CASE OF MURRAY v. THE NETHERLANDS

1. The case originated in an application (no. 10511/10) 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 Dutch national, Mr James Clifton Murray (“the applicant”), on 22 February 2010. The applicant passed away on 26 November 2014. On 6 December 2014 his son, Mr Johnny Francis van Heyningen, and his sister, Ms Altagracia Murray, expressed their wish to pursue the case before the Court.
2. The applicant was represented by Ms C. Reijntjes-Wendenburg, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.
3. The applicant initially alleged that, in violation of Article 3 of the Convention, his life sentence was de jure and de facto irreducible. Relying on the same provision, he also complained of the conditions of his detention in prisons in Curaçao and Aruba, namely of the condition of prison buildings and the absence of a separate regime for life prisoners. He also claimed that he had not been placed in a regime befitting his mental condition and that this constituted a further violation of Article 3. On 2 November 2012, following the conclusion of the review of the applicant’s life sentence (see paragraphs 4 and 31-32 below), he expanded on the complaint under Article 3 the alleged irreducibility of his life sentence, claiming that even if a de jure possibility of release had been created, de facto he had no prospect of release as he had never been provided with psychiatric treatment and the risk of recidivism would therefore continue to be considered too high.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 15 April 2011 notice of the application was given to the Government. The examination of the case was adjourned on 29 November 2011 pending a periodic review of the applicant’s life sentence (see paragraphs 31-32 below) and was resumed on 19 November 2013. On 10 December 2013 a Chamber composed of Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Nona Tsotsoria, Kristina Pardalos, Johannes Silvis, judges, and Santiago Quesada, Section Registrar, having deliberated in private, delivered its judgment. It decided unanimously to declare inadmissible a complaint under Article 3 of the Convention concerning a lack of safeguards against inter-prisoner violence, complaints under Article 5 §§ 1 and 4 and Articles 6 and 13, as well as a complaint that the continued applicability of Curaçaoan law to his detention in Aruba was incompatible with international law. It unanimously declared admissible the remaining complaints under Article 3 and held that there had been no violation of that provision in respect of the life sentence and no violation in respect of the prison conditions.
5. In a letter of 5 March 2014, the applicant requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention. A panel of the Grand Chamber granted the request on 14 April 2014.
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. The applicant and the Government each filed observations (Rule 59 § 1).
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 14 January 2015 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMr R.A.A. Böcker, Ministry of Foreign Affairs, Agent, Mr M. Kuijer, Ministry of Security and Justice, Mr A. van der Schans, Advocate-General, Curaçao Public Prosecutor’s Office, Advisers;
(b) for the applicantMs C. Reijntjes-Wendenburg, Counsel, Prof. J. Reijntjes, Adviser.
The Court heard addresses by Ms Reijntjes-Wendenburg and Mr Böcker, and also their replies and those of Prof. Reijntjes and Mr Kuijer to questions from judges.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1953 on the island of Aruba. In 2013, while serving a sentence of life imprisonment in a prison in Aruba, he was diagnosed with terminal cancer. In September 2013 he was transferred from the prison to a nursing home in Curaçao. On 31 March 2014 he was granted a pardon ( gratie ) entailing his immediate release. He returned to Aruba, where he passed away on 26 November 2014.
9. At the time the applicant was convicted and sentenced, the Kingdom of the Netherlands consisted of the Netherlands (the Realm in Europe) and the Netherlands Antilles (consisting of the islands Aruba, Bonaire, Curaçao, Sint Maarten, Sint Eustatius and Saba). On the Netherlands Antilles, the Head of State of the Kingdom (the Queen, at that time) was represented by a Governor. In 1986 Aruba became an autonomous “country” ( land ) within the Kingdom, having its own Governor. From 10 October 2010 the Netherlands Antilles ceased to exist other than as a collective name for the six islands in the Caribbean Sea belonging to the Kingdom of the Netherlands. The Kingdom currently consists of four autonomous countries: the Netherlands (that is, the Realm in Europe), Aruba, Curaçao and Sint Maarten, whereas Bonaire, Sint Eustatius and Saba are special municipalities of the Netherlands. Each of the three island countries (Aruba, Curaçao and Sint Maarten) has a Governor.
10. The countries of the Kingdom have their own legal systems, which may differ from each other.
11. The Joint Court of Justice of the Netherlands Antilles, which imposed the life sentence on the applicant in 1980, became the Joint Court of Justice of the Netherlands Antilles and Aruba in 1986, and is currently called the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba. For ease of reference it will hereafter generally be referred to as “the Joint Court of Justice”.
12. On 31 October 1979 the First Instance Court ( Gerecht in Eerste Aanleg ) of the Netherlands Antilles found the applicant guilty of the murder of a six-year-old girl on the island of Curaçao. The judgment of the First Instance Court included a summary of a psychiatric report that had been drawn up at the request of the public prosecutor ( Officier van Justitie ). The conclusion reached by the psychiatrist was summarised as follows in the judgment (the conclusion and advice contained in the psychiatrist’s report are set out in full in paragraph 33 below).
“... That the defendant suffers from a pathological disturbance, in particular a very limited development of his mental faculties ... Considering this, the defendant should be regarded as having diminished criminal responsibility [ verminderd toerekeningsvatbaar ], but nevertheless should mainly be held criminally liable for his actions. It is noted in particular that the defendant cannot be considered to have been mentally insane before, during or after the commission of the crime ... Even though the defendant is capable of committing a similar offence in the future, it is not necessary to commit him to a regular mental hospital [ krankzinnigengesticht ], but instead he should be placed in a custodial clinic for psychopaths [ psychopatenasiel ] to undergo a rather lengthy treatment under very strict surveillance. In Curaçao there is a choice only between prison and the national (regular) mental hospital [ Landspsychiatrisch Ziekenhuis ]. Taking into consideration that the risk of recidivism is for the time being very high, even if treatment could possibly start immediately, and that, consequently, intensive surveillance is of primordial importance (such surveillance being impossible in the national mental hospital), and the fact that the defendant is not to be considered criminally insane within the meaning of the law, admission to the national mental hospital is wholly contraindicated. The sole option remaining is for him to undergo his punishment in prison (transfer to a custodial clinic in the Netherlands is impossible on account of the defendant’s limited intelligence and insufficient ability to express himself verbally). It is strongly advised that, where possible in the prison setting, an attempt should be made to attain a stronger personality structure in the defendant in order to avoid recidivism in the future.”
13. The First Instance Court considered that a life sentence, the imposition of which had been sought by the Public Prosecutor, would only be condign punishment if it was established from the outset that the applicant’s condition was not amenable to improvement. As the court found that this could not be deduced from the psychiatrist’s report, it sentenced the applicant to twenty years’ imprisonment.
14. Both the applicant and the Public Prosecution Service ( Openbaar Ministerie ) submitted an appeal against the judgment of the First Instance Court.
15. On 11 March 1980 the Joint Court of Justice quashed the judgment of the First Instance Court. It convicted the applicant of murder, finding it proven that he had deliberately and with premeditation taken the life of the six-year-old girl. It held that he had conceived the intention and taken the decision to kill her after calm consideration and quiet deliberation and, in order to execute that intention, had stabbed her repeatedly with a knife, as a result of which she had died. The applicant had killed the child, who was the niece of an ex-girlfriend, in revenge for her ending their relationship. The Joint Court of Justice sentenced the applicant to life imprisonment. In this connection it cited part of the psychiatrist’s report as summarised in the judgment of the First Instance Court (see paragraph 12 above) and furthermore held, inter alia, as follows.
“Considering that in view of the findings of the psychiatrist, which the court accepts and adopts as its own, and in particular the fact that the risk of recidivism is very significant, the interest of society in being protected against any such recidivism should, in the opinion of the court, carry the most weight, having regard to the personality of the accused;
Considering that − however regrettable − there is no possibility in the Netherlands Antilles for the imposition of a TBS order [ terbeschikkingstelling met bevel tot verpleging van overheidswege ] for confinement in a custodial clinic, which would be the most appropriate measure in this case; that placement in a custodial clinic in the Netherlands in similar cases has in the past proved impracticable – as is known to the court ex officio – and is in the present case moreover considered impossible by the psychiatrist due to the accused’s limited intelligence and insufficient ability to express himself verbally;
Considering that in the present case there is no way in which the aforementioned preponderant interest can adequately be protected in these lands other than through the imposition of a penalty which will prevent the accused’s return to society, and thus that only a sentence of life imprisonment qualifies as suitable;
Considering that the court is aware that this sentence does not – in principle – provide the accused with any prospect of one day returning to society as a free man, a fact which will presumably make this sentence heavier to bear for the accused than a temporary sentence of imprisonment, but which in the court’s opinion should not lead to the aforementioned interests, which, as set out above, should carry the most weight, being sacrificed;
... sentences the accused to imprisonment for life;
16. On 25 November 1980 the Supreme Court ( Hoge Raad ) dismissed the applicant’s appeal in cassation against the judgment of the Joint Court of Justice.
17. On 24 November 1981 the applicant filed a request for revision with the Joint Court of Justice which was rejected on 6 April 1982.
18. The applicant served the first nineteen years of his sentence in the Koraal Specht prison (which was subsequently renamed Bon Futuro and is currently called Sentro di Dentenshon i Korekshon Korsòu or “SDKK”) in Curaçao. This prison has, since 1990, accommodated a special unit for prisoners showing signs of mental illness or serious behavioural disorders, the so-called Forensic Observations and Counselling Unit ( Forensische Observatie en Begeleidings Afdeling – “FOBA”). The FOBA comprises two separate sections, one for observation and one for treatment. Although the applicant submitted that he had spent some time in the observation section, the Government stated during the hearing before the Grand Chamber on 14 January 2015 that while he was detained in Curaçao the applicant had not been placed in either unit.
19. The applicant’s first thirteen years in prison were marked by incidents: fights, extortion, drug abuse, etc., some of which led to periods spent in solitary confinement.
20. On 1 December 1999 the applicant was transferred to the Korrektie Instituut Aruba (“KIA” – also referred to as the Instituto Coreccional Nacional or “ICN”) in Aruba, having repeatedly requested such a transfer from 1985 onwards, in order to be closer to his family. At the same time the responsibility for the execution of the applicant’s sentence was transferred from the authorities of the Netherlands Antilles to those of Aruba. By agreement of 1 December 1999, the Minister of Justice of Curaçao, however, made the transfer conditional, stipulating that any measure (for example, pardon, reduction of sentence, temporary leave) involving the applicant’s release from prison would be subject to the consent of the Curaçao Public Prosecution Service.
21. In the course of his incarceration, the applicant unsuccessfully petitioned for a pardon on a considerable number of occasions; the exact number cannot be ascertained since the files are no longer complete owing to the lapse of time. From the information and documents contained in the Court’s case file, the following events can be established.
22. In a letter of 26 April 1982, the applicant requested that the Minister of Justice of Curaçao review his life sentence and give him some kind of relief. He submitted that the prison where he was being detained offered no educational or vocational programme capable of benefitting his personal and mental development, whereas the frustration and disappointment of being isolated and neglected was creating mental anguish that would surely drive him to the brink of mental illness. This request was rejected by the Governor of the Netherlands Antilles on 9 August 1982 for the reason that there were no grounds on which to grant it.
23. A request lodged on an unknown date was rejected on 29 November 1983. It appears that the applicant also lodged requests on 6 June 1990, 11 April 1994 and 17 May 1996 but no further information has been provided about them.
