This guest post was written by Nicole Bürli, PhD, Human Rights Advisor of the World Organisation against Torture.
On 26 April 2016, the Grand Chamber of the Court delivered its judgment in the case of Murray v. the Netherlands. Overturning the Chamber judgment, the Grand Chamber rightly found the irreducibility of a life sentence of a mentally disabled prisoner incompatible with Article 3 of the Convention. With this judgment, the Court clarified relevant principles for rehabilitation and review of life sentences developed in Vinter and Others v. the United Kingdom.
The applicant was sentenced to life imprisonment in the Netherlands Antilles in 1979. He killed the six-year old niece of a former girlfriend as revenge for her ending of their relationship. He served the first nineteen years of his sentence in Curaçao and then transferred to Aruba to be closer to his family. In Curaçao, he was placed under psychiatric observation and received some basic treatment because a psychiatric report concluded that he suffered from a severe personality disorder. His treatment ended when he transferred to Aruba where psychiatric therapy was not available. The applicant repeatedly requested pardon, which was always refused based on his mental health problems.
In 2013 a Chamber of the Court held unanimously that the applicant’s life sentence was compatible with Article 3 because the Netherlands Antilles had introduced a periodic review mechanism in 2011 for life sentences. The review mechanism provided that any person sentenced to life imprisonment would be released after serving at least 20 years if imprisonment no longer served a reasonable purpose. The Chamber noted that the applicant’s sentence had indeed been reviewed on the basis of a number of expert reports. Since the national court considered the applicant dangerous and capable of re-offending, he was not eligible for pardon or conditional release.
The case was referred to the Grand Chamber in April 2014. While the case was pending, the applicant was released on health grounds because he suffered from terminal cancer. He passed away shortly afterwards. The applicant’s children subsequently pursued the case.
Grand Chamber Judgment
The Grand Chamber decided that the applicant’s life sentence was de facto irreducible and thus constituted inhuman punishment. The Court mainly criticized the lack of adequate psychological treatment, which was a pre-requisite to be eligible for pardon. National authorities repeatedly concluded that the applicant’s risk of reoffending was too great as he suffered from serious mental disabilities. At the same time, the applicant did not have any possibility to make significant progress towards rehabilitation, as he was not provided with the necessary treatment. The applicant was thus deprived of any prospect of release and his sentence was not de facto reducible as required by Article 3 of the Convention.
The Grand Chamber’s reasoning brought clarifications on two issues: the relevant principles for review of life sentences and the principle of rehabilitation of life prisoners with mental disabilities
Relevant principles for review of life sentences
The imposition of a life sentence on an adult offender is not in itself incompatible with Article 3 of the Convention. As found in Vinter and Others v. the United Kingdom, however, a life sentence needs to be de facto and de jure reducible. This means that there needs to be a prospect of release and the possibility of review. In Murray v. the Netherlands, the Grand Chamber has now set out three principles with which a review mechanism must comply:
(1) There must be pre-established criteria and rules for assessment, which must have a sufficient degree of clarity and certainty.
(2) The grounds for release must reflect the courts case-law. This means that terminal illness or physical incapacitation cannot be the only grounds for release of a whole life prisoner. In Vinter and Others v. the United Kingdom, the Court found that this does not constitute a ‘prospect of release’. Rehabilitation and being able to live a crime-free life need to be additional grounds to be considered for release.
(3) The review mechanism must guarantee sufficient procedural safeguards, including a reasoned decision that explains what the prisoner needs to do in order to be considered for release.
Rehabilitation of a whole–life prisoner with mental disabilities
The Court has previously found that prisoners must be given the chance to rehabilitation and a prospect of release if that rehabilitation was achieved. While punishment was the most important aim of imprisonment, the penal policy must be such as to reintegrate the person into society. In the present case, the Court specified that the obligation to offer the possibility of rehabilitation is one of means and not one of result. Member states can fulfil their obligation by, for example, setting up and reviewing an individualised programme that allows the prisoner to develop him or herself in order to be able to lead a responsible and crime-free life.
The Court further reasoned that, for mentally disabled prisoners, a rehabilitation programme needs to include suitable medical and psychological treatment. Article 3 obliges states to assess a “prisoners’ needs as regards treatment with a view to facilitating their rehabilitation and reducing the risk of their reoffending” (paragraph 108). An assessment and possibility for treatment should be conducted regardless of whether the applicant had requested such treatment. Although there is no ‘right of rehabilitation’ per se, the Grand Chamber has nevertheless formulated a duty of member states to make rehabilitation possible.
Vulnerability of mentally disabled whole-life prisoner
It is noteworthy that the Grand Chamber relied on the concept of vulnerability when substantiating the Article 3 violation (on vulnerability and the Court’s case-law see Peroni/Timmer 2013). In fact, the vulnerability factor is the main difference between the findings of the Chamber and the Grand Chamber. While the Chamber ignored the vulnerability of the applicant, the Grand Chamber stated: “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” (paragraph 106). The Grand Chamber thus concluded that member states need to provide proper treatment for the problem diagnosed and suitable medical supervision.
By taking into account the applicant’s vulnerability, the Grand Chamber aims at achieving substantive equality for mentally disabled whole-life prisoners, which in turn obliges states to take positive measures to treat and rehabilitate a mentally disabled prisoner. The lack of such treatment rendered the life sentence irreducible and violated Article 3.
In contrast, the Chamber did not consider the applicant’s disadvantaged status when analyzing the domestic review process. It thus came to the conclusion that Article 3 was not violated, as domestic legislation did allow for a review and the applicant’s case had been reviewed.
With its vulnerability reasoning, the Grand Chamber provided important guidance for the treatment and prison condition of whole-life prisoners and thus limited the margin of appreciation in this area.
The Grand Chamber judgment is a welcome clarification on the case-law concerning irreducible life sentences and on the absolute prohibition of inhuman punishment.