TrustHLT/LaCour huggingface dataset:
GR1 (Government): The fact that judgments, according to the kingdom statute, may be executed in other countries within the kingdom merely means that judgments are mutually recognized and may be executed without exequatu procedure.
GR1 (Government): It does not mean that the place of execution is an open question to be decided on a case-by-case basis.
GR1 (Government): It is common policy within the kingdom to request a minimum period of residence directly preceding the judgment in order to allow a transfer.
GR1 (Government): The European part of the kingdom, for instance, maintains a residence period of five years as a prerequisite for incoming transfers.
GR1 (Government): Mr. Murray's transfer to Aruba should be seen in the light of
GR1 (Government): the fact that Curaçao and Aruba were still one country within the kingdom when judgment was passed and during the first six years of Mr. Murray's detention, when he had already lodged his
GR1 (Government): first requests for transfer.
GR1 (Government): The applicants put a lot of emphasis on the joint court's acknowledgment of the desirability of confinement to a custodial clinic, but ignore the same court's conclusion that transfer to the Netherlands was considered impossible.
GR1 (Government): The applicants take for granted, without any substantiation, that confinement to a custodial clinic in a different part of the world would have proven more beneficial to Mr. Murray's
GR1 (Government): rehabilitation than placement in a prison in his country of residence.
GR1 (Government): This assumption not only conflicts with the joint court's judgment, but more importantly, is also in flagrant contradiction with Mr. Murray's repeated requests to be
GR1 (Government): transferred to Aruba, a wish that was ultimately fulfilled in 1999.
GR1 (Government): He never requested a transfer to the Netherlands.
GR1 (Government): In his letter to the parties of the 7th of July, 2014, the Grand Chamber requested to be informed about the psychological or psychiatric treatment that was offered to Mr. Murray while
GR1 (Government): in custody.
GR1 (Government): The Grand Chamber thereby drew attention to the finding of the joint court of justice in its decision upon review of September 2012 that no treatment had taken place.
GR1 (Government): In answering that question, let me reiterate the joint court's conclusion in its judgment of 1980 that custodial treatment on Curaçao was not possible.
GR1 (Government): The joint court's finding of 2012 that no treatment had taken place merely echoes that conclusion, and the government has no grounds to argue differently.
GR1 (Government): That said, Mr. President, I note that the applicants do not call
GR1 (Government): into question the joint court's 1980 judgment itself or the sentence it imposed, but rather a lack of mental health treatment offered to Mr. Murray.
GR1 (Government): Since, however, such treatment was specifically not part of the judgment, the authorities can hardly be blamed for not executing a measure that wasn't imposed by the independent judge.
GR1 (Government): The foregoing does not mean that there have been no contacts with mental health workers in the course of Mr. Murray's detention
GR1 (Government): and that no help was available to him.
GR1 (Government): As I said before, the file contains 11 reports of psychiatrists, psychologists, and social workers.
GR1 (Government): Among these reports is a letter of the 6th of September 1991 to the Procurator General of Curaçao, drawn up in Spanish and translated in Dutch, of the psychiatrist Dr. Miriam Montoya
GR1 (Government): Orejuela concerning Mr. Murray's wish to be transferred to Aruba.
GR1 (Government): It was referred to by the applicants' council just now.
GR1 (Government): I single out this particular letter since it confirms that Mr. Murray had been placed under psychiatric observation on his
GR1 (Government): arrival in what was then called the Corralspecht prison in Curaçao, and that good contact of a therapeutic nature had been established with a view to his rehabilitation.
GR1 (Government): Dr. Montoya observes that a transfer to Aruba will further
GR1 (Government): contribute to Mr. Murray's rehabilitation, an observation
GR1 (Government): that was explicitly shared by the Public Prosecution Service and by the Joint Court, witnessed that court's letter to the Governor of October 1997, which is in the Grand Chamber's possession.
GR1 (Government): In other words, towards the end of the 1990s, all those involved were concerned with the objective of rehabilitation and agreed with Mr. Murray that a transfer to Aruba, notwithstanding the
GR1 (Government): limited availability of mental health care there, would serve best to reach that aim.
GR1 (Government): Already following the Grand Chamber's letter of July, the authorities on Curaçao have attempted on numerous occasions to trace Dr. Montoya in order to seek further amplification of
GR1 (Government): her letter, if at all feasible after a quarter of a century, but to no avail, unfortunately.
