EHRM, 26-04-2016, nr. 10511/10

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.

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:

Article 41 of the Convention provides:

Perfectly in line with the reasoning of Vinter and Others2., the Grand Chamber finds in the present case that the Contracting Parties to the Convention have a positive obligation to promote resocialisation of prisoners (paragraph 109 of the judgment), namely by providing and implementing an individualised sentence plan (paragraph 103). This is the very first time that the Court has acknowledged the crucial importance of an individualised sentence plan for the promotion of resocialisation of prisoners, that importance being reinforced by a statement of principle of the Grand Chamber. The obligation to promote resocialisation is an Article 3 obligation which imposes on the State a duty to act or, to use the words of the Grand Chamber, ‘a duty to make it possible for such prisoners to rehabilitate themselves’ (paragraph 104)3.. Thus, the Grand Chamber perceives the State's legal obligations to promote resocialisation and to provide and implement an individualised sentence plan as two sides of the same coin.

The obligation to promote resocialisation is obviously an obligation of means: the State is only obliged to provide the means for the prisoner to make the effort to reintegrate himself or herself into society. This is the meaning of the self-evident last sentence of paragraph 104. But the Article 3 obligation to provide the ‘conditions of detention and facilities, measures and treatments’, in other words, the appropriate individualised sentence plan and the respective implementation conditions, is an obligation of result, as is crystal clear from the language of paragraph 111. The statement of the Grand Chamber in this paragraph is quite assertive: the State will have complied with its obligations under Article 3 ‘when it has provided’ for conditions of detention, facilities, measures and treatments capable of enabling a life prisoner to reintegrate himself or herself into society, and this obligation is independent from the prisoner's willingness to make use of those facilities, measures and treatments. It is in this light that the reference to an ‘individualised programme’ in paragraph 103 as an ‘example’ of a resocialisation-oriented prison policy must be interpreted. In other words, the meaning of the exemplificative language of paragraph 103 is only understandable in the context of the strongly assertive language of paragraph 111. The individualised sentence plan is the central pillar of a resocialisation-oriented prison policy, but it should be articulated with a set of other detention conditions, material facilities, practical measures and psychiatric, psychological and other medical treatment.

From the Grand Chamber's perspective, the scope of the State's obligation to promote resocialisation and to provide and implement an individualised sentence plan is the widest possible. Although Mr Murray was diagnosed with a pathological disorder, in particular a very limited development of his mental faculties, he was never considered mentally insane. Neither the few psychiatrists consulted nor the domestic courts questioned his criminal liability. Yet the Court does not restrict the scope of its analysis to a discussion of the State's obligation to provide resocialisation programmes to mentally sane offenders. On the contrary, the broad language used in paragraph 109, which refers to ‘treatments or therapies — be they medical, psychological or psychiatric’, clearly indicates the willingness of the Grand Chamber to submit the State to the same obligation vis-à-vis mentally insane offenders. In view of the borderline nature of Mr Murray's mental condition, the Grand Chamber purposely expands its analysis to the situation of all ‘prisoners with mental health problems’ (sub-heading (c) of ‘the relevant principles’ of ‘[t]he court's assessment’), regardless of the gravity of the mental illnesses or disorders of the prisoner, the degree of the prisoner's impairment in taking autonomous decisions and the determination of the relevant legal status as a mentally sane or insane offender in the criminal proceedings. Such an unrestricted approach is obviously comprehensible in the light of both 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 and the 2006 European Prison Rules, which the Court cites abundantly in paragraphs 66 and 73–76 of the judgment.

Accordingly, as a matter of law, there is an international positive obligation for States Parties to the Convention to provide and implement an individualised sentence plan, with a comprehensive and updated risk and needs assessment, at least, for all mentally sane offenders sentenced to life or long-term imprisonment, that is, a prison sentence or sentences totalling five years or more4.. Mentally insane offenders subjected to a similar period of internment or longer should, a fortiori, benefit from the same plan. In spite of the apparent focus on the situation of life prisoners, the Grand Chamber does signal that its principled approach to the obligation to promote resocialisation applies to ‘all prisoners, including those serving life sentences’5.. When referring specifically to the individualised programme, the Grand Chamber also mentions in general terms the ‘sentenced prisoner’, not the life prisoner, as the beneficiary of such programme.