24. The case file contains a number of documents (“consultation sheets”) on which each of the three judges who were consulted before the Joint Court of Justice issued its advice to the Governor on a particular application for pardon could write their opinion on that application. One of the judges consulted about the applicant’s request for a pardon of 31 July 1997 wrote as follows in October 1997:
“... It can be deduced from the psychiatric report in the file that the risk of recidivism was deemed great. The psychiatrist considered that treatment of the petitioner in prison was indicated, but nothing has of course come of this. I still find that it would be irresponsible to grant a pardon to the petitioner, who has in the meantime reached the age of 44. ...”
A second judge wrote on the consultation sheet that he agreed with his colleague and that a new psychiatric report might be requested, which could also be important for the future in order to be able to monitor the applicant’s development and in due course perhaps advise positively on a request for a pardon.
In a letter of 22 October 1997, the Joint Court of Justice advised the Governor not to grant a pardon, writing, in so far as relevant, as follows.
“... It appears from the psychiatric report in the file that the petitioner has very inadequately developed mental faculties ... In said psychiatric report it is concluded that the petitioner is certainly capable of committing the same offence or of disrupting public order in a different way. The Court notes that the petitioner has not undergone any (psychiatric) treatment in prison aimed at strengthening his personality structure in order to prevent him reoffending in the future.
As the crime committed by the petitioner shocked the legal order so profoundly, the granting of a pardon would not be understood by the community, not even after such a long time.
Having regard to the foregoing the Court is of the view that for the time being it would be irresponsible to pardon the now 44-year-old petitioner.
The Public Prosecution Service has attempted, so far in vain, to bring about the petitioner’s transfer to the KIA in Aruba, in accordance with his wishes, in view of the fact that he has relatives living there. This wish of the petitioner ought now to be acted upon. The Court therefore supports this reasonable desire of the petitioner.”
The request for a pardon was refused on 20 November 1997.
25. On 30 January 2002 the Acting Governor of the Netherlands Antilles rejected the applicant’s request of (probably) 14 August 2001 to reduce his sentence by means of a pardon, considering that no facts or circumstances justifying such a course of action had either been adduced or become apparent.
26. On 26 January 2004 the Advocate General of the Netherlands Antilles wrote, in so far as relevant, as follows to the Joint Court of Justice in relation to the applicant’s request for a pardon lodged on 27 October 2003.
“... The opinion of the Public Prosecution Service is unchanged. Prior to committing the offence in issue the suspect [ sic ] had been convicted of raping a young girl and sentenced to imprisonment. That sentence did not have a preventative effect on the petitioner. The petitioner was extensively examined in relation to the offence in issue and the extensive report explicitly mentions the risk of recidivism. It does not appear that the circumstances have changed.
... The granting of a pardon on humanitarian grounds will, even if such reasons can be said to exist ( quod non ), not be understood by society nor, in my view, be accepted. Humanitarian grounds may be said to have been the basis for the transfer to the KIA. As far as I am concerned that is sufficient.”
One of the judges of the Joint Court of Justice, while subscribing to the negative advice given by the Advocate General, wrote on the consultation sheet:
“At some point in time a moment will however arrive when mercy comes before law. That moment has not been reached yet, but it may do in ten or twenty years.”
The Joint Court of Justice advised that the applicant’s request be refused on the grounds indicated in the advice of the Advocate General of 26 January 2004.
27. The Procurator General, in a letter to the Joint Court of Justice of 5 August 2004, recommended that that court issue negative advice on the application for a pardon lodged by the applicant on 17 June 2004. He wrote, in so far as relevant, as follows.
“... Having regard to the content of his request for a pardon together with the interview with him that was recently broadcast on television, the petitioner obviously still does not, in my opinion, realise the gravity of the diabolical act committed by him on 23 May 1979. ...
In the interview ... Murray also had the nerve to play down his heinous crime by saying that others who had already been released had committed more serious offences. ...
The petitioner has never – either at the trial, on the delivery of the verdict, or in the aforementioned interview – shown remorse. ...
Murray claims that he has behaved like a model prisoner in the course of the past twenty-two years. Nothing could be further from the truth; in any event, not as regards the period of detention spent in prison here [that is, in Curaçao]. During those years the petitioner has misbehaved numerous times, inter alia, by issuing threats, committing thefts, fighting with fellow inmates, committing indecent acts with third parties, and attempting to poison a fellow inmate. ...
Although he may lately have displayed good behaviour, this does not detract from the fact that the consequences of his demonic deed can never be redressed; and it appears in view of recent reactions in our community, that society remains deeply shocked. Our society cannot afford to take any risks with such a murderous psychopath. In order for our community’s interests to be adequately protected, the return of the petitioner to that community is to be prevented. In my opinion it cannot be excluded that this solidly built 51-year-old man, with his serious criminal behaviour ..., and currently in the prime of his life, will once again reoffend.
The above-mentioned interview as well as the fact that he (even though he is entitled to do so) has once again seen fit to lodge a request for a pardon for the umpteenth time has caused great commotion in our society. Anxious civilians, also including relatives of the victim, have fiercely protested in the media against a possible pardon. ...
The opinion, voiced occasionally, that a life sentence in practice boils down to a sentence of between twenty and twenty-five years is not based on the Criminal Code and does not find support in law either. The Antillean legislator has also never intended for this to be the case. ...”
The request for a pardon was rejected by the Governor on 1 March 2006 for the reason that no facts or circumstances justifying a pardon had either been adduced or become apparent.
28. In a letter of 28 September 2007, the Joint Court of Justice advised the Governor to reject a request for a pardon lodged by the applicant as there was no appearance of any circumstance which the trial court had failed or had been unable to take (sufficiently) into account at the time of its decision and which, had the court been sufficiently aware of it, would have caused it to impose a different sentence or to refrain from imposing any sentence. Neither had it become plausible that the execution of the trial court’s decision or its continuation did not reasonably serve any of the aims pursued through the application of the criminal law.
The petition for pardon to which this advice of the Joint Court of Justice related was rejected by the Governor, on the grounds set out in that advice, on 16 January 2008.
29. In January 2011 the three judges, consulted on a request for a pardon submitted by the applicant on 31 August 2010, wrote on the consultation sheet “no grounds present”, “reject” and “reject”.
30. On 29 August 2013 the applicant requested a pardon in view of his deteriorating health. The head of the social-work department of the prison in Aruba advised that a pardon be granted, as this would allow the applicant to die in a dignified manner in the presence of his family. By a decision of 31 March 2014, the Governor of Curaçao acceded to this request and granted the applicant a pardon (see also paragraph 8 above), entailing the remission of his prison sentence, as in the circumstances the further execution of that sentence was no longer deemed to serve a useful purpose.
31. On 21 September 2012 the Joint Court of Justice, having submitted the applicant’s life sentence to the periodic review prescribed by Article 1:30 of the Curaçao Criminal Code, which had come into force on 15 November 2011 (see paragraphs 55-56 below), decided that the applicant’s custodial sentence still served a reasonable purpose after thirty-three years.
32. The decision of the Joint Court of Justice firstly sets out the proceedings which took place before that court: hearings had taken place on 10 May and 6 September 2012, at which the applicant, who was represented by counsel, was heard. A member of staff of the prison in Aruba was also heard, as were the psychologist M.V., the psychiatrist G.E.M. and relatives of the victim and their representative. The decision cites relevant parts of the sentencing court’s judgment of 11 March 1980 and summarises the findings contained in the reports drawn up about the applicant for the purpose of the periodic review (see paragraphs 36-42 below). A section entitled “The position of the relatives of the victim” reads as follows.
“The relatives indicated at the hearing that they did not agree with a possible release of the convicted person. They stated that news of a possible release had reopened old wounds, that they were experiencing the psychological consequences of this, and that they were afraid of the convicted person. He has threatened them in the past and they have not observed any feelings of remorse or regret in him.
The relatives’ representative submitted that the risk of recidivism was unacceptable for them.
In a report drawn up by the Curaçao Foundation for Probation and Social Rehabilitation of 10 May 2012 the Rapporteur addresses the position of the relatives. The Rapporteur notes in the first place that the relatives have so far barely been provided with psychological help or with support in coming to terms with their bereavement. He concludes that the victim’s mother still appears to struggle with issues she has not dealt with and about which she barely speaks, and that the father requires professional help in order to cope with his feelings. The relatives have told the Rapporteur that they feel insecure at the mere thought of the convicted person being released. They have further indicated that ever since the arrest of the convicted person and until the present time they have been ‘living in a prison’ and that this has also had adverse repercussions on their other children. The Foundation for Probation and Social Rehabilitation concludes that a possible conditional release of the convicted person would at this stage have far-reaching psychological consequences for the relatives.”
The decision goes on to observe that, in the Acting Procurator General’s submission, there was not a single objective indication from which it could be inferred that the risk of the applicant’s committing an offence had disappeared or diminished, that an early release would seriously shock the surviving relatives, and that it would also shock society to such an extent that this would hinder the applicant’s possible reintegration. After describing the position put forward on behalf of the applicant, the Joint Court of Justice then came to its assessment, which, in so far as relevant, reads as follows.
“8.2 The convicted person’s deprivation of liberty has at present lasted considerably more than twenty years, namely over thirty-three years. The court must therefore assess whether the further unconditional execution of the life sentence no longer serves a reasonable purpose.
8.3 It follows from the reasons given by the [sentencing] court for the imposition of the life sentence ... that the aim of this sentence was to protect society against recidivism by the convicted person. The risk of recidivism was deemed by the [sentencing] court to be particularly high, while treatment was not considered possible.
8.4 The Court will therefore first and foremost have to assess to what extent the risk of recidivism existing at the time is still present today. In this connection it is firstly to be noted that at the time that risk was deemed to be particularly high in view of the personality of the convicted person, and that since then no treatment in any shape or form has taken place.
8.5 After the Court had commissioned two experts at its hearing of 10 May 2012, psychologist M.V. and psychiatrist G.E.M. reported on the convicted person’s personality and the risk of recidivism. Unlike the defence, the Court is of the view that both the examination carried out and the report drawn up by the psychologist are of adequate quality and expertise. ...
8.6 It appears from the ... findings of both experts that the convicted person is still suffering from a disorder, namely an antisocial personality disorder. The Court deduces from the findings that this disorder has a negative bearing on the risk of recidivism and hampers possible reintegration into society. The Court further considers that the nature of the offence committed by the convicted person – the killing of a six-year-old girl for the sole purpose of hurting her aunt, his former girlfriend – is bizarre and, as was concluded at the time, must be attributed to the psychopathically disturbed personality of the convicted person. The Court notes that important aspects of that disturbed personality, such as the antisocial personality, the limited development of his conscience and the lack of empathy, are currently still present. No treatment has taken place during the period of detention. It is furthermore not the case, as would be customary within the framework of treatment, that the circumstances which led him to his deed have been discussed with him so that he might subsequently have acquired an insight into how to avoid or defy such circumstances. In the case of the convicted person it would have been expected that in the course of such discussions his relationship with women and the question of dealing with rejection would have been addressed. As already mentioned, no such discussions or treatment have taken place. Also, at the hearing the convicted person did not demonstrate that he was capable of holding himself to account for the seriousness and absurdity of the murder or of understanding how he was able to commit it.
8.7 The foregoing leads the Court to conclude that the risk of the convicted person’s reoffending if he were released is such that the protection of society should prevail. This is not altered by the fact that the convicted person has been functioning well and without problems in prison in recent years. After all, and just as the experts have pointed out, prison life is very structured and circumstances such as those under which the convicted person committed his crime are absent there. Such circumstances may occur outside the prison and – having regard to the aforementioned personality and the fact that no treatment has taken place – the Court considers the risk of the convicted person’s reoffending if confronted with such circumstances to be too great.