GR1 (Government): In the absence of such amplification, the government relies on the contents of Dr. Montoya's letter, which in
GR1 (Government): itself it considers sufficiently clear for present purposes.
GR1 (Government): I note in passing, since the Grand Chamber in its letter of the 4th of December inquired about Mr. Murray's stay at the
GR1 (Government): Forensic Observation and Counseling Unit in Curaçao, that he was not placed in that unit during the years before his transfer to Aruba.
GR1 (Government): Insofar as Mr. Murray's stay in the Aruba Correctional
GR1 (Government): Institute is concerned, the government observes, in conformity with the conclusions of both the joint court and the Institute's psychologist, Dr. Maduro, in a
GR1 (Government): letter of the 1st of September, which is in the Grand Chamber's possession, that no treatment took place there either.
GR1 (Government): I am not informed of any other psychiatric contacts in Aruba until 2011, when the review of Mr. Murray's sentence was
GR1 (Government): carried out.
GR1 (Government): I repeat, however, that Mr. Murray himself for many years
GR1 (Government): requested to be transferred to Aruba, his country of origin, even though he was well aware that availability of psychiatric help was limited there.
GR1 (Government): This fact, again, shows that the concept of rehabilitation cannot simply be narrowed down to psychiatric help or treatment alone, and may depend on several factors, including proximity of the family.
GR1 (Government): Furthermore, I should stress that a lack of mental health assistance, on which the applicants now put so much emphasis, never appeared to be Mr. Murray's main concern,
GR1 (Government): neither in his contacts with the Institute's social workers, nor in the numerous letters he addressed to various authorities.
GR1 (Government): In that sense, we cannot find any indication in the files that Mr. Murray was not placed under a regime befitting his
GR1 (Government): mental condition.
GR1 (Government): Mr. President, the final thing I should say on the issue of
GR1 (Government): Mr. Murray's life sentence is this.
GR1 (Government): It is true that the Grand Chamber in the Vinter case held that the question of an irreducible sentences compatibility with Article 3 must be analyzed from the perspective of the moment when a prisoner begins serving that sentence.
GR1 (Government): While I realize very well that the government is appearing here today to provide answers, not to raise questions, the question inevitably arises whether it is reasonable to hold the state accountable under the convention for a situation which started 35 years ago and became the subject of an application only five years ago.
GR1 (Government): In other words, 30 years after it commenced.
GR1 (Government): And even more pertinent, is it reasonable to measure the state's behavior since 1980 according to a standard that was introduced by the court for the first time in 2013?
GR1 (Government): These questions are all the more relevant since a review of Mr. Murray's situation was initiated only four months
GR1 (Government): after the application was received by the government.
GR1 (Government): And the law was amended a couple of months later.
GR1 (Government): In this regard, the lonely dissenting opinion of Judge Villiger to the Finta judgment sheds an interesting light, where he writes that only an examination at the point in time when the court comes to examine the case would enable the court to do justice to the length of prison time which a detainee has already served.
GR1 (Government): There is no doubt that 34 years in prison is a long time.
GR1 (Government): It is, however, not as long as the time spent in detention by the applicant in the case of Legere versus France, namely 41 years.
GR1 (Government): The court did not find a violation in that case.
GR1 (Government): Mr. President, what is left for me to do now, and I will do
GR1 (Government): it extremely briefly, is to address the remaining complaints about Mr. Murray's conditions of detention,
GR1 (Government): notably the physical circumstances in the Aruba Correctional Institute.
GR1 (Government): I note from paragraph 27 of the applicant's memorial of the 10th of August, 2014, that they are not pursuing their complaint in relation to the condition of the prison buildings.
GR1 (Government): As a matter of fact, I have very little to add in this respect to our memorial, and indeed to the finding of the chamber in its judgment of December 2013.
GR1 (Government): Should, however, the Grand Chamber decide to examine this part of the original application ex officio, I would draw particular attention to the fact that the domestic proceedings lodged by Mr. Murray and 151 other
GR1 (Government): inmates of the Aruba Correctional Institute were terminated by a judgment of the Joint Court of Justice of April, 2011, in which the Joint Court meticulously considered the norms developed by the Committee for the Prevention of Torture and the relevant case law of the court.