Indeed, both the Council of Europe and the United Nations have for many years and on numerous occasions defended the imperative necessity of an individual sentence plan based on a permanently updated risk and psychiatric and social needs assessment of the inmate concerned, regardless of whether their mental condition be normal or abnormal 6..

In its Resolution (73) 5 on Standard Minimum Rules for the Treatment of Prisoners, the Committee of Ministers stated as follows:

(my emphasis)

Resolution (76) 2 on the Treatment of Long-Term Prisoners provided that national authorities should ‘grant periods of leave from prison not as a relief from detention but as an integral part of the programme of treatment’.

Recommendation No. R (87) 3 of the Committee of Ministers to member States on the European Prison Rules provided as follows:

(my emphasis)

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 stated, inter alia, as follows:

(my emphasis)

Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules confirm and reinforce what the 1987 Prison Rules had already stated.

(my emphasis)

The CPT Standards (CPT/Inf/E (2002) 1 — Rev. 2011) on long-term imprisonment and long-term prisoners describe a range of psychological problems which they face. In the view of the CPT, the regimes which are offered to prisoners serving long sentences should seek to compensate for these effects in a positive and proactive way:

(my emphasis)

The European penological standards correspond to and are based on the universal regime approved long ago by the United Nations. The United Nations Standard Minimum Rules for the Treatment of Prisoners, of 1955, provide, inter alia, as follows:

(my emphasis)

The Grand Chamber finds that the positive obligation to promote resocialisation of prisoners and provide and implement an individualised sentence programme was not affected by the deficient material conditions and inadequate resources prevailing in the Netherlands Antilles, as shown in paragraph 117. This lack of resources could not and should not have obviated the need for the recommended treatment. In James, Wells and Lee, the Court had already affirmed that ‘in cases concerning indeterminate sentences of imprisonment a real opportunity for rehabilitation is a necessary element of any part of the detention’, insisting that ‘the inadequate resources at issue in the present case appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures.’7.Member States have to provide for the necessary financial means to pursue their penal policies in accordance with the European human rights standards. Consequently, the more retributive the penal policy, the greater the need to invest sufficiently in the prison system to counteract the well-established negative effects of such policy on those women and men who are subjected to it8.. That did not occur with indeterminate sentences of imprisonment in the United Kingdom, as concluded by the Court in James, Wells and Lee. The same criticism is made in Murray with regard to the draconian prison policy of the Netherlands Antilles.

The criticism of the Grand Chamber finds clear support in the first report of the Committee for the Prevention of Torture (CPT) on the situation in Koraal Specht prison, where the applicant served nineteen years of his sentence, from 1980 to 1999. The CPT report refers to a visit in 1994, when the prison had a total capacity of 198, but at the time of the visit was holding nearly 500 inmates. The CPT did not soften the wording of its judgment:

(original emphasis)

On the particular situation of life prisoners, the CPT was even clearer:

(original emphasis)

Three years later, the situation had not changed. In its 1997 visit to the same prison, the CPT found the same material conditions (‘the overall state of repair of the detention areas and cell equipment had not improved’), but noted that ‘the conditions of detention of prisoners serving life sentences had indeed changed as compared to those observed in 1994 … In particular, they were no longer permanently confined to their unit, and their situation was equivalent to that of other prisoners.’10.

In its 1999 visit to the same prison, the CPT observed ‘some improvement at Koraal Specht Prison as regards certain aspects of the material conditions of detention, attributable in great measure to the decrease in the total number of persons held in the establishment’, but added that the prison ‘still suffer[ed] from a number of serious shortcomings which pose[d] a threat to the basic rights of prisoners (including the right to life and to physical integrity) and put at risk the stability of the institution to the detriment of both prisoners and staff.’ It insisted on ‘a more developed regime of activities for all prisoners, placing special emphasis on those serving longer sentences’ and stated that ‘[p]risoners should be offered a variety of constructive activities involving a significant part of the day.’11.