8.8 The Court further takes the position of the victim’s relatives into account. It has been sufficiently established that conditional release would at the present time entail adverse psychological consequences for them. The Court observes in this connection that over the years the relatives have also not been provided with adequate support to help them come to terms with their grief or, if necessary, with treatment for their psychological problems. It is therefore easily understandable that they are very shocked now that the possibility of the convicted person’s conditional release is being considered for the first time. In this context the Court attaches relevance to the fact that after he committed his crime the convicted person threatened to harm the relatives and in this way contributed to their sense of insecurity. The convicted person has not demonstrated that he has any insight into the consequences of his deed or his subsequent actions.
8.9 On the basis of the foregoing, the Court is of the opinion that the continued execution of the life sentence still serves a reasonable purpose. The Court will accordingly not proceed to order the conditional release of the convicted person.
8.10 Having regard to the foregoing, the Court also perceives no cause to adjourn its examination pending further investigations, as requested by the defence as an alternative course of action.
8.11 The Court adds that it is aware of the fact that its considerations as set out under points 8.6 and 8.7 would appear to offer little prospect of release in the future, as this would imperatively require that in the coming period some form of treatment should take place in which, in any event, aspects such as crime analysis, relationships and rejection would need to be addressed. Perhaps such treatment can be organised in some way in the [prison in Aruba]. The Court further considers that the position of the relatives may also be different at the time of a subsequent review if they continue to receive the necessary support in dealing with their feelings of mourning, anger and fear.
8.12 The Court finally notes that it has also had regard to the commotion which the possibility of a conditional release has caused in society and which has appeared from the submitted newspaper articles and the considerable public interest. A large part of the community perhaps thinks that the perpetrator of a crime such as the murder of [the victim] should never be allowed to regain his liberty. In the Court’s examination this has not, however, played a decisive role. After all, society’s need for retribution should be considered to have been sufficiently assuaged after a period of detention of more than thirty-three years. As noted above, the aim of the continuation of that sentence is currently no longer retribution but the protection of society against possible recidivism.
does not proceed to order the convicted person’s – conditional – release.”
F. The applicant’s mental condition and the psychiatric and psychological help provided or recommended
1. Psychiatric report of 11 October 1979
33. In the course of the criminal proceedings against him and at the request of the public prosecutor, the applicant was examined by psychiatrist J.N.S. in order to assess whether he could be held criminally responsible for the offence with which he was charged. The psychiatrist produced a twenty-seven ‑ page report on 11 October 1979. The First Instance Court’s judgment of 31 October 1979 includes a summary of the conclusion and advice contained in that report (see paragraph 12 above). The conclusion and advice as set out in the psychiatrist’s report, reads, in so far as relevant, as follows.
“ Conclusion : In view of the above the Rapporteur reaches the following structure diagnosis : Serious criminal behaviour in the shape of a murder committed as a result of a primitive and primary outburst of emotions, by a retarded, infantile and narcissistic young man whose character structure has a serious disturbance of a psychopathiform nature.
Advice : The Rapporteur wishes to present his advice on the basis of the following questions:
1. Is the accused suffering from a pathological disturbance and/or an inadequate development of his mental faculties?
Reply : Yes, he certainly is, and in particular from a very inadequate development of his mental faculties.
2. Was this disturbance and/or inadequacy already present at the time of the offences with which he is charged?
Reply : The inadequate development in particular has been present all his life, and therefore also at the time of the offences with which he is charged, although it may be said that everything accelerated rapidly at that time.
3. If so, was this the case to such an extent that the accused, were he to be found guilty of the offences, should generally be considered, in the current state of Netherlands Antillean society, as not responsible for them or only to a greater or lesser extent?
Reply : The Rapporteur would conclude that the accused, having regard to the replies under 1 and 2, should be considered as having diminished criminal responsibility, but he nevertheless still considers that the accused is for the most part responsible for the acts, if they are found proven, which he has committed. The Rapporteur would especially conclude that he would not call the accused insane, either before, during or after the offence; ... the accused has never withdrawn into a bizarre and mad world of his own but has always lived in a primitive, primary sensory world and he has succeeded, whenever his existence was not under stress, to participate in society to a reasonable extent.
4. At the time of the offences, did he have the insight to realise that committing them was morally reprehensible and would not be tolerated by society?
Reply : According to the Rapporteur he must have had such insight, but he subsequently completely suppressed and replaced it by a fantasy in view of the threat of destruction of his own personality structure.
5. If he did have such insight, would he have been capable of determining his will and his actions accordingly?
Reply : See the reply to question 4. Also partly because of that, the Rapporteur has reached a conclusion of diminished criminal responsibility.
6. Can it be expected that the accused might commit the same offence again or disrupt public order in a different manner?
Reply : Having regard to what has been written and concluded above, the accused is certainly capable of committing a similar act or of causing a different disruption of public order.
7. Does his mental state require that the accused be committed to a lunatic asylum?
Reply : In view of the reply to question 3 it may be said that this is not necessary.
8. What practical guidelines can you give and/or what proposals that are feasible in present-day society can you make in order to improve or bring about a recovery and/or a better development of the accused?
Reply : In view of the replies under 1, 2, 3, 6 and 7 my advice would be that the accused should be committed to a mental asylum where, certainly, for a fairly long period institutional treatment under very strict surveillance ought to take place. On Curaçao we have the choice only between prison and the national psychiatric hospital. Taking into consideration that for the time being the risk of recidivism is very great, even if treatment were to be commenced immediately, and that intensive surveillance is consequently of primordial importance (such surveillance being impossible in the national psychiatric hospital!), as well as the fact that the accused is not to be considered insane within the meaning of the law, admission to the national psychiatric hospital is wholly contraindicated. The sole option remaining is for the accused, should he be found guilty of the offences with which he has been charged, to undergo his sentence in prison (a transfer to, for example, a mental asylum in the Netherlands is in my opinion not possible because of the accused’s limited intelligence and insufficient ability to express himself verbally). The Rapporteur strongly advises that, if possible, attempts should be made in the prison setting to attain a stronger personality structure in order to avoid recidivism in the future.”
34. On 6 September 1991 psychiatrist Dr M. de O. wrote to the Curaçao Procurator General in relation to the applicant’s wish to be transferred to Aruba. She stated that the applicant had been placed under psychiatric observation upon his arrival in the remand centre in Curaçao and that good contact of a therapeutic nature had been established with a view to his rehabilitation. The psychiatrist expressed her opinion that from a psychological point of view a transfer to Aruba would benefit the applicant’s rehabilitation.
35. This psychiatric report was drawn up by P.N. van H. at the request of the Advocate General of Curaçao in relation to the applicant’s request to be transferred to Aruba. The psychiatrist found that the applicant was not suffering from any psychosis, depression or anxiety, but that he did have a serious narcissistic personality disorder. He concluded that there was no psychiatric reason why the applicant could not be transferred to Aruba, and that, psychologically, such a transfer would probably be favourable for the applicant as his family was living there.
4. Reports drawn up for the purpose of the periodic review
36. In anticipation of the periodic review of life sentences to be introduced in the Curaçao Criminal Code, the Procurator General, in a letter of 9 September 2011, requested a psychiatric examination of the applicant.
37. On 7 October 2011 psychologist J.S.M. stated as follows.
“... the results of the test show that [the applicant] is suffering from symptoms of depression. He represses his emotions and anger and hides them from those around him. ... [The applicant] has little trust in other people. In his opinion people use and abuse each other in order to achieve their goals. That is why he is very distrustful of the people he encounters and displays antisocial behaviour. ... He is extremely sensitive to criticism and rejection.
[The applicant] has been detained for a very long time, and as a result his feeling of well-being has deteriorated. His social skills have similarly deteriorated and he has given up hope of his situation undergoing any change, which has resulted in [him] having to cope with very negative and depressive feelings about himself and others.
[The applicant] requires support as regards his bottled-up negative and depressive feelings and in order to improve his general well-being.
My advice as regards a pardon is not to give [the applicant] false hope and to be clear about the aspects of his case.
If a pardon is applicable, it is recommended that [the applicant] follow a rehabilitation and social-skills programme and that he be provided with support both inside and outside the KIA in order to promote his independence and functioning in society.”
38. On 26 March 2012 the Aruban Foundation for Probation, Social Rehabilitation and the Protection of Juveniles ( Stichting Reclassering en Jeugdbescherming ) issued a report, in which it was noted that the applicant could live with his mother on Aruba and could work in an upholstery shop. The person who drew up the report found it difficult to estimate the risk of recidivism, but considered that with appropriate support following release his prospects of successfully reintegrating into society were good.
39. At the request of the Joint Court of Justice, three reports were issued.
40. The first of these reports, which was issued by the KIA on 25 May 2012, included the following passage.
“[The applicant] is a calm, quiet man of 59 who has never been given a disciplinary punishment during his detention. ... He carries out his duties adequately and to the satisfaction of prison staff. In principle he works alone, but is occasionally willing to train other inmates in upholstery work. ... He is always polite and respectful towards prison staff; none of them have complaints about him. He rarely has any contact with the social worker and if he does, he always asks the same questions. It is as if he forgets matters which have already been discussed.”
41. The second report was drawn up on 21 July 2012 by psychiatrist M.V., who concluded as follows.
“The personality test showed that the subject has an antisocial personality disorder with mild psychopathic features. There are also signs of narcissistic features. The character structure is rigid, but is not strongly displayed, perhaps because of his age. The risk that he will reoffend or get into trouble in some other way upon return to society is considered to be present (moderate risk in comparison with the forensic population). ... In general the subject can be described as having an antisocial personality whose more unpleasant manifestations have been mitigated. ... It is reasonably certain that his personality will not change. Personality is formed up to age 35, after which only small changes take place. The examination shows that the subject’s personality profile is fairly rigid. He will therefore always be a fairly unpleasant person in his relations with others and will always have difficulty in establishing and maintaining social contacts. Given his personality, I estimate the chances of successful integration in society to be small.”
42. The third report requested by the Joint Court of Justice was compiled by psychiatrist G.E.M. on 17 August 2012, in which the following was concluded:
“The subject is, however, suffering from a severe antisocial personality disorder, characterised by a highly undifferentiated, fairly primitive emotional awareness, an underdeveloped conscience, rudimentary social skills, a lack of empathy. ... Although the subject displayed problematic and aggressive behaviour during the first few years of his detention, even including an attempt at poisoning, he has practically been a model prisoner over the last few years. ... This change in behaviour is largely attributable to the structure provided by the prison setting and the fact that he is much older now (almost 60) and is likely to become more and more moderate as the years go by. ... [A]s to the risk of recidivism: I am in two minds. Whereas the subject is almost a model prisoner, his character traits have not in essence changed. He continues to be a person with a serious disability. It remains in doubt how he will react and to what extent he can survive once the structure offered by the prison is no longer in place.”
5. Psychiatric help after the periodic review
43. Following up the decision of 21 September 2012 given by the Joint Court of Justice, the Public Prosecution Service in Curaçao concluded that more structured contact with a psychiatrist would be desirable. For this reason, the Procurator General of Curaçao asked his counterpart in Aruba to ensure that the applicant received regular visits from a psychiatrist who would counsel him on the basis of a treatment plan, in so far as this could be done within the constraints of the enforcement of his life sentence.
6. Documents drawn up after the applicant had been granted a pardon
44. A document entitled “Psychological Report” was drawn up by the Aruba prison psychologist J.S.M. (who had reported on the applicant for the purposes of the periodic review; see paragraph 37 above) on 24 July 2014, apparently at the request of the applicant’s representative. The psychologist stated that she had conducted a psychological test and an interview with the applicant, at a time (2011) when she had only been working at the prison for a few months. She had no knowledge of what had been offered to the applicant prior to that. The short time during which she had had experience of the applicant was insufficient for her to produce a support plan or to execute such a plan.
