

f. The Joint Court of Justice would add the following. The said negative spiral has resulted in the applicant's being detained in difficult conditions. Even though he is not blameless in this regard, he should nonetheless be treated as humanely as possible. If, for whatever reason, outdoor exercise, receiving visits or other activities do not take place, then in order that the applicant's detention should remain 'within the limits of what is acceptable' the KIA must consider and decide each time whether measures compensating the loss may be offered, such as the use of a television or personal computer.

g. In so far as this is not already being done, a written record shall be kept of any future incidents which cause the restrictions to be maintained in force, as well as of the (reasoned) decisions referred to under f., in order that it can be determined in any future proceedings whether this decision has been complied with.”

112. On 17 July 2003 Dr Ernesto Rodriguez Robelt of the Aruba Public Heath Department wrote to Dr Vallejo Lopez inviting him as a specialist to give an expert opinion and advise on appropriate treatment.

113. On 8 August 2003 the applicant requested the Joint Court of Justice to release him from detention on remand.

114. On 2 September 2003 the Joint Court of Justice declared the request inadmissible, there being another procedure for that purpose. The Joint Court of Justice's reasoning included the following:

“3.2 Mathew has asked, in the alternative, that the Public Prosecution Service and/or the prison governor be ordered to transfer him to the formal detention regime applicable to the other prisoners. The Public Prosecution Service has no competence in this matter. After all, the actual execution of orders for detention on remand is the responsibility of the Country of Aruba, represented by the governor of the KIA. The request directed against the Public Prosecution Service will be dismissed for this reason.

3.3. It is clear from the decision of today's date given by the Joint Court of Justice on Mathew's other request, i.e. for the lifting of his detention on remand, that this request is not acceded to. That means that Mathew has a legitimate interest based on his alternative claim against the governor of the KIA (transfer to the 'normal detention regime').

3.4 The Country of Aruba has the responsibility to ensure that the execution of judicial detention orders takes place in accordance with the regulations in force. Mathew's complaints about the way [the orders for his detention are executed] may be rendered as follows:

(a) he is currently being kept in the committal cell for an indeterminate period;

(d) he has not been offered compensation as referred to in paragraph 2.6 under (f) of the decision of this Court of 15 July 2003;

3.5 In its decision of 15 July 2003 the Joint Court of Justice predicated that detention in the committal cell should be evaluated every month. This was based on the consideration that Mathew had been placed back into the committal cell in response to an incident. It has become clear in the meantime – since the prison governor has admitted as much at the hearing – that [the applicant's] placement in the committal cell should not (any longer) be seen as a response to an incident, but as – in the prison governor's perception – the only possible regime for Mathew. It has been argued in support of this proposition that Mathew is quite unsuited to detention on remand in community. This begs the question whether such a situation in fact exists, and, if so, what consequences it should have for the complaints raised in these proceedings by Mathew.

3.6. Ever since the moment Mathew was detained in the Aruba Correctional Institution there have been problems, in particular Mathew's unpredictable behaviour. Reports by prison staff mentioning recalcitrant behaviour, followed by the (sudden) use of violence by Mathew, are legion. The number of reported incidents is such that it may be concluded therefrom that it is no longer feasible to let Mathew undergo his detention on remand in community. It has become sufficiently plausible that there is no other possibility within the Aruba Correctional Institution, given the conclusion aforementioned, than to keep Mathew detained in the committal cell. It cannot be ruled out that at some point Mathew's demeanour and behaviour may show such a change that it may be possible to return to a communal regime, but the Joint Court of Justice sees no concrete indications that such is the case now or will be in the near future. That makes it pointless to set the prison governor a time-limit for reconsidering the matter.

3.7. As regards outdoor exercise and receiving visits, it does not appear that circumstances are any different from those noted at the time of the Joint Court of Justice's decision of 15 July 2003. That means that it can once again be considered established that Mathew is offered the opportunity for outdoor exercise and receiving visits in the visitors' area. It is up to Mathew to make use of it or not. In the absence of medical information to the contrary the Court assumes that Mathew is still able to reach the outdoor exercise and visitors' areas by his own efforts (op eigen kracht).

3.10. As it did at the time of its decision of 15 July 2003, the Joint Court of Justice again finds that it is not apparent that Mathew is denied necessary medical assistance. According to neurosurgeon Carlos A. Vallejo Lopez, in his letter of 4 July 2003, there is an 'indication for surgical procedure'. The detention situation, according to this letter, is a factor due to which the 'indication' is 'not so clear' at present. Although it is not quite clear to the Joint Court of Justice what is meant thereby, one thing is clear: the letter does not state that an operation is necessary now, without further delay. Already for that reason there is no need to order any measures. In addition, the public prosecution service and the prison governor have promised that Mathew will receive the necessary medical care. There is no indication that the public prosecution service and the prison governor will act in a way other than thus promised. For that reason also there is no need to order any measure.”

115. The KIA governor was ordered to make provision for the applicant to have his own television in his cell; for the remainder, the applicant's requests – including a request to be transferred to the Netherlands (the Realm in Europe) – were denied.