On 1 December 1999 the applicant was transferred to the Korrektie Instituut Aruba (KIA) or Instituto Coreccional Nacional (ICN) in Aruba. The Grand Chamber refers, in paragraph 57 of the judgment, to the CPT visit in 2007 to this prison12.. This part of the relevant report, although not cited by the Grand Chamber, is important:

(my emphasis)

Finally, the 2014 visit of the CPT to the KIA took place a few days after the effective release of the applicant from prison13.. Like seven years before, the CPT continued to recommend that ‘the Aruban authorities take the necessary steps to redress the state of decay and dilapidation in the prison, including preventing further flooding. Further, the number of inmates accommodated in each cell should not exceed two. In addition, measures should be taken to provide artificial lighting in every cell and to fully partition the sanitary annexe in each cell.’ More specifically, it reiterated its recommendation that ‘activities for prisoners be developed, with a view to ensuring that all prisoners (including those on remand) [could] spend a reasonable part of the day (i.e. 8 hours or more) outside their cells engaged in purposeful activities of a varied nature: work, preferably with vocational value; education; sport; recreation/association.’

Being aware of these five detailed reports, the Government cannot claim that they did not receive clear guidance from the Council of Europe with regard to the proper solutions for the shortcomings of their prison policy in the Netherlands Antilles and, more precisely, in Koraal Specht prison and the KIA. Only a lack of political will can explain why the CPT's repetitive appeal over a period of thirty years has remained unheeded14..

The Government's first defence is encapsulated in the form of a rhetorical question: ‘is it reasonable to measure the State's behaviour since 1980 to a standard that was introduced by the Court for the first time in 2013?’ The Government's argument is that the obligation to promote resocialisation and set a review mechanism stems from Vinter and Others and therefore cannot be imposed in the present case. The Grand Chamber firmly rebuts this argument and finds explicitly that these positive obligations were binding on the respondent State already in 1980. From the imposition of his life sentence the applicant was entitled to have a prospect of release and the possibility of a review mechanism fulfilling the requirements flowing from the Convention. Paragraph 116 of the present judgment does not leave a shadow of doubt about the Grand Chamber's intention to assess the respondent State's conduct taking into account the entire period of Mr Murray's incarceration. Thus the Court does apply the obligation to promote resocialisation and set up a review mechanism to a period of incarceration starting in 1980. In so doing, the Grand Chamber's judgment does not proceed with a retroactive application of international legal standards, since these standards have been clear at European level since 1973 (see Resolution of the Committee of Ministers (73) 5 on Standard Minimum Rules for the Treatment of Prisoners), and even earlier than that at a global level (see United Nations Standard Minimum Rules for the Treatment of Prisoners, of 1955). To put it in a straightforward way, the Grand Chamber considers that Vinter and Others only restated penological standards that had been binding on member States of the Council of Europe since at least the nineteen-eighties.

The Government also argued that the applicant had not complained specifically about the lack of psychiatric treatment when he was detained. The Grand Chamber rejects this contention in the last two sentences of paragraph 124, which refer back to the principle posited in paragraph 106. As one of the most important practical aspects of the positive obligation of States Parties to protect the physical and psychological well-being of inmates under the Convention, the obligation to provide and implement an individualised sentence plan, including individual psychiatric and psychological treatment, is an obligation of result which is imposed on States Parties to the Convention, regardless of the inmate's wishes. The inmate should of course be encouraged to adhere to and cooperate with such a plan, but the fact that he or she rejects it or remains indifferent to it will not release the State from its duty to prepare, implement and review the individual sentence plan in any event. Failure to comply with this obligation will engage State responsibility.