45. A second document entitled “Psychological Report” was drawn up by the same psychologist on 1 September 2014, at the request of the Government. Apart from one sentence, this report is identical to the report of 24 July 2014. The sentence in question states that, after consulting the applicant’s medical file, the psychologist declared that the applicant had not received any psychological or psychiatric treatment.
46. In an email of 29 July 2014 to the applicant’s representative, the senior social worker at the prison in Aruba stated that there was nothing in the prison’s medical file on the applicant, who had been transferred to Aruba in 1999, to suggest that he had undergone any treatment by a psychiatrist or a psychologist. The KIA had employed a psychologist in 2011 but she had not treated or supported the applicant. The applicant had visited the social-work department of the prison with some regularity in order to talk or to organise practical matters.
II. RELEVANT DOMESTIC LAW AND PRACTICE
47. The applicant was found guilty of the offence set out in Article 302 of the Criminal Code of the Netherlands Antilles ( Wetboek van Strafrecht van de Nederlandse Antillen ), which provided at the relevant time:
“Anyone who deliberately and with premeditation takes the life of another will be punished as guilty of murder with imprisonment for life or for a temporary period not exceeding twenty years.”
48. Article 17 of the National Ordinance on Prisons ( Landsverordening Beginselen Gevangeniswezen ), which came into force in 1999 and was incorporated as part of the legislation of Curaçao when it became an autonomous country on 10 October 2010 (see paragraph 9 above), provides as follows, in so far as relevant:
“While maintaining the character of the custodial sentence ..., the execution thereof shall also serve to prepare the persons concerned for their return to society.”
49. The power to grant a pardon lies with the Governor. Before 10 October 2010, this was regulated in Article 16 § 1 of the Constitution ( Staatsregeling ) of the Netherlands Antilles, which stipulated:
“The Governor may, having consulted the court which handed down the judgment, grant a pardon to any person convicted and sentenced by judgment of the courts.”
50. As of 10 October 2010, Article 93 of the Curaçao Constitution provides as follows:
“Pardons will be granted by country decree after the court which handed down the judgment has been consulted, taking into account provisions to be laid down by or pursuant to country ordinance.”
Such country decrees are issued by the Governor.
51. The pardons procedure applicable to people serving life sentences in Curaçao is practically the same as that which used to apply in the former Netherlands Antilles. Pardons are granted in accordance with the Pardons Decree 1976 ( Gratieregeling 1976 – an Order in Council for the Kingdom ( Algemene Maatregel van Rijksbestuur ), which came into force in the Netherlands Antilles on 1 October 1976 and which was incorporated as part of the legislation of Curaçao when it became an autonomous country on 10 October 2010 (see paragraph 9 above)). The procedure is the same for all convicted persons, whether serving a life sentence or a determinate sentence.
52. A petition for pardon can be filed in writing by the sentenced person or his or her counsel. It should in principle be filed with the Governor of the country of the Kingdom where the person in question was convicted. If a sentenced person is transferred to another country of the Kingdom to serve a sentence imposed in Curaçao, the rules and procedures applicable to pardons in that country apply in principle, unless otherwise agreed when the sentenced person is transferred (as in the present case: the rules and procedures applicable to pardons in Curaçao continued to apply to the applicant after his transfer to Aruba).
53. When a pardon petition is received, it is submitted to the court which handed down the judgment for advice, in the present case, the Joint Court of Justice. In its turn, the Joint Court of Justice is advised by the Procurator General of the Public Prosecution Service. The Procurator General decides what information is required, such as a probation report. This may be prompted, for example, by reports from the custodial institution indicating that the prisoner’s behaviour has changed. Where appropriate, a behavioural expert may also be consulted, but psychological or psychiatric examination is not compulsory.
54. On the basis of its own findings and the recommendations of the Public Prosecution Service, a panel of three judges issues reasoned advice to the Governor, who ultimately decides whether to grant or deny the petition. Besides the punishment aspect and the gravity of the offence, other aspects such as the age of a person serving a life sentence may play a role. The danger that the person poses to society is also an important consideration when deciding whether or not to grant a pardon. If a pardon is granted, the sentence may be remitted, reduced or commuted. The Pardons Decree 1976 does not contain a provision requiring the Governor to provide reasons for his or her decision on a pardon request. However, the Explanatory Memorandum ( Memorie van Toelichting ) to Article 93 of the Curaçao Constitution states that if a pardon is granted contrary to the advice of the court, the reasons for this decision must be explicitly set out in the country decree.
C. Periodic review of life sentences
55. As of 15 November 2011, periodic reviews of life imprisonment sentences are required on Curaçao. Article 1:30 of the Curaçao Criminal Code provides as follows.
“1. Any convicted person sentenced to life imprisonment will be released on parole after the deprivation of liberty has lasted at least twenty years if in the opinion of the [Joint] Court [of Justice] further unconditional execution no longer serves any reasonable purpose.
2. The [Joint] Court [of Justice] will in any event take into account the position of any victim or surviving close relatives and the risk of recidivism.
3. If the [Joint] Court [of Justice] decides not to release the person in question, it will review the situation again after five years and, if necessary, every five years thereafter.
7. No legal remedy lies against the decision of the Joint Court of Justice.”
56. The Explanatory Memorandum in respect of this provision provides, inter alia, as follows.
“The execution of a custodial sentence that gives no hope of returning to society can result in an inhuman situation. Reference can be made to the opinion of the Supreme Court ... of 28 February 2006, LJN ( Landelijk Jurisprudentie Nummer [National Jurisprudence Number]) AU9381. At a lecture at the University of the Netherlands Antilles on 13 April 2006 ... professor of criminal law D.H. de Jong proposed a periodic review of life imprisonment sentences. Such would also be in accordance with the approach of the European Court of Human Rights which, inter alia, in Wynne v. the United Kingdom (18 July 1994, Series A no. 294 ‑ A; a case that does not directly coincide with our life imprisonment sentence) held that a periodic review is required depending on ‘the nature and purpose of the detention in question, viewed in the light of the objectives of the sentencing court’.
In response to this, this provision [namely, Article 1:30 of the Criminal Code] imposes the obligation on the [Joint Court of Justice] to re-examine the position of the person sentenced to life imprisonment after twenty years and if necessary every five years thereafter. We are aware that this resembles the regulation of pardons but would emphatically stress that this procedure does not affect the possible granting of a pardon according to the normal procedure. The aim of the procedure [provided for in Article 1:30] is to prevent the execution of the life imprisonment sentence automatically or for improper reasons leading to a life without hope for the persons concerned. Naturally the interests of the sentenced person should be weighed against the interests of society, and in particular the position of the relatives of the victim or of the victims themselves needs to be taken into account. The second paragraph [of Article 1:30] refers to the risk of recidivism; it is obvious that the [Joint] Court [of Justice] will for this purpose let itself be informed by a behavioural expert.”
III. RELEVANT INTERNATIONAL AND EUROPEAN MATERIALS
A. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Aruba and the Netherlands Antilles in 2007
57. A delegation of the CPT visited Aruba from 4 to 7 June 2007 and the Netherlands Antilles from 7 to 13 June 2007. The relevant parts of the CPT’s report (5 February 2008, CPT/Inf (2008) 2) read as follows.
C. Aruba Correctional Institute – KIA
69. Two prisoners were serving life sentences at the time of the visit, and 26 inmates were serving long sentences of 10 to 22 years duration. Yet such prisoners, who formed over 12% of the sentenced prisoners, did not appear to benefit from a richer regime than the rather meagre one on offer to all prisoners; nor did they benefit from adequate psychological support.
The CPT recommends that the Aruban authorities develop a policy vis ‑ à ‑ vis life-sentenced and other long-term prisoners ...
f. psychiatric and psychological care
79. In principle, a psychiatrist attended KIA once a month; however, the delegation noted that he had not visited for several months. The lack of provision of psychiatric care was essentially a budgetary issue. ...
... A psychiatric and forensic observation and assistance centre (FOBA) within the prison, with a capacity to hold 10 prisoners, had recently been established. However, due to a shortage of staff, both medical and custodial, the FOBA had not been brought into service. In theory, prisoners could receive acute psychiatric treatment at the PAAZ Unit at Oduber Hospital, but resort to hospitalisation was very infrequent.
PART 3: VISIT TO THE NETHERLANDS ANTILLES
b. psychiatric and psychological care at Bon Futuro Prison [in Curaçao]
60. A psychiatrist attended Bon Futuro Prison (apart from FOBA, ...) on a half ‑ time basis. However, prisoners did not benefit from psychological care (one psychologist attended only the FOBA unit). In the CPT’s view, an establishment of the size of Bon Futuro Prison should be able to rely on the services of at least one full-time psychologist. The CPT recommends that a full-time psychologist be recruited as soon as possible for Bon Futuro Prison.
61. The forensic psychiatric support unit (or ‘ FOBA’ ) at Bon Futuro Prison was developed in order to cater for certain problematic prisoners in the absence of more appropriate hospital surroundings. ...” [Original emphasis.]
B. Relevant international instruments on life sentences
58. Starting in 1976, the Committee of Ministers has adopted a series of resolutions and recommendations on long-term and life-sentence prisoners. The first is Committee of Ministers Resolution (76) 2 on the treatment of long-term prisoners of 17 February 1976, which made a series of recommendations to member States. These included the following.
“1. pursue a criminal policy under which long-term sentences are imposed only if they are necessary for the protection of society;
2. take the necessary legislative and administrative measures in order to promote appropriate treatment during the enforcement of [long-term] sentences;
9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted;
10. grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release;
11. adapt to life sentences the same principles as apply to long-term sentences;
12. ensure that a review, as referred to in [paragraph] 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals;”
59. Recommendation Rec(2003)23 of the Committee of Ministers to member States on the management by prison administrations of life sentence and other long-term prisoners was adopted on 9 October 2003. The Recommendation’s preamble states, inter alia :
“... the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other;”
Paragraph 2 of the Recommendation goes on to state that the aims of the management of life sentence and other long-term prisoners should be:
“– to ensure that prisons are safe and secure places for these prisoners and for all those who work with or visit them;
– to counteract the damaging effects of life and long-term imprisonment;
– to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law-abiding life following their release.”
Included in the Recommendation’s general principles for the management of such prisoners are: (i) the individualisation principle (that consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence), and (ii) the progression principle (that individual planning for the management of the prisoner’s sentence should aim at securing progressive movement through the prison system) (see paragraphs 3 and 8 of the Recommendation). The report accompanying the Recommendation (prepared under the auspices of the European Committee on Crime Problems) adds that progression has as its ultimate aim a constructive transition from prison life to life in the community (paragraph 44 of the report).
Paragraph 10 (on sentence planning) provides that such plans should be used to provide a systematic approach, inter alia, to: progressive movement through the prison system from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community; and conditions and supervision measures conducive to a law ‑ abiding life and adjustment in the community after conditional release.
Paragraph 16 provides that, since neither dangerousness nor criminogenic needs are intrinsically stable characteristics, risk and needs assessments should be repeated at intervals.
Finally, paragraphs 33 and 34 (on managing reintegration into society) provide as follows.
“33. In order to enable life sentence and other long-term prisoners to overcome the particular problem of moving from lengthy incarceration to a law-abiding life in the community, their release should be prepared well in advance and take particular account of the following:
– the need for specific pre-release and post-release plans which address relevant risks and needs;
– due consideration of the possibility of achieving release and the continuation post-release of any programmes, interventions or treatment undertaken by prisoners during detention;
– the need to achieve close collaboration between the prison administration and post-release supervising authorities, social and medical services.
34. The granting and implementation of conditional release for life sentence and other long-term prisoners should be guided by the principles set out in Recommendation Rec(2003)22 on conditional release.”
In respect of paragraph 34, the report accompanying the Recommendation states (at paragraph 131) as follows.
