TrustHLT/LaCour huggingface dataset:
GR1 (Government): Le débat d'intérêt général ne doit pas nécessairement exister au moment où la publication peut susciter le débat d'intérêt général.
GR1 (Government): Cependant, ce qui a été considéré en l'espèce par les juridictions françaises, je le rappelle, c'est que l'accession de l'enfant au trône qui aurait constitué un débat d'intérêt général, eh bien que cette question ne se posait pas pour les raisons qu'on a indiquées de la constitution monégasque.
GR1 (Government): Donc la réponse est oui, mais qu'en l'espèce, il ne s'agissait pas de savoir si Paris Match avait la primeur ou pas.
GR1 (Government): Le point essentiel, c'est que les juridictions françaises ont considéré que l'éventuelle accession au trône de l'enfant qui aurait constitué un débat d'intérêt général, cette question ne se posait pas compte tenu de la constitution monégasque.
GR1 (Government): Autre question, monsieur le juge, l'article veut-il avoir principalement pour objet un débat d'intérêt général ou, au fond, exclusivement un débat d'intérêt général pour pouvoir être conforme à la Convention?
GR1 (Government): Alors la réponse est oui, selon le gouvernement français.
GR1 (Government): Oui, l'article, un article, nous parlons d'un article en général, si vous voulez, un article doit avoir principalement pour objet un débat d'intérêt général.
GR1 (Government): En effet, si un article, si on admet qu'un article qui porte touche à la vie privée ou la vie intime d'une personne, eh bien serait compatible avec la Convention parce que, eh bien, parce qu'il y a de toute façon une petite partie de l'article qui est consacrée à un débat d'intérêt général, eh bien vous ouvrez la porte à tous les contournements possibles.
GR1 (Government): Il suffira de quelques lignes sur un débat d'intérêt général dans un article pour justifier des pages et des pages sur la vie intime et des pages et des pages de photos.
GR1 (Government): Donc la réponse c'est oui, il faut qu'un article qui touche à la vie intime, eh bien, doit principalement porter sur un débat d'intérêt général pour être, pour pouvoir être justifié, y compris au regard de la protection de la vie privée.
GR1 (Government): C'est vrai que dans votre harlefon à 9h contre Allemagne de 2004, vous avez relevé au point 76, je vous cite, que force est de constater qu'en l'espèce, cette contribution au débat d'intérêt général fait défaut, la requérante ne remplissant pas de fonctions officielles, donc la princesse de Hanover, et les photos et articles litigieux se rapportant exclusivement à sa vie privée.
GR1 (Government): Mais nous ne pensons pas, nous n'avons pas d'arrêt en tête par rapport à la question que vous nous avez posée, monsieur le juge, mais c'est vrai que dans cet arrêt font à 9h contre Allemagne de 2004, vous relevez que l'article se rapportait exclusivement à la vie privée de la princesse.
GR1 (Government): Mais vous savez, nous le savons tous, il ne faut surtout se méfier des interprétations a contrario.
GR1 (Government): Et il est évident que dans cette affaire, c'est une remarque d'espèce, vous avez relevé que l'article en question portait exclusivement sur la vie privée de la princesse, mais selon le gouvernement français, vous n'avez pas voulu dire par un a contrario, qui aurait été tout de même très implicite, mais un a contrario, que si l'article avait porté principalement sur la vie privée, eh bien, dans ce cas, la solution de l'arrêt aurait été tout autre.
GR1 (Government): Voilà, je vous remercie, Monsieur le député.
Dean Spielmann (JudgeP): Merci, merci beaucoup, M. de Bergues.
Dean Spielmann (JudgeP): Ladies and gentlemen, please be seated.
Dean Spielmann (JudgeP): I declare open the public hearing on the merits in the case of Murray against the Netherlands.
Dean Spielmann (JudgeP): The application was lodged with the court under Article 34 of the Convention on the 22nd of February, 2010, by a Dutch national, Mr. James
Dean Spielmann (JudgeP): Clifton Murray.
Dean Spielmann (JudgeP): It was allocated to the third section of the court, pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Dean Spielmann (JudgeP): On the 10th of December, 2013, a chamber of that section declared the application partly admissible and delivered a judgment in which it held that neither the life sentence imposed on the applicant nor the conditions of his detention were in breach of Article 3 of the Convention.