116. The KIA is reported by the Government to be capable of holding 250 prisoners. It comprises a dormitory for prisoners serving short terms of detention in lieu of unpaid fines and separate sections for female prisoners and juveniles. Adult male remand prisoners and convicts are typically kept in three-person cells. There are four single-prisoner cells intended for convicted prisoners serving very long sentences. There are four observation cells intended for mentally unstable prisoners; these tend to be occupied most of the time.

117. The committal cell in which the applicant was detained is described as being 7.40 meters long and 3 meters wide and equipped with a bed, a table, a chair, a lavatory and a shower. It is located on the second floor, directly under the roof.

118. A new extra security section is being added to the KIA; it is expected to be suitable for detaining aggressive prisoners.

119. The applicant was seen by Mr Michele Lancellotti, a chiropractor in Providence, Rhode Island, on 19 May 2004. He complained to Mr Lancellotti of severe lower back pain with numbness in his left leg and occasionally in his right leg. The pain prevented him from walking up and down stairs. He had difficulty getting up from a seated position and walking for any length of time. He further complained of neck pain, headaches, blurred vision and pain and cracking in both knees. He used a walking frame. Mr Lancellotti's report describes the applicant as, at that time, “totally disabled” and contains a plan for treatment.

120. Mr Lancellotti saw the applicant on subsequent occasions. The applicant has submitted records of visits dated 21, 24, 26 and 28 May; 2, 4, 7, 9, 11, 14, 17, 22, 24 and 29 June; 1, 6, 13, 19, 21, 23, 26 and 30 July; and 2, 4, 11, 13, 16, 19, 23, 27 and 30 August 2004. A record of a re-evaluation undertaken by Mr Lancellotti on 3 September 2004, based on magnetic resonance images and the applicant's subjective pain complaints expresses the opinion that the applicant “has a permanent physical impairment of the body as a whole” caused by maltreatment and neglect; progress is slow.

1. A man of very muscular build, stated to be the applicant, lying prostrate on a floor, clad only in underpants, with another person's foot on his head.

2. The same man lying prostrate on a floor, with large spatters of a red substance around his head.

The red spatters are not visible on the first photograph. No laceration or other injury is discernible on either photograph, although the first shows dark patches on the man's left shoulder and left thigh that might be bruising.

122. The Government do not deny that the man shown on the photographs is the applicant but they state that the photographs are bogus. They submit that the boot and the trousers worn by the person holding his foot on the applicant's head (who clearly is also the person taking the photograph) in photograph no. 1 are identifiable as part of the uniform worn by prison staff: it is apparent, therefore, that the applicant has bribed a member of the KIA staff to take the pictures and smuggle them out of the prison.

123. The photographs were published, with others also stated to be an accurate reflection of the treatment meted out to the applicant and conditions in the KIA generally, in the Aruban press and on an internet web site. These other published photographs include one of a man's ankle that appears to be bleeding from a small laceration and one of a hole in a roof which is only partially covered by a grating and a sheet of corrugated translucent material.

124. The publication of these photographs prompted the interim governor of the KIA, Mr Maduro, to lodge a criminal complaint of libel with the Aruban police on 23 July 2002. The police investigation was eventually discontinued, with the permission of the public prosecutor, on 6 December 2002. Ms Iannuccilli was suspected of involvement in the matter but no prosecution was brought.

125. Provisions of the Charter for the Kingdom of the Netherlands (Statuut voor het Koninkrijk der Nederlanden) relevant to the present case provide as follows:

Noting that the Netherlands, Suriname and the Netherlands Antilles declared of their own free will in 1954 that they wished to receive a new legal order in which they take care of their own interests independently and take care of their common interests and provide mutual assistance on an equal footing, and have decided jointly to draw up the Charter for the Kingdom;

Noting that the bond under this Charter with Suriname has been terminated with effect from 25 November 1975 ...;

Noting that Aruba has declared of its own free will that it accepts this legal order as a country;

Have decided jointly further to determine the Charter for the Kingdom as follows.”

“The Netherlands, the Netherlands Antilles and Aruba shall give each other aid and support.”

“Judgments given by a court in the Netherlands, the Netherlands Antilles or Aruba, judicial orders and executory copies of official documents (grossen van authentieke akten) drawn up there can be executed throughout the Kingdom, with due regard to the legal provisions of the country where execution takes place.”

“1. The Netherlands, the Netherlands Antilles and Aruba shall conduct their own affairs independently.

2. The common Code of Criminal Procedure of the Netherlands Antilles and Aruba

126. Article 43 of the common Code of Criminal Procedure of the Netherlands Antilles and Aruba provides, in relevant part:

“1. In all cases in which a measure (voorziening) is necessary in the interest of the proper administration of criminal justice (een goede strafrechtsbedeling) which the Code itself does not provide for, a request for such a measure can be made by the suspect or by the person who has an interest that directly concerns him personally.

5. The measure may include an order or a prohibition as the case may be, also as regards future behaviour.

6. The decision shall be given as speedily as the interest of the case requires.

8. The court shall be competent to order the provisional execution of its decision, notwithstanding any appeal.

1. The European Prison Rules (Appendix to Committee of Ministers Recommendation No. R (87) 3)

26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general health administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.