GR1 (Government): The Joint Court granted several of the complaints while rejecting others.
GR1 (Government): Even if Mr. Murray could have claimed individually to have
GR1 (Government): been treated in violation of Article III of the Convention as a result of the physical circumstances under which he was detained, an assumption which the government does not support, the Joint Court's 2011 judgment must be considered to have provided sufficient relief for that complaint.
GR1 (Government): in view of all the arguments I have put forward, the government of the Netherlands is of the view, the government of the Kingdom of the Netherlands, rather, is of the view that there has been no violation whatsoever of Article III of the Convention.
Dean Spielmann (JudgeP): Thank you Mr. Böcker. I turn now to the judge if there are questions.
Dean Spielmann (JudgeP): Judge Silvis, please.
Johannes Silvis (Judge): I have two questions, and one question concerns a clarification.
Johannes Silvis (Judge): But my first question concerns the government.
Johannes Silvis (Judge): My question to the government is about the scope of the possible retroactive effect of the court's judgments.
Johannes Silvis (Judge): After the Vinter judgment, it's clear that life sentences, if proportionate to the facts, can only be in conformity with Article 3 of the Convention if the life sentence is de facto and de jure reducible.
Johannes Silvis (Judge): There is a longstanding position on the part of the court concerning cases in which the applicants have already lodged a complaint with the court at the time of the reversal of case law.
Johannes Silvis (Judge): As they are in exactly the same position as the successful applicant, they should be treated in the same way.
Johannes Silvis (Judge): So one of the differences between the Vinter position and Murray is that at the moment, the court may have to deal with the merits of this case.
Johannes Silvis (Judge): There has been a significant change in the law of Curaçao by the introduction of the review system.
Johannes Silvis (Judge): Now, the government states that the pardon system is already in conformity with the Vinter criteria, if I understand you well.
Johannes Silvis (Judge): But perhaps you may explain why, when introducing the review system, the arguments for introducing this system were to bring the legislation in conformity with current standards of human rights.
Johannes Silvis (Judge): Was it necessary to introduce this new system if the old system already met the criteria?
Johannes Silvis (Judge): Perhaps you would like to elaborate on this.
Johannes Silvis (Judge): Now, my question to the applicants.
Johannes Silvis (Judge): One very small but perhaps important point is the representative of the government stated that there is a pardons act.
Johannes Silvis (Judge): And the representative of the government also stated that that was not in line with the position presented by the applicant, because the applicant referred to the Constitution in which there is a basis for a pardon request.
Johannes Silvis (Judge): Perhaps you could explain whether there is a difference on this legal point between the government and the representative of the applicant.
Johannes Silvis (Judge): The point of clarification is this.
Johannes Silvis (Judge): Listening to your intervention, you refer to an observation of the CPT, the Committee on the Prevention of Torture, observing in 2013 an incapacity culture in the prison institutions in the Antilles.
Johannes Silvis (Judge): However, in 2013, the CPT has not visited the Antilles.
Johannes Silvis (Judge): There is, however, and I think you are referring to this observation report, there is an observation report of two experts assigned by the Dutch government which relates indeed to the CPT observations from 2007 reported in 2008.
Johannes Silvis (Judge): And according to these experts, there are shortcomings, especially in relation to the promotion of sensible activities for the inmates.
Johannes Silvis (Judge): And in this context, they note that the guards are trained to keep control and order, but they are not equipped in the process of re-socialization.
Johannes Silvis (Judge): Is that the observation you have in mind when expressing that there is an incapacity culture in the prisons of the Antilles, more specifically in the Correctional Institute in Aruba?
Johannes Silvis (Judge): Perhaps you may clarify this issue.
Johannes Silvis (Judge): Thank you.
Dean Spielmann (JudgeP): Thank you Judge Sylvies, Judge Kjølbro.
Jon Fridrik Kjølbro (Judge): Both parties have in their pleadings before the Grand Chamber addressed the importance of the principle of rehabilitation as recognized in this court's case law.
Jon Fridrik Kjølbro (Judge): It has been mentioned that the convicted person should know what he must do to rehabilitate himself in order to have the prospect of release.
Jon Fridrik Kjølbro (Judge): It has also been mentioned that the convicted person should be allowed to rehabilitate himself in order to have the prospect of release.