Dean Spielmann (JudgeP): On the 5th of March, 2014, the applicant requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted that request on the 14th of April, 2014.
Dean Spielmann (JudgeP): Meanwhile, on the 26th of November, 2014, the applicant passed away.
Dean Spielmann (JudgeP): By a letter of the 6th of December, 2014, his representative informed the court that the applicant's son, Mr. Johnny Francis van Heyningen,
Dean Spielmann (JudgeP): as well as the applicant's sister, Miss Altagracia Murray, intended to pursue the application before the court on behalf of the applicant.
Dean Spielmann (JudgeP): The government are represented by their agent, Mr. Roeland
Dean Spielmann (JudgeP): Böcker of the Ministry of Foreign Affairs, assisted by Dr. Martin Kuijer of the Ministry of Security
Dean Spielmann (JudgeP): and Justice, and by Mr. Anton van der Schans,
Dean Spielmann (JudgeP): Advocate General of the Curaçao Public Prosecutor's Office Advisors.
Dean Spielmann (JudgeP): The applicant is represented by Mrs. Claudia
Dean Spielmann (JudgeP): Reijntjes-Wendenburg, counsel assisted by Professor Jan Maarten Reijntjes Advisor.
Dean Spielmann (JudgeP): I would also like to welcome a delegation of Dutch judges and prosecutors, as well as a delegation of Turkish judges and prosecutors who are visiting the court.
Dean Spielmann (JudgeP): I would explain that, in addition to interpretation in the two official languages of the court, English and French, interpretation into Turkish has been authorized for the benefit of the delegation of Turkish judges and prosecutors attending this hearing.
Dean Spielmann (JudgeP): This interpretation is not arranged by the court, and no transcription of the oral translation will be included in the official record of the proceedings.
Dean Spielmann (JudgeP): Mrs. Reijntjes-Wendenburg, for the applicant,
Dean Spielmann (JudgeP): will speak first, and then Mr. Böcker for the government.
Dean Spielmann (JudgeP): I call Mrs. Reijntjes-Wendenburg.
AP2 (Applicant): As you already know, the applicant, James Murray, died a few weeks ago.
AP2 (Applicant): His sister and her son wish to pursue the proceedings.
AP2 (Applicant): Before I continue with additional observations on the merits of the case, I will set forth why the case should proceed and not be struck down.
AP2 (Applicant): Why is it so important that a judgment will be given on the merits in the present case?
AP2 (Applicant): The answer is twofold.
AP2 (Applicant): Both Mr. Murray's son and sister have a legitimate interest
AP2 (Applicant): to receive a judgment from your court with regard to Mr. Murray's complaints,
AP2 (Applicant): in particular on the question whether the government would have had the obligation to assure Mr. Murray a treatment
AP2 (Applicant): that would be adapted to his condition and suitable to help him in regaining his liberty by eliminating his dangers to others, or in other words, to create de facto a prospect to be released.
AP2 (Applicant): Answering that question is also of very great importance in the general interest when it comes to respect of human rights.
AP2 (Applicant): First, I will set forth the legitimate interest of Mr. Murray's relatives.
AP2 (Applicant): Subsequently, I will pursue that question of general interest.
AP2 (Applicant): Mr. Murray's son was born three years
AP2 (Applicant): before his father was convicted for murder.
AP2 (Applicant): He has been missing a father not only during his youth, but for more than 30 years.
AP2 (Applicant): In 1999, Mr. Murray's son moved to the Netherlands
AP2 (Applicant): for a better job and better educational opportunities.
AP2 (Applicant): A nonstop flight from Amsterdam to the Dutch Caribbean Islands can take about nine hours and cost on an average 700 euros.
AP2 (Applicant): Mr. Murray's son told me that he nevertheless visited his son
AP2 (Applicant): in prison six times.
AP2 (Applicant): After Mr. Murray had been pardoned,
AP2 (Applicant): his son almost immediately traveled to Aruba to spend some time with him.
AP2 (Applicant): During the imprisonment of Mr. Murray,
AP2 (Applicant): father and son were forced to keep the family ties intact by scare visits and by phone.