2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be a staff of suitably trained officers.

39. The use of chains and irons shall be prohibited. Handcuffs, restraint-jackets and other body restraints shall never be applied as a punishment. They shall not be used except in the following circumstances:

a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise;

b. on medical grounds, by direction and under the supervision of the medical officer;

c. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority.”

128. The following is excerpted from the 2nd General Report of the CPT (CPT/Inf (92) 3):

“53. Prison staff will on occasion have to use force to control violent prisoners and, exceptionally, may even need to resort to instruments of physical restraint. These are clearly high risk situations insofar as the possible ill-treatment of prisoners is concerned, and as such call for specific safeguards.

A prisoner against whom any means of force have been used should have the right to be immediately examined and, if necessary, treated by a medical doctor. This examination should be conducted out of the hearing and preferably out of the sight of non-medical staff, and the results of the examination (including any relevant statements by the prisoner and the doctor's conclusions) should be formally recorded and made available to the prisoner. In those rare cases when resort to instruments of physical restraint is required, the prisoner concerned should be kept under constant and adequate supervision. Further, instruments of restraint should be removed at the earliest possible opportunity; they should never be applied, or their application prolonged, as a punishment. Finally, a record should be kept of every instance of the use of force against prisoners.

56. The CPT pays particular attention to prisoners held, for whatever reason (for disciplinary purposes; as a result of their 'dangerousness' or their 'troublesome' behaviour; in the interests of a criminal investigation; at their own request), under conditions akin to solitary confinement.

The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible.

129. The applicant – who initially did not have the assistance of a legal practitioner – originally alleged violations of Articles 3, 5, 8, 9, 10, 11, 12, 19 and 25 of the Universal Declaration of Human Rights. In his observations in reply to those of the Government, he withdrew all complaints other than those subsumable under Article 3 of the Convention.

130. The Court will consider the case within the limits drawn by the applicant. It sees no reason to rule on any further complaints of its own motion.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

131. The applicant alleged violation of this provision in that he had been physically abused, placed in solitary confinement in abject conditions, and denied urgently needed medical treatment. The Government denied this.

132. The Government submit that the application is inadmissible. They draw the Court's attention to the fact that in determining the applicant's sentence the Joint Court of Justice took the conditions of the applicant's detention into account and reduced the time which he would have to spend in prison by a very substantial proportion. This, in their view, constitutes sufficient redress for any damage resulting therefrom. Consequently the applicant cannot any longer claim to be a “victim” of any violation of the Convention.

133. The Government, in their observations, present a version of the facts very different from that presented by the applicant. The differences are mentioned above as appropriate.

134. The Government argue that the application is unfounded on the merits. They submit that the “minimum threshold of severity” beyond which there is a violation of Article 3 of the Convention has not been transgressed. They compare the present case to that of Messina v. Italy (No. 2) (dec.), no. 25498/94, ECHR 1999-V, in which a regime keeping a particular prisoner separate from his fellow inmates which had been instituted for security reasons, and which had lasted longer than the detention of which the applicant now complains, was held by this Court to be within acceptable limits. The present applicant was of a very dangerous and violent disposition, which made the special regime applied to him necessary; the island of Aruba possessing no facilities suitable for long-term detention other than the KIA, it was unavoidable to detain him in the conditions he now complained about.

135. The applicant was not denied necessary medical treatment. His health was at all times monitored by the KIA medical service and he was seen regularly by the prison doctor and nursing staff. The applicant's medical problems, in so far as the applicant was not shamming, either already existed when the applicant was first detained, or were self-inflicted, or were caused by the applicant's refusal to accept appropriate treatment.

136. The applicant's claims of maltreatment were exaggerated. Where violence had been used against the applicant, this had been made necessary by the applicant's own unruly behaviour and had not been disproportionate in the circumstances.

137. The applicant takes the view that he can still claim the status of “victim” of a violation of Article 3 of the Convention. While it is true that the Joint Court of Justice reduced his sentence in view of the extreme conditions of his detention, this reduction was intended to compensate only for the isolation in which he was then being kept. It could not and did not compensate for the physical and mental harm resulting from maltreatment and neglect of his physical complaints.

139. Thus, the applicant denies that his physical condition allowed him to take showers unaided and do push-ups. He was unable to do either. The official record in which the applicant is recorded as having done push-ups is dated two months after the facts which it alleges; the prison staff member whose name appears on it as its signatory is stated to have later told the applicant that he never drew up any such report.

140. Nor was the applicant able to keep his cell clean; he admits that another prisoner did this for him, once a week, but the inmate in question was mentally handicapped and incapable of cleaning properly.

141. The applicant denies having been heard by the KIA governor (or interim governor) at any time after 16 November 2001; in his submission, the reports alleging misbehaviour after that date are largely based on falsehood. Thus, the applicant denies having removed his handcuffs, hidden a mobile telephone and damaged the padlock on the door of his cell, or attacked prison staff. He also denies having refused to allow the roof of his cell to be repaired; he had merely asked to be transferred to another cell while this was done.