“Recommendation Rec(2003)22 contains the principle that conditional release should be possible for all prisoners except those serving extremely short sentences. This principle is applicable, under the terms of the Recommendation, even to life prisoners. Note, however, that it is the possibility of granting conditional release to life prisoners that is recommended, not that they should always be granted conditional release.”
60. Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole) was adopted on 24 September 2003. It is summarised at length in Kafkaris v. Cyprus ([GC], no. 21906/04, § 72, ECHR 2008). In sum, it provides a series of recommendations governing preparation for conditional release, the granting of it, the conditions which may be imposed and procedural safeguards. Among its general principles are paragraphs 3 and 4 (a), which provide as follows.
“3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.
4. a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.”
The Explanatory Memorandum accompanying the Recommendation states the following in respect of paragraph 4.
“Life-sentence prisoners should not be deprived of the hope to be granted release either. Firstly, no one can reasonably argue that all lifers will always remain dangerous to society. Secondly, the detention of persons who have no hope of release poses severe management problems in terms of creating incentives to co ‑ operate and address disruptive behaviour, the delivery of personal-development programmes, the organisation of sentence-plans and security. Countries whose legislation provides for real-life sentences should therefore create possibilities for reviewing this sentence after a number of years and at regular intervals, to establish whether a life-sentence prisoner can serve the remainder of the sentence in the community and under what conditions and supervision measures.”
(d) CPT Working document on Actual/Real Life Sentences
61. A report on “Actual/real life sentences”, prepared by a member of the CPT, Mr Jørgen Worsaae Rasmussen (27 June 2007, CPT (2007) 55), reviewed various Council of Europe texts on life sentences, including Recommendations Rec(2003)22 and Rec(2003)23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, “even to life prisoners”, and (b) that all Council of Europe member States had provision for compassionate release but that this “special form of release” was distinct from conditional release.
It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The document also quoted with approval the CPT’s report on its visit to Hungary from 30 January - 1 February 2007 (28 June 2007, CPT/Inf (2007) 24) in which it stated:
“[A]s regards ‘actual lifers’, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release. ...”
The document’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of all hope of release.
62. The CPT’s report on its visit to Switzerland from 10 ‑ 20 October 2011 (25 October 2012, CPT/Inf (2012) 26) contained the following observations on the Swiss system of life imprisonment where a sex or violent offender is regarded as extremely dangerous and his or her condition is assessed as untreatable.
“The CPT has serious reservations as to the concept of confinement ‘for life’, according to which these people, once they have been declared highly dangerous and untreatable, are considered once and for all as presenting a permanent danger to society and are thus formally deprived of all hope of a more lenient enforcement of the sentence or even conditional release. Since the only way the person concerned can be released is through scientific advances, he or she is deprived of any ability to influence his eventual release, for example, by good behaviour in the course of the sentence.
In this respect, the CPT refers to Recommendation Rec(2006)2 of the Committee of Ministers of 11 January 2006 on the European Prison Rules, as well as paragraph 4 (a) of Recommendation Rec(2003)22 of the Committee of Ministers of 24 September 2003 on conditional release, which indicates clearly that the law should allow for the possibility of all convicted prisoners, including those serving a life sentence, to benefit from conditional release. The Explanatory Memorandum to [the latter] insists that life prisoners should not be deprived of all hope of release.
The CPT considers therefore that it is inhuman to imprison someone for life without any real hope of release. The Committee strongly urges the Swiss authorities to re-examine the concept of detention ‘for life’ accordingly. ” [Original emphasis.]
63. Article 77 of the Rome Statute of the International Criminal Court (ICC) allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Article 110 § 3 provides that when a person has served twenty-five years of a sentence of life imprisonment, the ICC shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time. Article 110 §§ 4 and 5 provide as follows.
“4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.”
The procedure and further criteria for review are set out in Rules 223 and 224 of the Rules of Procedure and Evidence.
“ Criteria for review concerning reduction of sentence
In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria:
(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
(b) The prospect of the resocialization and successful resettlement of the sentenced person;
(c) Whether the early release of the sentenced person would give rise to significant social instability;
(d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
(e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.”
Rule 224 § 3 provides that, for the application of Article 110 § 5 of the Statute, three judges of the Appeals Chamber shall review the question of reduction of sentence every three years, unless a shorter interval was established in the decision taken pursuant to Article 110 § 3. Rule 224 § 3 also provides that, in case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges.
64. Article 27 of the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) provides that sentences of imprisonment shall be served in a State designated by the International Tribunal. Such imprisonment shall be in accordance with the applicable law of the State concerned, subject to the supervision of the International Tribunal. Article 28 (Pardon or commutation of sentences) provides as follows.
“If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.”
Similar provisions to Articles 27 and 28 of the ICTY Statute are contained in the Statute of the International Criminal Tribunal for Rwanda (Articles 26 and 27), the Statute of the Special Court for Sierra Leone (Articles 22 and 23), and the Statute of the Special Tribunal for Lebanon (Articles 29 and 30).
65. Article 5 § 2 of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ 2002 L 190, p. 1) provides that
“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure.”
C. Relevant European instruments on (mental) health care for prisoners
66. Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe to the member States concerning the ethical and organisational aspects of health care in prison, which was adopted on 8 April 1998, in its relevant parts, reads as follows:
“I. Main characteristics of the right to health care in prison
1. ... All detainees should benefit from appropriate medical examinations on admission. Special emphasis should be put on the screening of mental disorders, ...
3. A prison’s health care service should at least be able to provide out-patient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison.
5. An access to psychiatric consultation and counselling should be secured. There should be a psychiatric team in larger penal institutions. If this is not available as in the smaller establishments, consultations should be assured by a psychiatrist, practising in hospital or in private.
III. The organisation of health care in prison with specific reference to the management of certain common problems
D. Psychiatric symptoms, mental disturbance and major personality disorders, risk of suicide
55. Prisoners suffering from serious mental disturbance should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. The decision to admit an inmate to a public hospital should be made by a psychiatrist, subject to authorisation by the competent authorities.”
67. The Appendix to Recommendation Rec(2003)23 of the Committee of Ministers to member States on the management by prison administrations of life-sentence and other long-term prisoners, adopted on 9 October 2003, provides, inter alia, as follows.
“27. Action should be taken to allow for an early and specialist diagnosis of prisoners who are, or who become, mentally disturbed and to provide them with adequate treatment. ...”
68. The Committee of Ministers stressed in its Recommendation Rec(2006)2 to member states on the European Prison Rules, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, that
“... the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society;”
69. It therefore recommended that member States, inter alia, be guided in their legislation, policies and practice by the rules contained in the Appendix to the Recommendation, the relevant parts of which read as follows.
“12.1 Persons who are suffering from mental illness and whose state of mental health is incompatible with detention in a prison should be detained in an establishment specially designed for the purpose.
12.2 If such persons are nevertheless exceptionally held in prison there shall be special regulations that take account of their status and needs.
39. Prison authorities shall safeguard the health of all prisoners in their care.
40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer.
40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose.
47.1 Specialised prisons or sections under medical control shall be available for the observation and treatment of prisoners suffering from mental disorder or abnormality who do not necessarily fall under the provisions of Rule 12.
47.2 The prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention.”
D. Relevant international instruments on the rehabilitation of prisoners
70. Criminologists have referred to the various functions traditionally assigned to punishment, including retribution, prevention, protection of the public and rehabilitation. However, in recent years there has been a trend towards placing more emphasis on rehabilitation, as demonstrated notably by the Council of Europe’s legal instruments. While rehabilitation was recognised as a means of preventing recidivism, more recently, and more positively, it constitutes rather the idea of resocialisation through the fostering of personal responsibility. This objective is reinforced by the development of the “progression principle”: in the course of serving a sentence, a prisoner should move progressively through the prison system thereby moving from the early days of a sentence, when the emphasis may be on punishment and retribution, to the latter stages, when the emphasis should be on preparation for release.
1. Relevant international human rights’ instruments
71. Article 10 § 3 of the International Covenant on Civil and Political Rights (ICCPR) provides, inter alia, that the “penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. United Nations Human Rights Committee General Comment No. 21 on Article 10 (Humane Treatment of Persons Deprived of Their Liberty) of 10 April 1992 further states that “no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner”.
72. The United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) contains specific provisions on sentenced prisoners, including the following guiding principles.
“57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.”
2. European Prison Rules 1987 and 2006
73. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by those rules and to ensure wide dissemination of them to their judicial authorities as well as to prison staff and inmates.
The 1987 version of the European Prison Rules (“the 1987 Rules”) notes, as its third basic principle, that
“[t]he purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release.”
The latest version adopted in 2006 (“the 2006 Rules”) replaces this above-cited principle with the following three principles.
“Rule 2: Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.
Rule 5: Life in prison shall approximate as closely as possible the positive aspects of life in the community.
Rule 6: All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”
The Commentary on the 2006 Rules (prepared by the European Committee on Crime Problems) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights: in fact restrictions should be as few as possible. Rule 5, the Commentary observes, underlines the positive aspects of normalisation recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The Commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”.
74. The first section of Part VIII of the 2006 Rules is entitled “Objective of the regime for sentenced prisoners” and provides, inter alia, as follows.
“102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”
In these respects, the Commentary explains that Rule 102
“... states the objectives of the regime for prisoners in simple, positive terms. The emphasis is on measures and programmes for sentenced prisoners that will encourage and develop individual responsibility rather than focussing narrowly on the prevention of recidivism.
The new rule is in line with the requirements of key international instruments including Article 10.3 of the [ICCPR] ... However, unlike the ICCPR, the formulation here deliberately avoids the use of the term ‘rehabilitation’, which carries with it the connotation of forced treatment. Instead, it highlights the importance of providing sentenced prisoners, who often come from socially deprived backgrounds, the opportunity to develop in a way that will enable them to choose to lead law-abiding lives.
In this regard Rule 102 follows the same approach as Rule 58 of the United Nations Standard Minimum Rules for the Treatment of Prisoners. ...”
75. Rule 105.1 of the 2006 Rules provides that a systematic programme of work shall seek to contribute to meeting the objective of the prison regime. Rule 106.1 provides that a systematic programme of education, with the objective of improving prisoners’ overall level of education, as well as the prospects of leading a responsible and crime-free life, shall be a key part of regimes for sentenced prisoners. Finally, Rule 107.1 requires that the release of sentenced prisoners should be accompanied by special programmes enabling them to make the transition to a law-abiding life in the community.
76. The reason for the evolution towards the 2006 Rules can be understood through Recommendations Rec(2003)22 and Rec(2003)23 of the Committee of Ministers mentioned above (see paragraphs 59 and 60), both of which address the rehabilitative dimension of prison sentences. In addition to the relevant provisions of these Recommendations, it is to be noted that the fifth paragraph of the preamble to Recommendation Rec(2003)22 on conditional release states that “research has shown that detention often has adverse effects and fails to rehabilitate offenders”. In paragraph 8, the Recommendation outlines the following measures to reduce recidivism, by the imposition of individualised conditions such as:
“– the payment of compensation or the making of reparation to victims;
– entering into treatment for drug or alcohol misuse or any other treatable condition manifestly associated with the commission of crime;
– working or following some other approved occupational activity, for instance, education or vocational training;
– participation in personal development programmes;
– a prohibition on residing in, or visiting, certain places.”
A. The Government’s preliminary objections
77. At the hearing, the Government expressed doubts as to whether the applicant’s son, Mr Johnny Francis van Heyningen, and his sister, Ms Altagracia Murray, had locus standi to pursue the application. If the Court required the existence of additional personal interests other than a close blood relationship, as its case-law suggested, the Government submitted that it appeared that the applicant had not shown much interest in any of his three children and that the file in possession of the Government did not show that Mr van Heyningen had ever visited the applicant during his detention. While this was different for the applicant’s sister Altagracia, who had kept in contact with her brother during the second part of his detention in Aruba, the Government questioned whether, in a situation where an applicant’s closest blood relatives, namely his children, had never had any contact with their father or showed any interest in pursuing the application, it fell to another relative to come forward.