AP2 (Applicant): In view of Mr. Murray's son, the government had both
AP2 (Applicant): the positive obligation to periodically assess whether his father must still be considered too dangerous to be set free, and if so, to provide him with the opportunity to get adequate treatment to help him to regain his liberty, to reunite with his family, and to restore the family ties.
AP2 (Applicant): This also counts for Mr. Murray's sister, who lives in Aruba.
AP2 (Applicant): Although she needed to take care of their sick mother 24-7 for several years, she nevertheless visited him in prison nearly every week.
AP2 (Applicant): She blamed the government for not providing Mr. Murray
AP2 (Applicant): with any opportunity to regain his liberty and to reunite with his family.
AP2 (Applicant): Moreover, Mr. Murray's family was deep ashamed
AP2 (Applicant): of being him, a whole-life prisoner.
AP2 (Applicant): After each request for a pardon, the local press again tore him to shreds.
AP2 (Applicant): I would like to emphasize that it is nevertheless his sister who took care of him after he was pardoned, and he, because of his illness, was not able to take care of himself anymore.
AP2 (Applicant): She also, from her small pension, paid for his nursing.
AP2 (Applicant): Since her financial means were insufficient, she even had to lend a considerable amount of money.
AP2 (Applicant): For Mr. Murray's relatives, it is important
AP2 (Applicant): that it will be determined whether or not Mr. Murray,
AP2 (Applicant): on justified grounds, remained in prison for 35 years.
AP2 (Applicant): One must remember that a person retains his or her convention rights during imprisonment so that any restrictions on those rights must be justified in each individual case.
AP2 (Applicant): The question of justification affects Mr. Murray's son
AP2 (Applicant): and sister's fundamental right to family life.
AP2 (Applicant): There is also a general interest, since, in our view, the case of Mr. Murray raises both a serious issue
AP2 (Applicant): of general importance and a serious question affecting the interpretation of the convention.
AP2 (Applicant): As we already stated in our request of 5 March 2014 for referral of the case to the Grand Chamber, the points of law mentioned therein are important and of such a general nature that they deserve to be clarified.
AP2 (Applicant): In the case of Winter, your court decided that where domestic law does not provide for the possibility of a periodic review, a whole life sentence will not measure to the standards of Article 3 of the convention and that a whole life prisoner is entitled to know at the outset of his sentence what he must do to be considered for release and under which conditions.
AP2 (Applicant): This decision has been elucidated in the Magyar case.
AP2 (Applicant): When the review takes the form of an executive decision, the law has to provide for specific guidance as to what kind of criteria or conditions are to be taken into account in the gathering and organization of personal particulars of the prisoner and in the assessment of his request.
AP2 (Applicant): The case of James Murray illustrates that it does not solve all problems.
AP2 (Applicant): How exactly should a prisoner know what he must do to be released?
AP2 (Applicant): Would criteria given by law be sufficient or does the government have a positive obligation to draw up a specific plan for his personal rehabilitation and if so, if necessary, to help him in rehabilitating himself?
AP2 (Applicant): We think it is important that Europe will be given more guidance on these and maybe other aspects.
AP2 (Applicant): Obviously, this was also the position of the panel that referred the case to this chamber.
AP2 (Applicant): It raises a serious question affecting the interpretation and application of the Convention and its protocols and a serious issue of general importance, the criteria provided by Article 43, Paragraph 2 of the Convention.
AP2 (Applicant): Article 37, Paragraph 1 of the Convention provides that the court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols he so requires.
AP2 (Applicant): Such a situation appears here.
AP2 (Applicant): According to a recent study of your court, in nine of the Council of Europe's member states, life imprisonment did not exist.
AP2 (Applicant): In the majority of the member states where life imprisonment did exist, there also existed a dedicated mechanism for reviewing the sentence after the prisoner had served a certain minimum period fixed by law.
AP2 (Applicant): And five of the Council of Europe's member states, one of them being the Kingdom of the Netherlands, only allowed whole life prisoners to apply for communication of life sentence by mean of ministerial, presidential, and royal pardon.
AP2 (Applicant): We are aware of your court's case law that the choice of a specific criminal justice system, including sentence review and release arrangement, is in principle outside the scope of your court's supervision, provided that the system does not contravene the principles set forth in the Convention.
AP2 (Applicant): Each system, however, must meet certain minimum requirements to guarantee the rights and freedoms set forth in the Convention.