142. The applicant was briefly transferred to a dormitory with other prisoners in 2003. A fire broke out there – caused by some other inmates – for which the applicant was blamed, wrongly and without a proper investigation, after which the applicant was clapped in irons, beaten and taken back to the committal cell.

143. The applicant alleges that he at no time refused medical examinations or treatment, but did protest against the conditions in which these were to take place. He maintains that he was left without medical treatment. He admits that he was examined by a Cuban doctor but denies that any doctor ever said that there was nothing wrong with him.

144. The applicant denies having refused to pay for physiotherapy. Prisoners requiring such treatment were usually taken to a physiotherapy practice outside the prison where they received it free of charge; the applicant, however, was not fit to walk to the vehicle that would take him there, or to sit in it. Physiotherapy in prison would cost him 750 Aruban florins per session, and he would require two sessions each week; this he could not afford. By the time the physiotherapist Mr Marti was brought in from the outside, the applicant's condition had deteriorated too far and in any case the causes were unclear to Mr Marti.

145. The applicant denies having deliberately injured himself with his fetters. The injuries were caused by the sharp edges of the irons and have left scars on his ankles which are still visible.

146. The applicant denies having refused to see a psychiatrist in April 2002. In 2003 he agreed to see a psychiatrist on condition that the conversations were recorded on tape or witnessed by his lawyer, this in order that his statements not be distorted as had happened before.

147. Although admittedly the detention under an especially restrictive regime of the applicant in the case of Messina had lasted longer than that of the present applicant, the impact on the health of the present applicant was more serious. Moreover, the applicant Messina had more opportunity to enjoy the company of other prisoners and family and to take outdoor exercise, and he was not maltreated or denied necessary medical treatment.

148. The Court must first consider the Government's preliminary objection that the applicant can no longer be considered a “victim” of a violation of Article 3 of the Convention, if violation there be, given that the Joint Court of Justice sentenced him to three years and six months' imprisonment instead of the five years which his crime would otherwise have justified, the reason for the reduction being precisely his conditions of detention.

149. According to the Court's well-established case-law, an applicant's status as a victim may depend on compensation being awarded at domestic level on the basis of the facts about which he or she complains before the Court and on whether the domestic authorities have acknowledged, either expressly or in substance, the breach of the Convention. Only when those two conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see, as a recent authority, Riepl v. Austria, no. 37040/02, § 32, 3 February 2005). The Court accepts that a reduction of a prison sentence commensurate with the harm complained of may constitute “compensation” in this sense (cf. Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, p. 31, § 67).

150. As the Government correctly point out, the judgment delivered by the Joint Court of Justice on 14 April 2003 contains the following passage:

“The Joint Court of Justice considers that the applicant has established that during his period of detention on remand – which has lasted until today – he has been kept under an exceptionally severe regime. The [suspect's] continuous placement in a punishment cell, which began shortly after [his] detention, gives the impression that the interaction between the suspect and the staff of the KIA has led to a negative spiral, in the sense that an incident was followed by punishment, which in turn was followed by a reaction of the suspect, and so on. All this culminated in the maltreatment of Mr Vocking. It is understandable in itself that after such an act the KIA should not have wished, after having imposed a prolonged stay in the punishment cell, to place the suspect back in the normal detention regime. However, this does not alter the fact that prolonged detention in the punishment cell and the committal cell in restrictive conditions approaches the limits of what is acceptable, even assuming that these have not already been crossed. The Joint Court of Justice also considers it plausible that the detention situation has negatively influenced the suspect's health.

The above leads the Joint Court of Justice to impose a considerably lower sentence than would be justified by the crimes.”

The Court accepts that the reduction, from five years to three years and six months, is indeed considerable.

151. Even so, the judgment stops short of finding those conditions unacceptable in terms equivalent to those employed by Article 3 of the Convention. It cannot therefore be said that the Joint Court of Justice acknowledged either expressly or in substance that the applicant was a victim of a violation of Article 3 of the Convention.

153. The Court further considers, in the light of the parties' submissions, that the application raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of its merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

154. Allegations of ill-treatment must be supported by appropriate evidence (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 70, ECHR 2005-...).

155. The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003-V (extracts)).

156. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems that use that standard: as applied by the Court, it has an autonomous meaning. The Court's role, be it remembered, is not to rule on criminal guilt or civil liability but on Contracting States' responsibility under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties' submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, as a recent authority, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, 6 July 2005).

157. The Court would add at this point that it sees no need to establish the accuracy or otherwise of the applicant's explanation of the incident of 29 November 2001 in which the KIA's then acting governor, Mr Vocking, was severely injured (paragraph 14 above). The applicant has been convicted and sentenced in connection with this incident; he has lodged a separate application (no. 43805/04) to complain about the criminal proceedings. The Court's decision in the present case does not depend on this parallel question and does not prejudge that other application.

158. The Government denounce the photographs which the applicant has submitted (paragraph 121 above) as fabrications created with the unlawful co-operation of an unidentified member of KIA prison staff and smuggled out of prison.