Thus, the failure by Mr Murray to request proper psychiatric treatment or an adequate prison programme is totally irrelevant. According to the international standards referred to above, this lack of initiative on the part of the applicant evidently did not absolve the State of its responsibility, since it was bound by a compulsory international obligation that did not depend on his wishes.

Finally, the Grand Chamber also rejects the Government's argument that Curaçao and Aruba were one country within the Kingdom of the Netherlands and that the administration of justice was a responsibility of the separate parts of the Kingdom. This contention can easily be rejected on the basis of the doctrine enshrined in Article 4 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (adopted by the United Nations International Law Commission in 2001), according to which the conduct of any State organ, be it that of the central government or of a territorial unit of the State, must be considered an act of that State under international law. It is neither Curaçao nor Aruba but the Kingdom of the Netherlands which is the Party responsible under the Convention for ensuring compliance with its standards. For this same reason, it is also irrelevant to claim, as the Government did, that there was no obligation to offer the applicant psychiatric treatment, since no such order was imposed by the sentencing court, the Joint Court of Justice. The compliance of the Dutch State's practice with the Convention does not hinge on the decisions of local courts of autonomous parts of the Kingdom.

In addition, the Court has already in the past given a clear indication that it would not accept this line of argument, when in Mathew it affirmed the duty to transfer an inmate from the KIA to a place more appropriate to his physical condition and health needs, ‘in one of the other two countries of the Kingdom if necessary’15.. Nothing substantially different distances the present case from Mathew, in the view of the Grand Chamber. Thus it does not accept the Joint Court of Justice's argument, repeated by the respondent Government, that the ‘limited intelligence’ and ‘the insufficient ability to express himself’ hindered Mr Murray's placement in a custodial clinic in the Netherlands16.. If adequate treatment was not available in Curaçao, the applicant should have been sent to the Netherlands, where professional help could have been provided to him, if necessary with translation, using one of the three languages that he spoke: Papiamento, English or, with more difficulty, Dutch. Even less acceptable is the Government's argument presented in the Grand Chamber hearing that the applicant never requested a transfer to the Netherlands. Once again it must be stressed that the State's obligation did not have to be triggered by a request from the applicant; there was an obligation for the State to act of its own motion.

The Grand Chamber clarifies the Vinter and Others judgment with regard to the parole mechanism in clear-cut language, thus lending its authority to important Chamber judgments that have been delivered since Vinter and Others17.. Although the Grand Chamber mentioned the freedom of Contracting Parties to decide on the concrete features of their own parole mechanisms, it also established clear limits to this freedom. According to paragraphs 99 and 100 of the present judgment, the parole mechanism must comply with the following five binding, ‘relevant principles’:

In the light of these Convention requirements, which sit comfortably with Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole), Contracting Parties to the Convention must establish a mechanism of review of the justification of continued imprisonment according to the penological needs of the prisoner sentenced to a life or long-term prison sentence. The logical conclusion to be drawn from the above set of Convention principles is that, if a parole mechanism must be available to those convicted of the most heinous crimes, a fortiori it must be available to other prisoners. It would fly in the face of justice if offenders convicted of less serious offences could not be paroled whenever they are apt to reintegrate society, while such an opportunity would be afforded to offenders convicted of more serious crimes. Thus, in principle, the Convention guarantees a right to parole to all prisoners18..

