Communicated on 20 October 2017

THIRD SECTION

Application no . 21464/15 Romero Rudolf CANWORD against the Netherlands lodged on 28 April 2015

STATEMENT OF FACTS

1 . The applicant, Mr Romero Rudolf Canword , is a Dutch national who was born in 1959 and, at the time the present application was lodged, was detained on the Caribbean island of Sint Maarten (an autonomous country within the Kingdom of the Netherlands). He is represented before the Court by Ms C. Reijntjes-Wendenburg , a lawyer practising in Maastricht.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s conviction and detention

3 . On 10 December 1999 the applicant was taken into pre-trial detention. Following first-instance proceedings, about which the file submitted to the Court contains no information, the applicant was convicted of murder in appeal proceedings before the Joint Court of Justice of the Netherlands Antilles and Aruba ( Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba – “the Joint Court of Justice”) on 9 January 2001. A sentence of life imprisonment was imposed. The judgment became final on 18 December 2001 after the Supreme Court ( Hoge Raad ) declared an appeal on points of law lodged by the applicant inadmissible.

4 . The applicant was initially detained in Curaçao . On 28 August 2009 he was transferred to Point Blanche Prison in Sint Maarten. It appears that the inmates of that prison were transferred to Curaçao in early September 2017, in the wake of hurricane Irma which caused huge damage to the island of Sint Maarten, including Point Blanche Prison.

2. Case file relating to the criminal proceedings

5 . The case file relating to the criminal proceedings, including the judgment of the Joint Court of Justice, has gone missing. On a number of occasions the prison authorities in Curaçao unsuccessfully requested the Public Prosecutions Department to provide them with a copy of the judgment. On 21 April 2008 the Joint Court of Justice drew up an extracted judgment ( extractvonnis ) which, apart from the applicant ’ s personal details and case numbers, only states that he was convicted of murder and sentenced to life imprisonment on 9 January 2001, and that the judgment became final on 18 December 2001 after an appeal on points of law had been declared inadmissible by the Supreme Court.

6 . In 2010 the applicant started criminal-law injunction proceedings before the Curaçao Court of First Instance ( gerecht in eerste aanleg ) to be provided with a copy of the original judgment of the Joint Court of Justice as well as the case file for the purposes of a request for revision ( herziening ) which he wanted to lodge. The Court of First Instance rejected the applicant ’ s request. Having established that the case file, as well as the duplicate file of the Public Prosecutions Department, had been lost and was untraceable, it could not issue an order requiring the respondent parties to submit a copy of the case file as they would be unable to comply with it. The court added that it had not been established that the applicant ’ s former counsel was not in possession of (a copy of) the file either.

3. Criminal-law injunction proceedings relating to the life sentence

7 . On 6 October 2014 the applicant instituted criminal-law injunction proceedings before the Joint Court of Justice, seeking his release or, in the alternative, to be provided with appropriate psychiatric and/or psychological and/or other suitable treatment, aimed at alleviating an already diagnosed or yet to be diagnosed mental illness. According to the applicant, his continued life imprisonment was unlawful and in breach of Articles 3 and 5 of the Convention.

8 . In that connection he submitted that the extracted judgment of 21 April 2008 (see paragraph 5 above) provided no insight into the reasons which had led the Joint Court of Justice to impose a life sentence. This was a relevant issue, since it followed from the case-law of the Court that for the deprivation of his liberty to be in compliance with Article 5 of the Convention, a causal connection between his conviction and the execution of the sentence was required. In the absence of any indications to the contrary, it had to be assumed that the life sentence had been imposed both for reasons of punishment and in order to protect society. Given that he had already spent fifteen years in detention, he had to be considered to have served the punitive part of his sentence. Moreover, he did not constitute, or no longer constituted, a danger to society, so there was no reason to assume that society needed to be protected from him. In that connection he referred to a behavioural report drawn up by the governor of Point Blanche Prison on 26 August 2014, according to which he had been displaying positive behaviour whilst in the facility. The report further stated that the applicant worked in the library and carried out other activities; that he was helpful, kept himself busy, abided by the rules and spoke his mind whenever he did not agree with something; and that he did not have much to do with the other detainees, especially the younger ones, whom he considered to be rude and lacking in respect. The report concluded that the applicant was a “model prisoner”.

9 . The applicant further argued that, contrary to Article 3 of the Convention, he had no prospect of release or possibility of review. As regards the former, he was of the view that, whilst in detention, he had changed so significantly that his continued detention could no longer be justified on legitimate penological grounds. The fact that, owing to the case file (including any behavioural reports) having gone missing, it was impossible to compare his condition at the time he committed the offence to his present condition could not be held against him. If the Joint Court of Justice considered that his behaviour had not changed to a sufficiently significant extent, he ought to be provided with appropriate treatment in order to prevent him ending up in the same situation as the applicant in Murray v. the Netherlands ([GC], no. 10511/10, ECHR 2016) who, after having been detained for tens of years, could not be released because he had not received treatment. A failure to provide him with treatment rendered his release de facto impossible.