AP2 (Applicant): Until 2011, nowhere in the Kingdom of the Netherlands existed a dedicated mechanism for reviewing the sentence after a whole life prisoner had served a certain minimum period.
AP2 (Applicant): In the autonomous region of Curaçao, where James Murray was sentenced, until 2011 a pardon could only be obtained by the governor, but no criteria were provided and for refusal of a pardon, no reasons had to be given.
AP2 (Applicant): Since 2011, the court may, after 20 years of the sentence having been served, order a professional release if the further execution of the sentence does not serve a legitimate interest anymore.
AP2 (Applicant): More specific criteria, however, are not provided and there is no way in which a whole life prisoner can know what he should do to be considered for release and under which conditions.
AP2 (Applicant): Moreover, the system does not provide in any programs, interventions or treatments of whole life prisoners during their detention with the view of achieving release.
AP2 (Applicant): During their detention, neither information on specific needs is gathered, nor a psychological or a psychiatric examination takes place.
AP2 (Applicant): No plans for rehabilitation are made and the penal policy under which whole life sentences are pursued is not even intended to facilitate the reintegration into free society.
AP2 (Applicant): In brief, whole life prisoners do not have any concrete and realistically attainable chance ever to be released, provided one does not become incurably ill like James Murray.
AP2 (Applicant): More in general, the question raises whether it will be sufficient only to provide a whole life prisoner with information, especially when he is in need of psychiatric treatment without being aware what exactly is wrong with him or maybe without being aware that he is needing such treatment at all.
AP2 (Applicant): We think that all governments have a positive obligation to try to rehabilitate prisoners who for a long time are being deprived of their liberty.
AP2 (Applicant): And our position is that not providing whole life prisoners with a more than theoretical possibility of rehabilitation deprives them of any effective prospect of release and makes whole life sentence grossly disproportionate and as such incompatible with Article 3 of the Convention.
AP2 (Applicant): In conclusion, in the present case, the individual right to family life of Mr. Murray's son
AP2 (Applicant): and sister is involved, as well as the general interest, since the case both raises an issue of general importance and a serious question affecting the interpretation of the Convention that needs to be clarified.
AP2 (Applicant): For these reasons, the circumstances in the present case are different from that in the case of Ligier against France.
AP2 (Applicant): Therefore, we request you not to strike the case off the list, but to continue the examination of the application since respect for human rights requires so.
AP2 (Applicant): Now I will continue with additional observations on the merits of the memorial.
AP2 (Applicant): What is it all about?
AP2 (Applicant): By now, it will be clear that even a whole life prisoner should have a more than theoretical prospect of release.
AP2 (Applicant): For that reason, domestic law should provide for the possibility of periodic review whether further execution of the sentence is still serving a legitimate interest.
AP2 (Applicant): Any whole life prisoner is entitled to know at the outset of his sentence what he must do to be considered for release and under which conditions.
AP2 (Applicant): Obviously, the absence of a system of periodic review and or not providing the required knowledge constitutes an infringement of Article 3 of the Convention, which may be invoked in court immediately.
AP2 (Applicant): In the case of James Murray, the Third Chamber quite rightly affirmed that in the autonomous region of Curaçao, where he was sentenced until 2011, no system of periodic review existed.
AP2 (Applicant): Before, a release could only be obtained by way of a pardon based on a provision in the Constitution.
AP2 (Applicant): Criteria on when a pardon would be granted, if those existed at all, were and are still not known to the public.
AP2 (Applicant): Even the procedure to be followed is not regulated by law, but only by custom.
AP2 (Applicant): It seems that the governor asked for advice of both the public prosecution service and the court, but it is not clear whether or not this is a standard procedure.
AP2 (Applicant): Neither it is clear, and in any case it is not known to the public, whether or not these authorities collect any information before giving their advice.
AP2 (Applicant): And if they do so, what kind of information and what kind of criteria are used when giving their advice?
AP2 (Applicant): There are no regulations providing that these authorities or the governor himself have to assess in the case a prisoner requests a pardon, whether or not his continued imprisonment is justified on legitimate, panological grounds.
AP2 (Applicant): Also, there is no guideline available providing criteria or conditions which must be taken into account in the gathering and organization of personal particulars concerning the prisoner and in the assessment of a request for pardon.