Jon Fridrik Kjølbro (Judge): In other words, it has been argued that the state should not hinder the convicted person from rehabilitating himself.
Jon Fridrik Kjølbro (Judge): This may, in my view, be seen as a negative obligation on the state following from Article III, not to hinder but to allow.
Jon Fridrik Kjølbro (Judge): At the same time, it has been argued today that the state has to provide the convicted person with necessary treatment.
Jon Fridrik Kjølbro (Judge): This may, in my view, be seen as a positive obligation on the state to rehabilitate the convicted person, to rehabilitate or to assume responsibility for the rehabilitation of the convicted person.
Jon Fridrik Kjølbro (Judge): My question to the parties concerned these two aspects of the principle of rehabilitation, the positive and the negative aspect.
Jon Fridrik Kjølbro (Judge): In the view of the parties, taking into account the court's case law, is it necessary to make a distinction between these two aspects of the principle of rehabilitation?
Jon Fridrik Kjølbro (Judge): In other words, are they on an equal footing should the rights of the applicant and the obligation of the state be treated on an equal footing?
Paulo Pinto de Albuquerque (Judge): I have two questions for the government, but of course the applicant may also elaborate on these questions.
Paulo Pinto de Albuquerque (Judge): The applicant has said that no plan for the rehabilitation of James Murray has ever been prepared by the prison authorities who took care of him.
Paulo Pinto de Albuquerque (Judge): The applicant has also said that it is the policy of the Kingdom of Netherlands that all life prisoners do not qualify for activities aiming at rehabilitation.
Paulo Pinto de Albuquerque (Judge): And the applicant has even quoted the Dutch Secretary for Justice and Security.
Paulo Pinto de Albuquerque (Judge): My two questions are the following.
Paulo Pinto de Albuquerque (Judge): First, can you confirm that it is the policy of the Kingdom of Netherlands that all life prisoners do not qualify for activities aiming at reintegration, as Mr. Teeven has said?
Paulo Pinto de Albuquerque (Judge): Second, can you confirm that no plan for the rehabilitation of James Murray was ever prepared during the time he spent in prison, over 30 years?
Dean Spielmann (JudgeP): Judge Vučinić
Nebojša Vučinić (Judge): One very, very short question for government.
Nebojša Vučinić (Judge): Which were the main reasons, I would say compelling reasons, made the transfer of applicant unfeasible in the realm of Europe to custodial clinic for adequate psychological or psychiatric treatment?
Dean Spielmann (JudgeP): I have three questions.
Dean Spielmann (JudgeP): And I would like to refer to the government's memorial concerning the two first questions, and in particular to paragraphs 42 and 45.
Dean Spielmann (JudgeP): My first question concerns what is stated in paragraph 42 of the government's memorial.
Dean Spielmann (JudgeP): I read the following, and I quote, with respect to the two prisoners in the ICN serving life sentences, one of whom was the applicant, the CPT has advised the Aruban authorities to draw up a policy for such prisoners.
Dean Spielmann (JudgeP): And then I read that, I quote, the government would note that in practice, the applicant was able to engage in a relevant daily program.
Dean Spielmann (JudgeP): He is a talented upholsterer and worked eight hours a day in the ICN's upholstery department.
Dean Spielmann (JudgeP): My question is the following.
Dean Spielmann (JudgeP): Was the applicant able to engage in a relevant daily program in the penitentiary in Curaçao?
Dean Spielmann (JudgeP): And if so, what would such a program have been?
Dean Spielmann (JudgeP): Could both parties give a concrete description of a day in prison in Curaçao?
Dean Spielmann (JudgeP): My second question concerns paragraph 45 of the government's memorial.
Dean Spielmann (JudgeP): I read the following, and I quote again, the government has requested and obtained permission from the applicant's representative to be given information about what kind of psychiatric help was given to the applicant while he was detained in the SDKK.
Dean Spielmann (JudgeP): However, up until the date of this memorial, the government has not received that information from the ICN medical staff.
Dean Spielmann (JudgeP): My question would be, do we have more detailed information today?
Dean Spielmann (JudgeP): The last question is a procedural issue concerning the proceedings before the grand chamber.
Dean Spielmann (JudgeP): If I understood the government's representative, Mr. Böcker,
Dean Spielmann (JudgeP): well, this morning he asked to give the government the chance to develop financial issues.