78. The applicant’s son and sister argued that they had a legitimate interest in pursuing the application so as to obtain a ruling from the Court on, in particular, the question whether the authorities had been under an obligation to create a de facto prospect of release for the applicant. In their view, the Government had failed to provide the applicant with adequate treatment in order to help him regain his liberty, reunite with his family and restore family ties. Despite the costs involved, Mr van Heyningen, who had been living in the European part of the Kingdom since 1999, had managed to visit his father in prison six times and had also maintained contact with him by telephone. Ms Murray, who was living in Aruba, had visited her brother in prison there nearly every week.
79. The Court normally permits the next of kin to pursue an application, provided he or she has a legitimate interest, where the original applicant has died after lodging the application with the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII, and Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014). Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant’s son and sister have a legitimate interest in pursuing the application and that they thus have the requisite locus standi under Article 34 of the Convention (see, for example, Carrella v. Italy, no. 33955/07, §§ 48-51, 9 September 2014).
80. Therefore, and to the extent that the Government’s remarks are to be understood as a preliminary objection concerning the locus standi of the applicant’s son and sister, the Court accordingly dismisses that objection.
81. The Government posited that as regards the applicant’s complaint that he had no prospect of release and that the pardon option was inadequate and ineffective, the applicant could no longer be considered a “victim” of a violation of Article 3 of the Convention, within the meaning of Article 34, since he had been released from prison after a request for pardon had been granted on 31 March 2014.
82. The applicant did not address this issue.
83. It is the settled case-law of the Court that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice; prejudice is relevant only in the context of Article 41. Consequently, a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012, with further references).
84. The Court observes, in relation to the applicant’s complaint concerning the pardon system not providing him with a prospect of release, that during the thirty-three years that he spent in prison following the imposition of the life sentence he unsuccessfully applied for a pardon on many occasions. While it is true that he was ultimately granted a pardon on 31 March 2014 for reasons relating to his deteriorating health (see paragraph 30 above), that decision did not comprise an acknowledgment of the alleged violation of Article 3 of the Convention. As there is, moreover, no indication of the pardon having been granted as a means of offering redress, the applicant may claim to have been the victim of the violations of the Convention alleged by him.
Consequently, the Court dismisses the Government’s objection as to the applicant’s lack of victim status.
B. Scope of the case before the Grand Chamber
85. In the specific circumstances of the present case, the Court considers that there is reason to address the issue of the exact scope of the case before it in some detail.
86. Firstly, the applicant’s request for referral and his written observations included submissions in relation to his complaints under Article 5 of the Convention, which had been declared inadmissible by the Chamber (see paragraph 4 above). However, according to the Court’s settled case-law, the content and scope of the “case” referred to the Grand Chamber is delimited by the Chamber’s decision on admissibility (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001 ‑ VII; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 ‑ III; and Kovačić and Others v. Slovenia [GC], nos. 44574/98 and 2 others, § 194, 3 October 2008). This means that the Grand Chamber cannot examine those parts of the application which have been declared inadmissible by the Chamber. The Court sees no reason to depart from this principle in the present case (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 59-62, ECHR 2007 ‑ I).
87. The applicant further submitted in his request for referral that because he had never received psychiatric treatment he could not foster any hope of one day being released. At the same time he “accepted” the Chamber’s finding that, in view of the introduction of the periodic-review mechanism in domestic law, there had been no violation of Article 3 of the Convention as regards his complaint that there was no possibility of a review of his life sentence.
88. In this connection the Court reiterates that the “case” referred to the Grand Chamber embraces all aspects of the application previously examined by the Chamber in its judgment (see K. and T. v. Finland, cited above, § 140). Moreover, it cannot be said that the applicant’s remarks concerning the conclusion reached by the Chamber constitute an unequivocal withdrawal of the complaint in issue, given that in his written observations the applicant submitted argument on the question whether his life sentence was de facto reducible and whether the periodic review met the requirements set out in the Court’s case-law. It thus appears that the applicant has not renounced this part of his complaint. Accordingly, it is open to the Grand Chamber to examine the complaint under Article 3 that there was no possibility of a review of the applicant’s life sentence.
89. Finally, the applicant indicated in his written observations that he no longer wished “to insist” on his complaint under Article 3 relating to the physical conditions of his detention in so far as this concerned the allegedly inadequate conditions in prison buildings. Given that he stated in the following paragraph of those observations that he wanted to maintain his other complaints, the Court concludes that by “not insisting”, the applicant meant that he did not wish to pursue this aspect of his Article 3 complaint within the meaning of Article 37 § 1 (a) of the Convention. Finding, in accordance with Article 37 § 1 in fine, that there are no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require it to do so, the Grand Chamber will not therefore examine this complaint.
90. The Grand Chamber will accordingly examine the applicant’s complaints under Article 3 that his life sentence was irreducible and that the conditions of his detention violated that provision, in particular in that he was never placed under a regime befitting his mental condition or provided with psychiatric treatment.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
91. The applicant initially complained that his life sentence was de jure and de facto irreducible and that there was no separate regime for life prisoners or a special regime for detainees with psychiatric problems in the prisons where he had been held. In his letter of 2 November 2012 (see paragraph 3 above), following the conclusion of the periodic review of his life sentence, he further complained that even if a de jure possibility of conditional release had been created, de facto he had no hope of release as he had never been provided with any psychiatric treatment, and for that reason the risk of recidivism was deemed to be too high for him to be eligible for such release. He relied on Article 3 of the Convention, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
92. In its judgment of 10 December 2013, the Chamber examined separately the applicant’s complaints under Article 3 of the Convention of the alleged irreducibility of his life sentence and the conditions of his detention. As regards the former complaint it found that there had been no violation of Article 3. It noted the introduction in November 2011 – some twenty months after the application had been lodged – in national (that is, Curaçao) law of a periodic-review mechanism for such sentences and considered that this mechanism met the criteria set out in the Court’s judgment in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, §§ 119-22, ECHR 2013). It further observed that a review of the applicant’s life sentence had indeed been carried out, in the course of which a number of expert reports had been drawn up. Taking into account the fact that the applicant had only lodged his application with the Court almost thirty years after his conviction, the Chamber saw no reason to examine whether or not the life sentence imposed on him had de facto and de jure been reducible prior to the introduction of the periodic review in 2011.
93. The Chamber further found that the conditions of the applicant’s detention had not been incompatible with Article 3. As regards, in particular, the complaint that he had never been treated for his mental disorder, the Chamber noted that the applicant had been placed under psychiatric observation and had been offered help for his personality disorder in the prison in Curaçao, but that help had ended when he had been transferred, at his own request, to Aruba, where psychiatric treatment was not available to the same extent, even though psychiatric help had become available by the time of the Chamber’s judgment. The Chamber observed, moreover, that the applicant had not submitted any information about whether or not he had availed himself of the assistance available, nor had he argued that such assistance had been inadequate for his needs.
B. The parties’ submissions before the Grand Chamber
94. The applicant argued that it was clear from the judgment of the Joint Court of Justice of 11 March 1980 that that court had chosen to impose a life sentence rather than a determinate prison sentence on him in view of his mental condition and dangerousness to society and of the absence, at that time, of a suitable institution where he could undergo the treatment recommended by the psychiatrist who had examined him and whose findings had been accepted by that court. He had subsequently spent more than thirty years in prison without ever receiving treatment – any psychiatric help he may have been offered was no more than the basic kind of assistance available in all prisons and could not be equated to treatment. Neither had the possibility of a transfer to the Netherlands, in order to receive treatment there, ever been envisaged. According to the applicant, it was unrealistic to expect him to have been able to recognise that he was in need of treatment and to raise this issue, as the Chamber had considered in its judgment; the necessity of treatment had, in any event, already been established and the authorities were aware of it.
95. The applicant maintained that the possibility of seeking a pardon did not qualify as a review as, inter alia, the procedure was not regulated by law and the Governor was under no obligation to provide reasons for a decision refusing a pardon. None of the pardon requests lodged by him had led to a psychological or psychiatric examination with a view to determining whether he continued to constitute a danger to society; nor had the prison authorities been asked to issue a report about him pursuant to any of his petitions for pardon. The introduction of the periodic-review procedure, while offering a theoretical possibility of release, was ineffective in the circumstances of the applicant’s case, since as long as he had not been provided with treatment, it could not lead to any conclusion other than that he was still too dangerous to be considered for a reprieve. In the applicant’s view it was clear that without treatment he could never foster any hope of one day being released.
96. The Government maintained that the life sentence imposed on the applicant had been de jure and de facto reducible from the moment of its imposition, since he had had the option of seeking a pardon, which might be granted if it was demonstrated that the enforcement or continuation of a sentence did not reasonably serve any of the aims pursued through the application of the criminal law. Moreover, seven of the nine persons on whom a life sentence had been imposed in the Netherlands Antilles since 1980 had sought a pardon and in two instances, including the applicant’s case, a pardon request had been granted. According to the Government, this showed that, even if pardons were granted only rarely, there was nevertheless a genuine de facto possibility that a life sentence could be reduced by means of a pardon. In addition, the obligatory periodic review of life sentences – which, the Government conceded, had only come into force after the application was lodged with the Court – provided for the release on parole of a life prisoner if the Joint Court of Justice was of the opinion that a continuation of the custodial sentence would no longer serve any reasonable purpose.
97. The Government were further of the view that the conditions of the applicant’s detention in no way justified a conclusion that he had been subjected to inhuman or degrading treatment or punishment in breach of Article 3. As regards the applicant’s complaints that he had never been placed under a regime befitting his mental condition and that his life sentence was de facto irreducible because he had not been offered adequate treatment for his personality disorder or transferred to a custodial institution in the Netherlands, the Government submitted that in 1980, when the applicant was sentenced, it had not been possible to impose a TBS order for confinement in a custodial clinic in the Netherlands Antilles. There had been no custodial clinic in either Curaçao or Aruba and the applicant’s transfer to such an institution in the Netherlands had been considered impossible in view of his limited intelligence and insufficient ability to express himself verbally. Mental-health treatment thus specifically not being part of the Joint Court of Justice’s judgment, no blame could be attached to the national authorities for not executing a measure that had not been imposed. It did not appear from either the applicant’s contacts with the prisons’ social workers or the numerous letters he had addressed to various authorities that a lack of mental-health assistance had been his main concern. In any event, the applicant had been offered psychiatric help for his personality disorder during the time he was incarcerated in Curaçao. In this connection the Government referred to the letter of Dr M. de O., according to which the applicant had, upon his arrival in the prison in Curaçao, been placed under psychiatric observation and good contact of a therapeutic nature had been established with a view to his rehabilitation (see paragraph 34 above). This therapeutic contact had ended when the applicant had been moved to Aruba, a transfer he had specifically requested despite being aware that the prison complex there did not comprise a Forensic Observation and Counselling Unit and that the availability of psychiatric help would be limited. The Government had not been informed of any contact between the applicant and psychiatrists or psychologists in Aruba until 2011, when the first periodic review of his life sentence had been carried out. Psychiatric help had been available to him in Aruba since the adoption of the judgment of the Joint Court of Justice of 21 September 2012.
98. While the Government acknowledged that long-term imprisonment could have a number of desocialising effects on inmates, they submitted that in practice the applicant had been able to engage in a relevant daily programme in the prison in Aruba. He had been a talented upholsterer and had worked eight hours a day in the prison’s upholstery department. He had also occasionally attended Bible studies.