The Grand Chamber affirms that, as a matter of principle, the criteria on which to assess the appropriateness of parole must be established by law in a clear and foreseeable manner, as provided for by paragraph 10 of the Committee of Ministers Resolution (76) 2, paragraphs 3, 4 and 20 of the Committee of Ministers Recommendation Rec(2003)22, and paragraph 34 of the Committee of Ministers Recommendation Rec(2003)23, and, on the world stage, by Article 110 of the 1998 Statute of the International Criminal Court (Rome Statute) and Rule 223 (Criteria for review concerning reduction of sentence) of its Rules of Procedure and Evidence. The time when prison law was the realm of governmental discretion has long passed, since the terms, modalities and conditions of implementation of imprisonment and release belong to the core of the principle of legality as much as the conviction and sentencing of the offender. Thus, according to the Grand Chamber, the parole assessment criteria are not left to the discretion of the member States. The parole review mechanism must be based on ‘objective, pre-established criteria’, namely those ‘legitimate penological grounds’ explicitly established in paragraph 100 of the judgment. Beyond Vinter and Others19., the authorities confirmed by the Grand Chamber are Trabelsi v. Belgium20., Laszlo Magyar v. Hungary21.and Harakchiev and Tolumov v. Bulgaria22.. This means that prisoners have a vested and enforceable right to be paroled if and when the legal requisites of parole are present, not that all prisoners should necessarily be granted parole.

Although it notes that the balance between the different penological grounds is not ‘static’ and may evolve in the course of the execution of the sentence, the Grand Chamber does not refrain from setting out the penological ground which should prevail in the assessment of the prisoner's evolving situation: the principle of resocialisation. Thus, the logical inference from the Grand Chamber's reasoning is that, in case of conflict between different penological grounds, as for example, when the resocialisation purpose of the penalty has been achieved but there may still be a pure retributive justification for continued incarceration, the ‘prisoner's progress towards his or her rehabilitation’ should carry the most weight in the evaluation of the needs for the continued detention. Most importantly of all, the Grand Chamber restates that penological grounds do not equate to, and should not be confused with, ‘compassionate grounds for reasons of health related to ill-health, physical integrity and old age’ (paragraph 100). The relevant assessment criteria should not be limited to the prisoner's mental or physical infirmity or to his or her closeness to death. Such ‘compassionate grounds’ are clearly too restrictive.

According to the Grand Chamber, the parole review must take place within a pre-determined, reasonable timeframe, as paragraph 9 of the Committee of Ministers Resolution (76) 2 has long established and paragraph 5 of the Committee of Ministers Recommendation Rec(2003)22 and, at the global level, Article 110 §§ 3 and 5 of the Rome Statute have reiterated. In case parole is not determined in the initial review, the prisoner's situation should be reviewed at reasonable, not too widely spaced intervals, as also indicated by paragraph 12 of Committee of Ministers Resolution (76) 2, and paragraph 21 of Committee of Ministers Recommendation Rec(2003)22. In order to reach such a decision, the authority invoked by the Grand Chamber is Bodein v. France23..

Finally, according to the Grand Chamber, the parole mechanism must be under the authority of a court or at least subject to full judicial review of both the factual and the legal elements of the parole decision, as also provided by the universal standard established in Article 110 § 2 of the Rome Statute24.. By elevating the statements of Laszlo Magyar, § 57, and Harakchiev and Tolumov, §§ 258 and 262, to the pinnacles of a Grand Chamber statement on the ‘relevant principles’, the judges of the Grand Chamber unanimously reject any parole mechanism that reserves to a governmental or administrative authority the last word on sentence review which would put the continued incarceration of the prisoner in the hands of the executive and circumvent the ultimate responsibility of the judiciary, thus entrusting judicial powers to the executive and breaching the principle of separation of powers. Hence, a review by a governor, a minister or any official of the administration is not sufficiently independent to comply with the European human rights standards25..

Moreover, decisions to keep prisoners in or recall them to prison must be taken with all procedural guarantees of fairness, such as the guarantee of a reasoned decision26.. The implicit conclusion to be drawn from this strong statement of principle by the Court is that the parole mechanism should also include an oral hearing of the prisoners and adequate access to their files, along the lines of paragraph 32 of Committee of Ministers Recommendation Rec(2003)22, Article 110 § 2 of the Rome Statute and Rule 224 of its Rules of Procedure and Evidence. Otherwise the fairness of the review procedure would be a mirage.