AP2 (Applicant): Moreover, the governor is completely free to ignore the advice of the judicial authorities, and he is not bound to give any reasons when he decides to refuse the request for pardon.
AP2 (Applicant): The government recognized and the third chamber acknowledged, as well as the joint court of justice did after reviewing the sentence of James Murray in 2012, that such a system cannot be regarded as providing the necessary periodic review.
AP2 (Applicant): Subsequently, this has been acknowledged again by the constitutional court of the autonomous region of St. Martin, also a part of the kingdom of the Netherlands,
AP2 (Applicant): where the same rules still exist as having been applicable on Curaçao until 2011.
AP2 (Applicant): Moreover, the government itself has recognized that this possibility of obtaining a pardon since 1954 just once resulted in actually pardoning a whole life prisoner, probably also someone who was terminally ill.
AP2 (Applicant): The case of James Murray, who has lodged a number of requests for pardon, not only shows that some of these requests were not even answered, and other requests were refused without giving a proper reasoning, but also that the assessment of these requests was not based on proper considerations, namely whether or not there still were panological grounds to continue the detention.
AP2 (Applicant): For about 30 years, until the joint court's review in 2012, not once a psychological or a psychiatric examination took place to establish the prisoner's actual mental condition with a view to determine whether he remained dangerous.
AP2 (Applicant): Neither the Aruban prison authorities until 2012 have ever been asked how James Murray was behaving during his detention.
AP2 (Applicant): The governor never asked the Aruban prison authorities to report when assessing his requests for pardon.
AP2 (Applicant): The conclusion should have been that the imposition of a sentence of whole life imprisonment on James Murray in itself and the execution of the sentence did not measure up to the standards of Article 3 of the Convention, and that the complaints of James Murray insofar were justified.
AP2 (Applicant): The fact that he did not make much earlier any complaints to your court was only owing to his utter unawareness of his rights.
AP2 (Applicant): But there is more.
AP2 (Applicant): Even if there had been a periodic review provided by law before 2011, and even if the criteria used when deciding on the request for pardon would have been clear, it is highly doubtful whether James Murray really had had a fair chance of being released.
AP2 (Applicant): He did not know what he should do to be released.
AP2 (Applicant): But if he had known, would he have been able to meet these criteria without any professional help?
AP2 (Applicant): The Joint Court of Justice that sentenced him found that he was dangerous owing to his mental condition.
AP2 (Applicant): It is certain that James Murray would remain dangerous without professional treatment, which at that time, according to the Joint Court, was unavailable on Curaçao.
AP2 (Applicant): It, however, remained unclear what kind of treatment was required.
AP2 (Applicant): The expert who examined him before he was sentenced only said that a long institutional treatment would be necessary and that his personality structure should be strengthened to prevent recidivism.
AP2 (Applicant): What could Murray in such a situation have done to improve his mental condition?
AP2 (Applicant): Was he even aware that something was wrong?
AP2 (Applicant): Had it not been up to the government first to assess what kind of professional assistance he actually needed, and then to provide him with this assistance, as so far as reasonably can be expected?
AP2 (Applicant): Does it not follow from your court's case law, in the case of Matthew, that Murray, if necessary, should have been sent to the Netherlands for assessment and treatment, if assessment and effective treatment only were not available on Curaçao?
AP2 (Applicant): In fact, the authorities always took the position that Murray could not be brought to the Netherlands because of his language capabilities being insufficient.
AP2 (Applicant): It is clear that this position was never reassessed after he was sentenced.
AP2 (Applicant): Murray indeed spoke Dutch not fluently, like many inhabitants of Curaçao.
AP2 (Applicant): He, however, understood Dutch, although with some difficulties.
AP2 (Applicant): He could even write simple letters in that language.
AP2 (Applicant): The same counts for many Antillian citizens who were given in the Netherlands.
AP2 (Applicant): So it is highly improbable that Dutch professionals would not be able to cope with this problem.
AP2 (Applicant): As said before, the Joint Court of Justice thought that on Curaçao no adequate treatment would be available.
AP2 (Applicant): This nevertheless leaves the possibility that, after all, treatment has been given on Curaçao.
AP2 (Applicant): The Joint Court, however, concluded in 2012 that it was not.