99. It is well established in the Court’s case-law that the imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Kafkaris, cited above, § 97, and references cited therein), provided that it is not grossly disproportionate (see Vinter and Others, cited above, § 102). The Court has, however, held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see Kafkaris, cited above, § 97). A life sentence does not become irreducible by the mere fact that in practice it may be served in full. No issue arises under Article 3 if a life sentence is de jure and de facto reducible (see Kafkaris, cited above, § 98, and Vinter and Others, cited above, § 108). On the basis of a detailed review of the relevant considerations emerging from its case-law and from recent comparative and international-law trends in respect of life sentences, the Court found in Vinter and Others that a life sentence can remain compatible with Article 3 of the Convention only if there is both a prospect of release and a possibility of review, both of which must exist from the imposition of the sentence (see Vinter and Others, cited above, §§ 104 ‑ 18 and 122). It further observed in that case that the comparative and international-law materials before it showed clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter (ibid., § 120, see also Bodein v. France, no. 40014/10, § 61, 13 November 2014). It is for the States to decide – and not for the Court to prescribe – what form (executive or judicial) that review should take (see Kafkaris, cited above, § 99, and Vinter and Others, cited above, §§ 104 and 120). The Court has held that presidential clemency may thus be compatible with the requirements flowing from its case-law (see Kafkaris, cited above, § 102).
100. The Court has further found that a prisoner cannot be detained unless there are legitimate penological grounds for incarceration, which include punishment, deterrence, public protection and rehabilitation. While many of these grounds will be present at the time a life sentence is imposed, the balance between these justifications for detention is not necessarily static and might shift in the course of the execution of the sentence. It is only by carrying out a review of the justification for continued detention at an appropriate point in the sentence, that these factors or shifts can be properly evaluated (see Vinter and Others, cited above, § 111). The review required in order for a life sentence to be reducible should therefore allow the domestic authorities to consider whether, in the course of the sentence, any changes in the life prisoner and progress towards his or her rehabilitation are of such significance that continued detention is no longer justified on legitimate penological grounds (ibid. , § 119). This assessment must be based on rules having a sufficient degree of clarity and certainty (ibid., §§ 125 and 129; see also László Magyar v. Hungary, no. 73593/10, § 57, 20 May 2014, and Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, §§ 255, 257 and 262, ECHR 2014) and the conditions laid down in domestic legislation must reflect the conditions set out in the Court’s case-law (see Vinter and Others, cited above, § 128). Thus, a possibility of being granted a pardon or release on compassionate grounds for reasons related to ill-health, physical incapacity or old age does not correspond to the notion of “prospect of release” as formulated in Kafkaris (see Vinter and Others, cited above, § 127, and Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, § 203, 18 March 2014). The Court held in a recent case that the assessment must be based on objective, pre ‑ established criteria (see Trabelsi v. Belgium, no. 140/10, § 137, ECHR 2014). The prisoner’s right to a review entails an actual assessment of the relevant information (see László Magyar, cited above, § 57), and the review must also be surrounded by sufficient procedural guarantees (see Kafkaris, cited above, § 105, and Harakchiev and Tolumov, cited above, § 262). To the extent necessary for the prisoner to know what he or she must do to be considered for release and under what conditions, it may be required that reasons be provided, and this should be safeguarded by access to judicial review (see László Magyar, cited above, § 57, and Harakchiev and Tolumov, cited above, §§ 258 and 262). Finally, in assessing whether the life sentence is reducible de facto it may be of relevance to take account of statistical information on prior use of the review mechanism in question, including the number of persons having been granted a pardon (see Kafkaris, cited above, § 103; Harakchiev and Tolumov, cited above, §§ 252 and 262; and Bodein, cited above, § 59).
(b) Rehabilitation and the prospect of release for life prisoners
101. As set out in the preceding paragraph, the review required in order for a life sentence to be reducible should permit the authorities to assess any changes in the life prisoner and any progress towards rehabilitation made by him or her. In Vinter and Others (cited above) the Grand Chamber thus addressed the problem of how to determine whether, in a given case, a life sentence could be regarded as reducible specifically in the light of the rehabilitation function of incarceration. In this context, it held that it would be incompatible with human dignity – which lay at the very essence of the Convention system – forcefully to deprive a person of his freedom without striving towards his rehabilitation and providing him with the chance to regain that freedom at some future date (ibid., § 113). It went on to note that there was now clear support in European and international law for the principle that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation was achieved (ibid., § 114). While punishment remained one of the aims of imprisonment, the emphasis in European penal policy was now on the rehabilitative aim of imprisonment, even in the case of life prisoners; this was expressed in Rules 6, 102.1 and 103.8 of the 2006 European Prison Rules, Resolution (76) 2 and Recommendations Rec(2003)23 and Rec(2003)22 of the Committee of Ministers, statements by the CP|T, and the practice of a number of Contracting States. The same commitment to rehabilitation was to be found in international law, as expressed, inter alia, in Article 10 § 3 of the ICCPR and the General Comment on that Article (ibid., §§ 115-18).
102. The Court observes that the principle of rehabilitation, that is, the reintegration into society of a convicted person, is reflected in international norms (see paragraphs 70-76 above) and has not only been recognised but has over time also gained increasing importance in the Court’s case-law under various provisions of the Convention (see, apart from Vinter and Others, cited above, for instance Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002 ‑ VIII; Dickson v. the United Kingdom [GC], no. 44362/04, § 28, ECHR 2007 ‑ V; James, Wells and Lee v. the United Kingdom, nos. 25119/09 and 2 others, § 209, 18 September 2012; and Khoroshenko v. Russia [GC], no. 41418/04, §§ 121 and 144 ‑ 45, ECHR 2015). In a slightly different context the Court has, moreover, held that, in circumstances where a Government seek to rely solely on the risk posed by offenders to the public in order to justify their continued detention, regard must be had to the need to encourage the rehabilitation of those offenders (see James, Wells and Lee, cited above, § 218). One of the aims of rehabilitation is to prevent reoffending and thus to ensure the protection of society.
103. Notwithstanding the fact that the Convention does not guarantee, as such, a right to rehabilitation, the Court’s case-law thus presupposes that convicted persons, including life prisoners, should be allowed to rehabilitate themselves. Indeed, the Court has held that “ ... a whole life prisoner is entitled to know ... what he must do to be considered for release and under what conditions” (see Vinter and Others, cited above, § 122). It has also held, with reference to Vinter and Others, that national authorities must give life prisoners a real opportunity to rehabilitate themselves (see Harakchiev and Tolumov, cited above, § 264). It follows from this that a life prisoner must be realistically enabled, to the extent possible within the constraints of the prison context, to make such progress towards rehabilitation that it offers him or her the hope of one day being eligible for parole or conditional release. This could be achieved, for example, by setting up and periodically reviewing an individualised programme that will encourage the sentenced prisoner to develop himself or herself to be able to lead a responsible and crime-free life.
104. Life prisoners are thus to be provided with an opportunity to rehabilitate themselves. As to the extent of any obligations incumbent on States in this regard, the Court considers that even though States are not responsible for achieving the rehabilitation of life prisoners (ibid.), they nevertheless have a duty to make it possible for such prisoners to rehabilitate themselves. Were it otherwise, a life prisoner could in effect be denied the possibility of rehabilitation, with the consequence that the review required for a life sentence to be reducible, in which a life prisoner’s progress towards rehabilitation is to be assessed, might never be genuinely capable of leading to the commutation, remission or termination of the life sentence or to the conditional release of the prisoner. In this connection the Court reiterates the principle – well established in its case-law – that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective (see, among many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 123, ECHR 2010). The obligation to offer a possibility of rehabilitation is to be seen as an obligation of means, not one of result. However, it entails a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation. In this context the Court has previously held that such an obligation exists in situations where it is the prison regime or the conditions of detention which obstruct rehabilitation (see Harakchiev and Tolumov, cited above, § 266).
(c) Health care provided to prisoners with mental-health problems
105. As regards the treatment of prisoners with mental-health problems, the Court has consistently held that Article 3 of the Convention requires States to ensure that the health and well-being of prisoners are adequately secured by, among other things, providing them with the requisite medical assistance (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI; Sławomir Musiał v. Poland, no. 28300/06, § 87, 20 January 2009; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 128, ECHR 2009). A lack of appropriate medical care for persons in custody is therefore capable of engaging a State’s responsibility under Article 3 (see Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004). Obligations under Article 3 may go so far as to impose an obligation on the State to transfer prisoners (including mentally ill ones) to special facilities in order to receive adequate treatment (see Raffray Taddei v. France, no. 36435/07, § 63, 21 December 2010).
106. In the case of mentally ill prisoners, the Court has held that the assessment of whether particular conditions of detention are incompatible with the standards of Article 3 has to take into consideration the vulnerability of those persons and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment (see, for example, Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244, and Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998-V). In addition, it is not enough for such detainees to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed and suitable medical supervision should also be provided (see Raffray Taddei, cited above, § 59).
(d) Life prisoners with mental disabilities and/or mental-health problems
107. Life prisoners who have been held to be criminally responsible for the offences of which they have been found guilty – and who are therefore not considered “persons of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention – may nevertheless have certain mental-health problems; they may for instance have behavioural or social problems or suffer from various kinds of personality disorders, all of which may impact on the risk of their reoffending. The Court has not previously dealt with the specific issue of the reducibility of life sentences imposed on persons who have been diagnosed as suffering from a mental disability and/or a mental-health condition. Against the background of the case-law set out above (paragraphs 99-106), the Court finds the following approach to be appropriate in this regard.
108. For a State to comply with its obligations under Article 3 of the Convention in respect of life prisoners belonging to this category, the Court considers that it is firstly required that an assessment be made of those prisoners’ needs as regards treatment with a view to facilitating their rehabilitation and reducing the risk of their reoffending. This assessment should also address the likely chances of success of any identified forms of treatment, given that Article 3 cannot entail an obligation for a State to enable a life prisoner to receive treatment that is not realistically expected to have any significant impact in helping the life prisoner to rehabilitate himself or herself. For this reason, account is to be taken of the life prisoner’s individual situation and personality. The Court, moreover, recognises that certain mental-health conditions are not, or not easily, amenable to treatment. Given that, owing to their mental-health situation, such life prisoners may not themselves be sufficiently aware of a need for treatment, the aforementioned assessment should be conducted regardless of whether any request for treatment has been expressed by them (see paragraph 106 above). Where the assessment leads to the conclusion that a particular treatment or therapy may indeed help the life prisoner to rehabilitate himself or herself, he or she is to be enabled to receive that treatment to the extent possible within the constraints of the prison context (see the relevant Council of Europe instruments set out in paragraphs 66-69 above; see also paragraph 103 above). This is of particular importance where treatment in effect constitutes a precondition for the life prisoner’s possible future eligibility for release and is thus a crucial aspect of de facto reducibility of the life sentence.
109. Providing life prisoners with a real opportunity of rehabilitation may therefore require that, depending on their individual situation, they be enabled to undergo treatments or therapies – be they medical, psychological or psychiatric – adapted to their situation with a view to facilitating their rehabilitation. This entails that they should also be allowed to take part in occupational or other activities where these may be considered to benefit rehabilitation.
110. In general it will be for the State to decide, and not for the Court to prescribe, which facilities, measures or treatments are required in order to enable a life prisoner to rehabilitate himself or herself in such a way as to become eligible for release. In choosing the means for that purpose, States accordingly have a wide margin of appreciation and this obligation under Article 3 is to be interpreted in such a way as not to impose an excessive burden on national authorities.