159. The Court will not concern itself with the way in which the applicant (or his wife as the case may be) obtained the photographs. Its only concern is to determine whether they reflect the truth, and if so, to draw the appropriate conclusions from them.

160. The Court notes the appearance of red spatters covering and surrounding the applicant's head, superficially suggestive of severe bleeding, on only one photograph not on both.

161. In neither photograph has the Court found any traces of wounds capable of explaining bleeding as profuse as that which the second photograph suggests. The only apparent marks on the applicant's body are a number of dark patches on his skin which may be bruising.

162. It is noted in addition that the presence of any great quantity of spilt blood surrounding the applicant's head is not consistent with any harm which the applicant is reported to have suffered before 13 February 2003. On that day the applicant, resisting attempts to take him back to his cell, reportedly struck a prison guard in the face with the back of his head and sustained an injury requiring no fewer than eleven sutures (paragraphs 66 and 84 above). The back of the applicant's head is clearly visible on the second photograph, but no injury can be seen.

163. It is thus open to serious doubt whether the spatters shown are in fact the applicant's blood, or indeed whether they are blood at all. 164. Another photograph, which was published on the internet as one of a set of pictures mentioned by the Government in their observations, shows the applicant's ankle bleeding from a flesh wound.

165. Even if it is accepted that the latter photograph shows a genuine injury, which the Government do not deny, it does not give any information capable of explaining the cause.

166. The applicant denies the veracity of a considerable number of official reports drawn up by KIA officials. These are reports which describe misbehaviour sometimes including violence on the applicant's part. He also denies having been able to perform push-ups and take showers unaided.

167. The Court has difficulty accepting without proof the existence of what would, if the applicant's denials were to be accepted at face value, constitute a conspiracy encompassing all KIA prison staff with whom the applicant came into contact, including nursing staff, all acting under the responsibility of the interim governor and keeping up an elaborate pretence for more than two years.

168. As against the reports which describe the applicant displaying unruly behaviour, only written statements by some of the applicant's fellow inmates would tend to support the applicant's version of events (paragraphs 35-36, 39 and 41 above). In view of its misgivings in respect of other evidence submitted by the applicant, the Court cannot consider these sufficient to disprove the official records in question beyond reasonable doubt.

169. The official reports which describe the applicant as apparently capable of taking showers unaided and performing demanding physical exercises require an examination of the medical information. This information is considered in greater detail below.

170. There is abundant medical information available to show that the applicant suffers from a distortion of his spine that requires, at the very least, physiotherapy. The oldest such information contained in the Court's file dates from June 2002 (paragraph 18 above). Aruba's neurosurgeon actually suggested treatment involving surgery in June 2003 (paragraph 40 above).

171. The applicant was released from the KIA on 30 April 2004; he has since been treated in the United States where he now lives. It has not, however, been brought to the Court's attention that he has undergone surgery. Nor does surgery appear to have been prescribed for him at any time after his release.

172. The Court accepts that since June 2002 if not earlier the applicant has suffered from a serious spinal condition which very likely made walking and other physical activity painful and difficult for him. Nonetheless, the Court cannot find it established that the applicant was incapacitated to the point of immobility. Nor is the information available sufficient for the Court to conclude that the applicant's condition was caused or worsened by external violence.

173. As far as the Court is aware, no psychiatric or psychological examination of the applicant was undertaken. The Court nonetheless considers the applicant's mental state to be relevant to the merits of the case; it will draw its own inferences from the information at its disposal.

174. The applicant's behaviour in detention was characterised by his continued inability to adapt to the exigencies of prison life and his lack of response to normal prison discipline. It is apparent that he was, while detained, suffering from a disturbance the precise nature of which the Court cannot determine but which resulted in an increased propensity to recalcitrant and even violent behaviour.

175. The Court has stated the applicable principles as follows (for example in Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI, case-law references omitted):

“ The Court recalls that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (...).

The Court further recalls that, according to its case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (...).

The Court has considered treatment to be 'inhuman' because, inter alia, is was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be 'degrading' because it was such as to arouse in the victims feeling of fear, anguish and inferiority capable of humiliating and debasing them (...). In considering whether a particular form of treatment is 'degrading' within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (...). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (...). The suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

Measures depriving a person of his liberty may often involve such an element. Yet it cannot be said that detention on remand in itself raises an issue under Article 3 of the Convention. Nor can that Article be interpreted as laying down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment.

Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (...).”

176. The Court considers it established that external violence was used against the applicant on more than one occasion.

177. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (Ribitsch v. Austria, judgment of 4 December 1995, Series A no. 336, p. 26, § 38; Keenan v. the United Kingdom, no. 27229/95, § 113, ECHR 2001-III).

178. As noted above, the applicant has not been able to convince the Court that the plurality of official documents recording his obstreperous and even violent behaviour during his detention misstate essential facts.

179. The Court therefore cannot find that the force used against the applicant in preventing or terminating violent episodes went beyond what was strictly necessary in the circumstances.