To sum up, having established the above-mentioned mandatory, ‘relevant principles’, the Grand Chamber of the Court has reached in Murray a point of no return in its standard-setting function of protection of human rights of prisoners in Europe. The Netherlands Antilles pardons system is similar to the Cypriot system of adjustment of a life sentence, being on the President's discretion, subject to the agreement of the Attorney-General27.. One has to recall that in the Cypriot system there was no obligation to inform a prisoner of the Attorney-General's opinion on his or her application for early release or for the President to give reasons for refusing such an application. Furthermore, there was no published procedure or criteria governing the operation of the procedure. Lastly, a refusal to order a prisoner's early release was not amenable to judicial review. In the ‘relevant principles’ of Murray, the Grand Chamber takes, in substance, a very critical stance against such a discretionary and opaque system. Europe has evolved since Kafkaris and evidently the Court has evolved with it. Vinter and Others has a worthy successor in Murray.

Mr Murray was kept in detention for more than thirty-four years without any kind of psychiatric or psychological treatment, irrespective of the clearly stated need for such treatment28.. The Government were asked to provide all psychiatric reports relating to the assessment of the applicant's mental needs. They produced four psychiatric reports, of 11 October 1979, 10 February 1994, 21 July 2012 and 17 August 2012, and a ‘letter’ from a psychiatrist of 6 September 1991. This means that until the review procedure initiated in accordance with the new provisions of the Curaçao Criminal Code, only two psychiatric reports and a psychiatrist's ‘letter’ had been issued. Two psychiatric reports in the period between 1980 and 2012 — this was the extent of the professional psychiatric care that the applicant received in twenty-two years of incarceration. As the Joint Court of Justice concluded, in its judgment of 21 September 2012, while evaluating the applicant's risk of recidivism existing at the time of the imposition of the sentence in 1980 and during the period of incarceration, ‘since then no treatment in any shape or form ha[d] taken place’. Clearer than this the Antillean judges could not have been. Understandably, the judges of the Grand Chamber of this Court cannot reach a different conclusion in paragraph 122 of the present judgment, which acknowledges that Mr Murray received no treatment at all during his incarceration.

In addition to the lack of a proper prison programme adapted to Mr Murray's personal needs, the fact remains that there was no proper review mechanism in Curaçao until November 2011 that met the requirements of the court's case-law and the European penological standards. The majority deliberately choose not to address this aspect of the case in paragraph 126, although they set out the ‘relevant principles’ for that purpose in the earlier paragraphs 99 and 100. The pardons system in force in the former Netherlands Antilles provided no lawful, objective, penological criteria for the sentence review, no time-frame for the review, no judicial oversight, no obligation to give reasons for the governor's decision not to grant a pardon and no oral hearing of the inmate. No updated medical opinions or psychiatric reports on the state of the applicant's mental health or information from the prison authorities was gathered and put at the disposal of the Procurator General or the Joint Court of Justice. Everything fell within the discretion of the Governor, who was entirely free not to follow the Public Prosecution Service's submission or the Joint Court of Justice's advice in favour of release29..

In fact, Mr Murray presented thirteen requests for release, which were either refused without any reasons or not even answered30.. He was finally diagnosed with cancer in early 2013. On 2 September 2013 he was brought back to the Curaçao prison, with a view to facilitating his health treatment. After the intervention of the Court in response to a request for an interim measure, the applicant was placed in a nursing home in Curaçao, with two guards at his door. For surgery it was too late. Since treatment in prison was no longer an option, he was pardoned by the Governor only on 31 March 2014, entailing the remission of the rest of his prison sentence, and thus allowing him to die in a dignified manner in the presence of his family in Aruba. Even then, the applicant was left to his own devices. It was his sister, with her small pension, who had to pay for his nursing31..

The majority also consciously refrain from evaluating the compatibility of the new periodic review mechanism, which entered into force in Curaçao on 15 November 2011. Although this new regime was introduced after the application was lodged with the Court, its evaluation was evidently necessary, because the applicant was kept in detention until 31 March 2014, following a judgment of the Joint Court of Justice of 21 September 2012, which applied the new provisions of Article 1:30 of the Criminal Code of Curaçao. Thus, the applicable rules on periodic review of life sentences between 15 November 2011 and 31 March 2014 should have been assessed by the Court.