Dean Spielmann (JudgeP): Now, my question is the following.
Dean Spielmann (JudgeP): You have elaborated on Article 41 of the convention in your memorial.
Dean Spielmann (JudgeP): Does the government ask the court, in the event, I insist, in the event a violation were to be found, to reserve Article 41?
Dean Spielmann (JudgeP): Did I interpret your statement correctly?
Dean Spielmann (JudgeP): Or do you intend to elaborate immediately on this issue?
Dean Spielmann (JudgeP): And in this event, I would allow, as usual, two more weeks to file an additional comment concerning Article 41, which would be also submitted to the applicant's lawyers for comment, as we do it usually.
Dean Spielmann (JudgeP): So thank you very much for the time being.
Dean Spielmann (JudgeP): We will resume the hearing at 10.40.
Dean Spielmann (JudgeP): Sorry, 10.50.
Dean Spielmann (JudgeP): 10.50.
Dean Spielmann (JudgeP): So 20 minutes break.
Dean Spielmann (JudgeP): I call Professor Reijntjes.
AP1 (Applicant): First, I will go into the questions of the court, and afterwards I have a few points in reply to the submissions of the government.
AP1 (Applicant): First, the questions of the honorable judge from the Netherlands on pardons.
AP1 (Applicant): There is, on Curaçao, no pardons act later on Aruba.
AP1 (Applicant): There's only one article in the Constitution.
AP1 (Applicant): Before 2010, it only stated that the governor could grant a pardon, nothing more.
AP1 (Applicant): And since 2011, it was added that the governor has to ask the court for its advice on a pardon.
AP1 (Applicant): Further regulation does not exist.
AP1 (Applicant): And on the CPT report, we quoted, we thought from a CPT report, but indeed it could be that we unconsciously quoted from the report of the government experts of 2013 made in preparation of the planned visit of the CPT in, I think, 2014.
AP1 (Applicant): The honorable judge from Denmark asked whether it would be necessary to distinguish between a negative obligation not to hinder and a positive obligation to assist.
AP1 (Applicant): We think accepting a positive obligation to assist implies a negative obligation not to hinder.
AP1 (Applicant): It applies to do instead of hindering.
AP1 (Applicant): Mr. President, you asked us to try to describe a day in prison.
AP1 (Applicant): I think I can be short on this.
AP1 (Applicant): The Curaçao prison is under the population also known as Miracelu.
AP1 (Applicant): That means, look at the sun.
AP1 (Applicant): A day in prison on Curaçao, and I don't think it will be different on Aruba, consists in sitting, waiting till the end of your prison term has come, and in the while, looking at the sun.
AP1 (Applicant): In reply to the submissions of the government, the following, on pardons.
AP1 (Applicant): The government describes that since 1954, nine whole life sentences were given until 2012, I expect, because afterwards there came some more.
AP1 (Applicant): One pardon has been given to a prisoner when dying.
AP1 (Applicant): One committed suicide.
AP1 (Applicant): And that's an interesting case.
AP1 (Applicant): The man who committed suicide has also been 34 years in prison.
AP1 (Applicant): He came from Saba, the island of Saba.
AP1 (Applicant): He made many requests for a pardon.
AP1 (Applicant): They were all refused or not answered at all, like in the case of Mr. Murray.
AP1 (Applicant): He became desperate and committed suicide before he had received an answer to his last request for a pardon.
AP1 (Applicant): Now the government comes and tells us that they intended to grant him a pardon upon his last request.
AP1 (Applicant): I don't think I have to comment any more on this case.
AP1 (Applicant): More important, would Mr. Murray have
AP1 (Applicant): been able to undergo treatment in the Netherlands?
AP1 (Applicant): Honestly, we don't know.
AP1 (Applicant): But we know that no assessment has made after his conviction on his capabilities in this respect.
AP1 (Applicant): He spoke Dutch and English, like many people in the Netherlands and especially in Dutch prisons who receive treatment.
AP1 (Applicant): He was a simple man.
AP1 (Applicant): But at least on Aruba and on Curaçao, he was thought, but especially on Aruba, he was thought capable for many years to instruct younger persons, younger prisoners in upholstery.
AP1 (Applicant): Could he have been transferred according to law?