180. The use of handcuffs or other restraint instruments does not normally give rise to an issue under Article 3 of the Convention where the measure has been imposed in connection with a lawful detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary. In this regard, it is important to consider, for instance, the danger of the person's absconding or causing injury or damage (see, among other authorities and mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports of Judgments and Decisions 1997-VIII, p. 2822, § 56, and Henaf v. France, no. 65436/01, § 48, ECHR 2003-XI).

181. The applicant has not directed a complaint against the use of restraint instruments as such. Instead, his grievances relate to the injuries caused, as he alleges, by his fetters.

182. For their part, the Government state that the injuries to the applicant's ankles were self-inflicted.

183. The applicant has not satisfied the Court that the wounding of his ankles was the inevitable consequence of the use of fetters. The Court further accepts that the use of fetters was eventually discontinued in view of these injuries. In the circumstances, the Court is not disposed to draw any inferences capable of leading to a finding of a violation of Article 3.

184. No violation of Article 3 of the Convention has been established as regards the use of physical force against the applicant and the injuries allegedly resulting from the use of fetters.

185. On 4 July 2003 Aruba's neurosurgeon, Dr Vallejo Lopez, suggested surgery but called for a second opinion by another surgeon before such an intervention was resorted to (paragraph 40 above). The prison authorities made it clear that the applicant could consult “any specialist of his choice in Aruba, as long as the specialist in question [was] registered in Aruba according [to] the current law” (paragraph 44 above). There was no other resident neurosurgeon on Aruba. The applicant was not seen by a second neurosurgeon as long as he remained in detention.

186. As noted above (paragraph 175), the health and well-being of a prisoner must be adequately secured. However, Article 3 cannot be interpreted as requiring a prisoner's every wish and preference regarding medical treatment to be accommodated. In this as in other matters, the practical demands of legitimate detention may impose restrictions which a prisoner will have to accept.

187. Examination by a medical expert who has no links to the detaining authority is an important safeguard against the physical or mental abuse of prisoners. The Court therefore considers 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 is accepted by the prisoner. Even so, there is 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 does not result in a denial of timely and adequate medical examination, treatment and advice.

188. The prescription issued by Dr Vallejo Lopez suggested that a second opinion be given by “the Neurosurgeon that periodically is visiting the Island”. It would seem that this other neurosurgeon never examined the applicant. The reasons for this have not been made clear to the Court.

189. The Court observes, however, that the applicant's wife, acting to all appearances on the applicant's behalf, asked for the applicant to be examined by a medical practitioner of his choice from abroad (paragraph 45 above). In the light of the information available, much of which suggests that the applicant was apt to set preconditions for accepting medical treatment, the Court is unable to impute the absence of a second opinion to the respondent Party.

190. The applicant was provided with a wheelchair on 14 August 2002. According to an official report which must be accepted as genuine (paragraph 168 above), he damaged it on 13 February 2003 in an incident in which he used part of it as a weapon against prison staff (paragraph 66 above). It was taken from him, apparently, at some time after that incident. It appears that the applicant's wife offered a replacement but that the interim governor of the KIA refused to allow it to be supplied to the applicant.

191. The Court finds, on the evidence available, that in the hands of the applicant a wheelchair was perceived on reasonable grounds as a threat to the safety of others. In these circumstances the Court holds, without prejudice to the position taken in paragraphs 204 and 215 below, 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.

192. The applicant received physiotherapy in hospital from 23 May until 13 June 2003, after which he was returned to the KIA. It was intended that the applicant should continue to receive physiotherapy as an outpatient. The applicant states 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.

193. The treatment of prisoners in ordinary hospitals rather than in prison ensures that medical facilities and staff remain available to provide health care outside prison; it also offers prisoners access to medical assistance of the same standard as that provided to the general population. While, as noted (paragraph 175 above), it is not a requirement under the Convention, the Court cannot find it objectionable. The question before the Court in the present case is accordingly whether treatment in prison was made necessary by the applicant's state of health.

194. The Court accepts 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 cannot, however, find it established that the applicant's condition dictated the latter course.

195. In so finding the Court has had regard to various official reports which indicate that the applicant was apparently capable of extreme physical resistance, including the report of the incident of 13 February 2003 (paragraph 66 above) which describes the applicant ripping a piece of metal off his wheelchair. It has also considered the written statement dated 6 March 2004 by Mr Carti, the physiotherapist engaged by the Aruban authorities to visit the applicant in prison (paragraph 100 above). This describes 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.

196. No violation of Article 3 of the Convention can be established in that the applicant was denied necessary medical care.

197. The detention regime ordered by the interim prison governor on 4 January 2002 (paragraph 15 above) required the applicant to spend the remainder of his detention in a situation amounting to solitary confinement. This involved far greater hardship than ordinary detention on remand.

198. It is apparent that the applicant was stubbornly uncooperative and much inclined to acts of violence against property and individuals. On the information available, the Court accepts that the KIA authorities found him impossible to control except in conditions of strict confinement.