While the guarantees of judicial review no later than twenty years after the deprivation of liberty and every five years thereafter, of an adversarial procedure, of an oral hearing of the prisoner, of access to the files, and of a reasoned decision, are major improvements to the Curaçao legal framework, the fact that the review criteria are not sufficiently determined in paragraph 1 of Article 1: 30 (‘any reasonable purpose’) is problematic from a European human rights perspective. Too much discretion is allowed in the formulation of the review criteria. There is no way in which a life prisoner can know what he or she should do to be considered for release and under what conditions. The additional concretisation in paragraph 2 of these criteria, with the reference to the opinion of the victim or of the surviving close relatives and the risk of recidivism, does not suffice to satisfy the requirements of the principle of legality. On the contrary, the fact that the position of the victims or their relatives is included in the examination of the question whether the continued execution of a life sentence can still be justified confuses the assessment of legitimate penological grounds with an exercise of quenching the victims’ — or their relatives’ — thirst for revenge. By concentrating on the need for revenge and resentment, this policy attributes a predominant role to the worst possible form of retribution: a blind, visceral, ‘just deserts’ feeling on the part of the victims or their relatives. The offender will have to ‘rot in jail’ as long as the victims or their relatives deem their thirst for revenge unquenched, even though he or she may be ready to live a law-abiding life in society.

Worse still, this policy obviously detracts from the State's obligation to provide the proper means for victims of crime to recover from their loss. The less the State fulfils its obligation towards the victims or their relatives, the more inclined they will be to compensate for their loss with a need to prolong the offender's incarceration. Although ‘rehabilitated’, the prisoner may be kept in continued detention as a scapegoat for the State's failure to attend to the needs of the victims or their relatives. In fact, that is exactly what happened in the present case: the Joint Court of Justice found, in its judgment of 21 September 2012, that, since the victim's relatives had never received adequate psychological care, the applicant's release would shock them very much. Furthermore, it even considered that the act that he had allegedly threatened them with in 1979, i.e. 23 years before, could still contribute to their feelings of insecurity.

After the successive decisions of refusal of the applicant's thirteen requests for pardon, the judgment of the Joint Court of Justice of 21 September 2012 insisted on the risk of recidivism due to his ‘disturbed personality’. Mr Murray could not be released simply because, as the Antillean judges admitted, he had never had a chance to undergo psychiatric treatment. The only possible solution for his resocialisation would have been to provide him with proper psychiatric treatment, which was not even tried. In other words, the State refuses parole until one is capable of leading a law-abiding life in society, which can only happen if the prisoner is provided with proper psychiatric treatment by the State, but the same State withholds this treatment. This is a typical ‘Catch 22’ situation: the State imposes a condition for release but denies the prisoner the means of satisfying the condition. In this context, realistically speaking, the outcome of any review by the Governor or the Joint Court of Justice was nothing but a foregone conclusion32..

However heinous the crime committed, no prisoner deserves to be treated like forgotten ‘human waste’, to use the words of the court's former President Jean-Paul Costa33.. That is what happened to the applicant James Murray. The lack of psychiatric treatment rendered his life sentence de facto irreducible. The Article 3 violation was aggravated by the existence of a discretionary and opaque pardons system, at the time the sentence was imposed, which did not meet the Convention requirements and was of no help to the applicant. The newly introduced periodic review mechanism under Article 1:30 of the Criminal Code of Curaçao, which did not provide him relief either, is also problematic with regard to the lack of foreseeability of the grounds for review of the sentence and the predominant role that it attributes to a purely retributive, revenge-oriented penal policy.

Justice came too late for Mr Murray. He did not survive the ordeal of thirty-four years of inhuman incarceration. Although he could not benefit from compensation for the non-pecuniary damage that he endured, it would have been an act of justice to award such compensation to his heirs.