111. Consequently, a State will have complied with its obligations under Article 3 when it has provided for conditions of detention and facilities, measures or treatments capable of enabling a life prisoner to rehabilitate himself or herself, even when that prisoner has not succeeded in making sufficient progress to allow the conclusion that the danger he or she poses to society has been alleviated to such an extent that he or she has become eligible for release. In this connection the Court reiterates that States also have a duty under the Convention to take measures to protect the public from violent crime and that the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public (see Vinter and Others, cited above, § 108, with further references). States may fulfil that positive obligation to protect the public by continuing to detain life prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others v. Italy, no. 28634/06, §§ 115 ‑ 22, 15 December 2009).
112. In conclusion, life prisoners should thus be detained under such conditions, and be provided with such treatment, that they are given a realistic opportunity to rehabilitate themselves in order to have a hope of release. A failure to provide a life prisoner with such opportunity may accordingly render the life sentence de facto irreducible.
2. Application of the above relevant principles to the present case
113. The Court will now turn to the question whether the life sentence imposed on the applicant was reducible. It reiterates that in order for a life sentence to be reducible, and thus compatible with Article 3 of the Convention, there must be both a prospect of release and a possibility of review (see Vinter and Others, cited above, §§ 109-10).
114. As set out above (see paragraph 92), the Chamber examined the question whether the applicant’s life sentence was compatible with Article 3 separately from the applicant’s other complaints under that provision concerning the conditions of his detention. However, the Grand Chamber finds on the basis of the Court’s case-law and the relevant principles set out in paragraphs 107 to 112 above, that the different aspects of these complaints under Article 3 are closely interrelated in the present case. Indeed, these aspects were also presented together by the applicant already in his letter of 2 November 2012 (see paragraph 91 above) and he based his main submissions to the Grand Chamber on the contention that he had no prospect of release as he was not provided with any treatment for his mental disorder which might have reduced the risk of recidivism that he was considered to pose. This being so, the Court finds it appropriate to assess the different aspects of the Article 3 complaints jointly.
115. Accordingly, in its examination of the question whether the life sentence imposed on the applicant was reducible, the Court will consider whether the alleged lack of psychiatric or psychological treatment in effect deprived the applicant of any prospect of release.
116. In its assessment the Court will focus on the applicant’s situation from the time he lodged his application in 2010. It cannot, however, lose sight of the fact that at that time he had already been imprisoned for about thirty years. In this context the Court observes that the rejections of the applicant’s various requests for pardon were based, inter alia, on the assessment that the risk of recidivism he was considered to pose continued to exist. In the later years of his incarceration this in fact became the sole reason for the refusal to grant him release of any kind. While the risk of reoffending and the need to protect society are relevant penological grounds capable of justifying continued detention of a life prisoner (see paragraph 100 above), the Court will nevertheless have to assess whether the applicant in the specific circumstances of the present case was offered possibilities of rehabilitating himself also during the period of his imprisonment preceding the lodging by him of the present application, as the existence of such possibilities, in particular of any that addressed his mental-health problems, may have affected his prospects of release.
117. The Court observes in this connection that in the context of the criminal proceedings against him on charges of murder, the applicant was examined in 1979 by a psychiatrist, who diagnosed him as a retarded, infantile and narcissistic young man whose character structure had a serious disturbance of a psychopathiform nature and recommended that he receive institutional treatment for a lengthy period or that attempts be made in the prison setting to attain a stronger personality structure in order to avoid recidivism (see paragraph 33 above). Owing to the fact that no order for placement in a custodial clinic could be imposed in the Netherlands Antilles at that time – as the applicable law did not provide for such a measure – and considering that placement in such a clinic in the European part of the Kingdom was not feasible, the Joint Court of Justice imposed a sentence of life imprisonment on the applicant on 11 March 1980 (see paragraphs 15 ‑ 16 above). However, the Court considers that the applicant’s detention in a prison rather than in a custodial clinic could not have obviated the need for the recommended treatment. Nor can the Court accept that by dint of the mere fact that the punishment imposed on the applicant did not comprise a measure stipulating that he undergo treatment, the Government were under no further obligation in this regard for the duration of the applicant’s incarceration. It reiterates that States are under an obligation to provide detainees suffering from health problems – including mental-health problems – with appropriate medical care (see paragraph 105 above), inter alia, with a view to allowing them, if possible, to rehabilitate themselves, regardless of whether a detainee has made a request to that effect (see paragraphs 106 and 108 above).
118. The applicant’s contention that he was never provided with any treatment for his mental condition during the time he was imprisoned finds some support in CPT reports on visits by that body to the prisons in Curaçao and Aruba where the applicant was, or had been, detained, and according to which mental-health care in those two institutions was insufficient (see paragraph 57 above). It is furthermore clearly supported by the case file, notably, the email from the senior social worker at the prison in Aruba of 29 July 2014 (see paragraph 46 above) and a report of 1 September 2014 drawn up by the psychologist at the same prison, both of which state that there is no mention in the applicant’s medical file of his having undergone any psychiatric or psychological treatment (see paragraph 45 above).
119. Indeed, the Government did not dispute that the applicant had not received treatment as such but they stressed that he had been provided with some form of psychiatric help when he was detained in Curaçao, which he chose to forego when he requested and obtained a transfer to Aruba where, certainly during the first years of his incarceration there, very limited possibilities of such help existed. However, even if it is accepted that some basic mental-health care was available to the applicant, it remains to be examined whether this was sufficient to comply with the Government’s obligation to provide the applicant with the possibility of rehabilitating himself.
120. In this context the Court would firstly observe that the principle of the rehabilitation of prisoners has, at least from 1999 onwards, been explicitly recognised in the applicable national law, in which it is stipulated that a custodial sentence should also serve to prepare detainees for their return to society (see paragraph 48 above). The Court further notes that certain measures were taken and facilities offered which, even if their main purpose was not the applicant’s rehabilitation, may be considered conducive to that purpose. Thus, the applicant was transferred from Curaçao to Aruba in 1999. The applicant had requested this transfer in order to be closer to members of his family, and it was considered to be beneficial for his rehabilitation and psychologically favourable for him (see paragraphs 34 ‑ 35 above). The applicant was able to work and benefited from the structured life in prison (see paragraph 42 above). He was reported to have changed over the years: while he may be described as having been a troublesome inmate in the early years of his incarceration in Curaçao, he significantly improved his behaviour during his detention in Aruba (see paragraphs 19, 40 and 42 above).
121. Nevertheless, throughout his imprisonment the risk of the applicant’s reoffending was deemed too great for him to be considered eligible for a pardon or, after the periodic review of his life sentence, for conditional release. In this connection the Court notes that one of the judges of the Joint Court of Justice wrote in 1997, when consulted on a request for a pardon lodged by the applicant, that he considered it would be irresponsible to grant a pardon to the applicant, whose risk of reoffending had been established to be high and who had not received the treatment in prison that had been recommended (see paragraph 24 above). The Joint Court of Justice also noted in its advice to the Governor of Curaçao, relating to that same request for a pardon, that the applicant had not undergone any (psychiatric) treatment aimed at strengthening his personality structure in order to prevent recidivism (ibid.). Finally, and most markedly, the Joint Court of Justice observed in its decision of 21 September 2012 pursuant to the periodic review of the applicant’s life sentence that important aspects of the applicant’s disturbed personality, on the basis of which it had originally been concluded that the risk of recidivism was high, were still present and that no treatment had taken place during the years of detention. Although the Joint Court of Justice found that after thirty-three years the applicant’s imprisonment no longer served the aim of retribution, it concluded that his continued detention was necessary in order to protect the public as the risk of his reoffending remained too great to allow his release (see paragraphs 8.4, 8.6., 8.7 and 8.12 of the Joint Court of Justice’s decision set out in paragraph 32 above).
122. It transpires clearly from the decisions of the Joint Court of Justice mentioned in the preceding paragraph that there was a close link in the present case between the persistence of the risk of the applicant’s reoffending, on the one hand, and the lack of treatment, on the other. Moreover, the Court observes that the authorities were aware that treatment had been recommended in order to prevent recidivism and that they were also aware that the applicant had not received any.
123. The applicant therefore found himself in a situation where he was not deemed eligible for parole or release owing to the risk of reoffending, whereas the persistence of that risk was linked to the fact that no assessment of treatment needs and possibilities had been conducted and no identified forms of treatment with a view to rehabilitation had been provided. Consequently, treatment constituted, in practice, a precondition for the applicant to have the possibility of progressing towards rehabilitation, reducing the risk of his reoffending. An issue of the de facto reducibility of his life sentence was, accordingly, at stake.
124. As already stated above (see paragraph 110), States have a wide margin of appreciation in the determination of what facilities or measures are required in order to give a life prisoner the possibility of rehabilitating himself or herself to such an extent that he or she may one day become eligible for release. It is accordingly not for the Court to prescribe what treatment was required in the specific circumstances. However, although the applicant in the present case was indeed initially, prior to being sentenced to life imprisonment, assessed as requiring treatment, it does not appear that any further assessments were carried out – either when he started serving his sentence or thereafter – of the kind of treatment that might be required and could be made available or of the applicant’s aptitude and willingness to receive such treatment. In the Court’s view, very little, if any, relevance falls to be attached to the fact that the applicant himself had not apparently been concerned about procuring treatment and had preferred to be transferred from Curaçao to Aruba where the availability of psychiatric help was even more limited. It must be borne in mind that persons with mental-health problems may have difficulties in assessing their own situation or needs, and may be unable to indicate coherently, or even at all, that they require treatment (see paragraph 106 above).
125. Having regard to the foregoing, the Court finds that the lack of any kind of treatment or even of any assessment of treatment needs and possibilities meant that, at the time the applicant lodged his application with the Court, any request by him for a pardon was in practice incapable of leading to the conclusion that he had made such significant progress towards rehabilitation that his continued detention would no longer serve any penological purpose. This finding likewise applies to the first, and in fact only, periodic review that was carried out of the applicant’s life sentence. This leads the Court to the conclusion that the applicant’s life sentence was not de facto reducible as required by Article 3.
126. This being the case, the Court does not consider it necessary to conduct any further or more detailed analysis of either the pardon system or the periodic-review mechanism with a view to assessing whether the life sentence was de jure reducible, or of the regime under which the applicant was detained.
127. Accordingly, there has been a violation of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
128. Article 41 of the Convention provides:
“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.”
129. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage which he had suffered as a result of ill-treatment, the lack of mental-health treatment and the long period of unacceptable, inhuman and degrading conditions of detention.
130. The Government considered this amount unreasonable.
131. The Court considers in the circumstances of the present case that its finding of a violation of Article 3 constitutes sufficient just satisfaction and accordingly makes no award as regards any non-pecuniary damage that may have been sustained by the applicant.
132. The applicant claimed EUR 40,200 in respect of 134 hours of work carried out by his counsel in connection with the periodic review conducted in Curaçao and with the Strasbourg proceedings, EUR 464.33 in respect of air fares and other travel expenses incurred by his counsel in and between Curaçao and Aruba, and EUR 188.10 for hotel expenses incurred for the attendance at the hearing in Strasbourg of counsel and her adviser. The total amount claimed under this head thus came to EUR 40,852.43.
133. The Government were of the view that both the hourly fee of EUR 300 and the number of hours billed were excessive.
134. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, they are only recoverable to the extent that they relate to the violation found (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 418, ECHR 2011, and Creangă v. Romania [GC], no. 29226/03, § 130, 23 February 2012). In this connection the Court reiterates that the applicant’s claims were only partially successful before it. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to make an award of EUR 27,500 for the proceedings before the Court.
135. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Dismisses, unanimously, the Government’s preliminary objections concerning the standing of the applicant’s son Johnny Francis van Heyningen and his sister Altagracia Murray to pursue the application and the applicant’s victim status for the purposes of Article 34 of the Convention;