199. The Court reiterates that conditions of detention may sometimes amount to inhuman or degrading treatment (Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). It agrees with the CPT that even for difficult and dangerous prisoners, periods of solitary confinement should be as short as possible (paragraph 128 above). It has found in the past that complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot 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 does not in itself amount to inhuman treatment or punishment (see, among other authorities, Öcalan v. Turkey [GC], no. 46221/99, § 191, ECHR 2005-...).

200. The Government compare the case with Messina v. Italy (No. 2) (dec.), no. 25498/94, ECHR 1999-V. It is correct that, like the applicant Messina, the present applicant was not subjected to sensory or total social isolation but rather to relative social isolation and that the period to be considered here was rather shorter.

201. The present case is, however, distinguishable from Messina. In that case the applicant was charged with, or convicted of, very serious offences linked to organised crime and the impugned measure was ordered to prevent the applicant from re-establishing contacts with criminal organisations. The Court accepted that such a reason could justify the decision complained about; indeed, it is difficult to see what alternative course of action would have been practicable. The Court also considered the state of health of the applicant Messina, who did not claim to have suffered any physically or psychologically damaging effects, and effective action taken by the authorities to moderate the effects of the regime.

202. The present applicant, in contrast, was subjected to the impugned regime not because he might involve himself with organised crime outside the prison but because he could not adapt to an ordinary prison setting. Attempts by the authorities to remove its harmful effects were not effective.

203. 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. The letter of the Supervisory Board of 26 March 2002, the decisions of the Joint Court of Justice of 15 July and 2 September 2003 and the Joint Court's judgment of 14 April 2003 demonstrate that. Admittedly, attempts were made, most conspicuously by the Joint Court of Justice, to alleviate the applicant's situation to some extent but the Court considers that the respondent Party could and should have done more.

204. The Court accepts 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 is not Aruba but the Kingdom of the Netherlands which is the Party 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 – can be executed throughout the Kingdom (Article 40 of the Charter of the Kingdom of the Netherlands, see paragraph 126 above). The Court is concerned to find that, despite a request to that effect from the applicant, no attempt appears to have been made to find a place of detention appropriate to the applicant in one of the other two countries of the Kingdom (paragraph 115 above).

205. The Court accordingly finds 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”.

206. The applicant submits that, during the time he was detained there, the committal cell was allowed to become filthy and unsanitary; he was unable to clean it himself and the measures taken by the Government in this regard were insufficient.

207. The Government express doubts as to the applicant's inability to keep the cell clean himself and argue that in any case the prison authorities provided him with assistance.

208. The Court has already considered the information available on the applicant's physical condition and cannot find it established that the applicant was unable throughout the nearly two and a half years of his detention to do any cleaning himself. It notes in addition that the applicant does not deny that another prisoner was in fact appointed, at the prison's expense, to clean the committal cell periodically. In these circumstances the Court declines to impute responsibility for the uncleanliness of the committal cell to the respondent Party.

209. As the Government state and the applicant does not deny, the committal cell was relatively spacious. Its furnishings were basic but adequate.

210. 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 cell through which the rain penetrated.

211. The committal cell was located on the second and top floor of the KIA prison building. Its situation exposed its occupant to the heat of the sun. Iced water was provided; there was, however, no air conditioner or other cooling system.

213. The Court has had occasion to find Article 3 violated by the poor state of repair of a cell in which a prisoner was held for long periods and the lack of opportunity for outdoor exercise (see Poltoratskiy v. Ukraine, no. 38812/97, § 146, ECHR 2003-V).

214. The Court finds it unacceptable that anyone should be detained in conditions involving a lack of adequate protection against precipitation and extreme temperatures.

215. On the evidence available, the Court finds 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 is understandable in these circumstances that the applicant preferred many times to forgo outdoor exercise rather than suffer the pain. Some arrangement should have been made whereby this could have been avoided. It must 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.

216. The Court cannot find it established that there was a positive intention of humiliating or debasing the applicant. However, as already noted (paragraph 175 above), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. In the present case the Court considers that the conditions of detention which the applicant had to endure must have caused him both mental and physical suffering, diminishing his human dignity and amounting to “inhuman treatment”.

217. There has been a violation of Article 3 of the Convention 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. No violation of Article 3 has been established as regards the state of cleanliness of the cell in which the applicant was detained.

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

219. The applicant submitted claims in respect of pecuniary and non-pecuniary damage and costs and expenses.

220. Under this head, the applicant claimed a total of 9,825 United States dollars (USD) for medical treatment of his back problems which he underwent after he was released from detention.

221. The applicant also claimed reimbursement of business losses caused, as he submitted, by his inability to maintain contact with the outside world owing to his isolation. He had set up a company to provide mobile telephone services, which had missed the opportunity to bid for a license in June 2003; a restaurant and a security company which he owned had been forced out of business. The damage thus caused him ran to millions of Aruban florins (AWG).

222. The Government argued that only medical expenses might justify an award under this head.

223. The Court's findings of violation of Article 3 of the Convention relate only to certain aspects of the conditions in which the applicant was detained. They do not impute responsibility for the applicant's medical condition to the respondent Party, from which it follows that the costs thereby caused cannot be recovered from the respondent Party under Article 41 of the Convention. Nor do they call into question the lawfulness of the applicant's detention, from which it follows that the Court cannot assume that the applicant would have been in a position to pursue his business interests unimpeded if these violations had not been.

224. It follows that no causal link has been established between the pecuniary damage claimed and the violations which the Court has found. The applicant's claims under this head must therefore be rejected.

225. The applicant claimed USD 500,000 to compensate for non-pecuniary damage caused by the ill-treatment, the lack of medical care and the long period of isolation which he imputed to the respondent Party.

226. The Government asked the Court to consider the reduction in sentence, from five years to three and a half years, decided by the Joint Court of Justice specifically in view of the harsh conditions in which the applicant was detained.

227. The Court would again point out that it has found violations of Article 3 only in respect of the long period spent by the applicant in solitary confinement and the situation and state of repair of the committal cell. It has not found the respondent Party responsible for active maltreatment or the denial of medical care.

228. Although in this case the reduction in sentence does not deprive the applicant of the status of “victim”, in terms of the Convention (paragraphs 151 and 152 above), it is a fact to be taken into account in the context of non-pecuniary damage. It was undeniably intended by the Joint Court of Justice to alleviate and compensate for the applicant's suffering and to some extent it did so. The Court therefore considers it appropriate to award a reduced amount in respect of pecuniary damage.

229. Making an assessment on an equitable basis, the Court awards the applicant 10,000 euros (EUR) under this head.

a) from his representative before the Court, Ms J. Serrarens, an invoice dated 4 October 2004, to an amount of EUR 1,500 euros plus value-added tax (VAT);

b) from Ms Serrarens, an invoice dated 5 April 2004, to an amount of EUR 910 plus VAT;

c) from Mr G. Spong, an advocate practising in Amsterdam, an invoice dated 21 January 2003, to an amount of USD 875;

d) an order to a bank, dated 9 October 2001, for the transfer of USD 5,000 to the Curaçao law firm Sulvaran & Peterson;

e) from the Curaçao law firm Römer and Partners, an invoice for services rendered dated 13 March 2002, to an amount of 3,277.98 Netherlands Antilles guilders (ANG) plus turnover tax, and another invoice dated the same day, for a retainer in an amount of ANG 5.250 plus turnover tax;

f) from Mr David G. Kock, an advocate practising on Aruba, an invoice, dated 10 July 2003, to an amount of AWG 4,200, specified as follows:

g) from Ms Carole A. Francis, an advocate practising on Aruba, an invoice dated 30 January 2002, to an amount of AWG 11,550;

h) from Mr M. Moszkowicz Sr., an advocate practising in Maastricht, a letter requesting payment of a balance of a total sum of USD 17,000 (this letter bears the handwritten addition “This was for the lower court, we also paid approx 10,000 or more for the Supreme Court”);

i) from the Amsterdam law firm Plasman Advocaten, an invoice, dated 28 April 2003, for a retainer of EUR 2,500 plus VAT.

231. The Government considered that only the costs referable to the proceedings in Strasbourg could be recovered. They also drew the Court's attention to the applicant's withdrawal of all complaints not subsumable under Article 3 of the Convention.

232. The Court reiterates that, in order for costs and expenses to be included in an award under Article 41, it must be established that they were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reasonable as to quantum (see, among many other authorities, Ilaşcu and Others, cited above, § 493).

233. Of the invoices supplied, only those of Ms Serrarens – whom the applicant instructed after Ms Iannuccilli had lodged an application on his behalf – and Mr Kock definitely relate to the matters considered by the Court. The others are not specified; the Court cannot find that they do not relate to matters which are outside the scope of the present case, such as the criminal proceedings or the applicant's business dealings.

234. It is true, as the Government state, that the applicant's complaints were withdrawn in so far as they did not relate to Article 3 of the Convention. This was done by Ms Serrarens when she first became involved in the case; the withdrawal therefore did not result in a reduction of the expenses incurred in the Strasbourg proceedings referable to the Article 3 complaints.

235. The Court will have regard once more to the fact that only part of the applicant's remaining complaints resulted in a finding that Article 3 was violated. Making its own estimate based on the information available, the Court considers it reasonable to award the applicant EUR 3,000 under this head, plus any tax that may be chargeable on that amount.

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

2. Holds that the applicant may claim to be a “victim” for the purposes of Article 34 of the Convention;

4. Holds that there has been a violation of Article 3 of the Convention 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;

5. Holds that there has been no violation of Article 3 of the Convention as regards the remainder of the applicant's complaints;

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 10,000 (ten thousand euros), to be converted into United States dollars at the rate applicable at the date of settlement in respect of non-pecuniary damage;

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

Done in English, and notified in writing on 29 September 2005, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

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You are here: BAILII >> Databases >> European Court of Human Rights >> MATHEW v. THE NETHERLANDS - 24919/03 [2005] ECHR 652 (29 September 2005) URL: http://www.bailii.org/eu/cases/ECHR/2005/652.html Cite as: [2005] ECHR 652, (2006) 43 EHRR 23