10 . In support of his claim that he had no possibility of review, the applicant – who posited that Sint Maarten law had applied to the execution of his sentence since 10 October 2010 (see paragraph 16 below) – pointed to the fact that life sentences were not subject to periodic review in Sint Maarten and that the Sint Maarten Constitutional Court had found that the pardon system provided insufficient guarantees (see paragraphs 23 - 24 below).

11 . In a decision of 26 November 2014 the Joint Court of Justice declined to issue the orders sought by the applicant. It held that, regardless of whether Sint Maarten or Curaçao law applied, he was entitled to an assessment of the question whether his life sentence should be reduced. The possibility of seeking a pardon, which existed in both Sint Maarten and Curaçao law, provided a prospect of release and a possibility of review. In certain circumstances, so the court considered, a refusal of a pardon might be unlawful, particularly when legitimate penological grounds for the continuation of the detention no longer existed. In such a situation – that is to say, after the refusal of a request for a pardon – the need for the continuation of the detention could be put before a court for examination in criminal-law injunction proceedings. The only circumstances in which it could not reasonably be expected that a person sentenced to life imprisonment would request a pardon were if it were to be assumed from the outset that a decision on such a request would not be forthcoming within a reasonable time or if it would not come about in a sufficiently conscientious manner in which account was taken of case-law relating to the review of life sentences. According to the Joint Court of Justice, specific facts or circumstances on the basis of which it had to be feared that such a situation would arise had not been alleged in the present case, nor had they become apparent.

The Joint Court of Justice concluded that the fact that the applicant had not yet applied for a pardon but was still able to do so stood in the way of his request for release being granted.

12 . The Joint Court of Justice reached the same conclusion in respect of his request to be provided with appropriate treatment. It noted that the case file on the basis of which he had been convicted had gone missing; however, the Procurator General had stated in chambers that part of the file had nevertheless been recuperated. In proceedings concerning a request for a pardon the Joint Court of Justice would have to examine – as part of its advisory role in such proceedings – whether the imposition of the life sentence was related to any mental illness the applicant might have been suffering from at the time, and/or whether that illness was relevant for the determination of the danger which society would face if the applicant were to be released. It might be that additional information was required; if this were the case, the Joint Court of Justice did not doubt that it would be obtained. Only then would it be clear if the applicant should be offered treatment. Accordingly, the pardon procedure also provided for a solution in this respect.

4. Request for a pardon

13 . On 19 February 2015 the applicant requested a pardon from the Governor of Sint Maarten. He argued that his life imprisonment was unlawful; firstly, because it was not based on an original judgment, and, secondly, because he had not been sentenced to life imprisonment. He further submitted that there were no penological grounds justifying his continued imprisonment. Even if he had been dangerous in the past, there was nothing to show that he continued to be so. Owing to the fact that the original judgment had been lost, it could no longer be established exactly what aims the Joint Court of Justice had had in mind when it had imposed the sentence. The aim of the sentence could not have been entirely punitive. It was more likely that the court had been of the view that society needed protecting from him; however, it had to be established whether that was still the case. In support of his request the applicant submitted the report drawn up by the governor of Point Blanche Prison (see paragraph 8 above).

14 . The Cabinet of the Governor of Sint Maarten acknowledged receipt of the request for a pardon on 26 February 2015 and informed the applicant that it had been forwarded to the Joint Court of Justice for advice.

15 . The applicant has not been informed whether the Joint Court of Justice has issued advice and, if it did, to which Governor (of Sint Maarten or Curaçao ) it was sent. However, on 22 June 2015, after lodging the present application, he was informed that the Governor of Curaçao was the competent authority to decide his request for a pardon, and that it had therefore been transferred to that Governor.

The applicant, through his legal counsel, has periodically requested the Ministry of Justice – working on the case on behalf of the Governor – to inform him of the current situation regarding his request for a pardon. No replies have been received other than that the matter is still “under consideration”.

B. Relevant domestic law and practice

1. Constitutional context

16 . At the time the applicant was convicted and sentenced, the Kingdom of the Netherlands consisted of the Netherlands (the Realm in Europe), the Netherlands Antilles (consisting of the islands of Bonaire, Curaçao , Sint Maarten, Sint Eustatius and Saba) and Aruba, the latter island having become an autonomous “country” ( land ) within the Kingdom. On the Netherlands Antilles, the Head of State of the Kingdom (the Queen, at that time) was represented by a 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 (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.

17 . The countries of the Kingdom have their own legal systems, which may differ from each other.

18 . The Joint Court of Justice of the Netherlands Antilles and Aruba, which imposed the life sentence on the applicant in 2001, was renamed the Joint Court of Justice of Aruba, Curaçao , Sint Maarten and of Bonaire, Sint Eustatius and Saba in 2010.

2. Pardons in Curaçao and Sint Maarten

19 . 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.”

20 . Since 10 October 2010 Article 93 of the Constitution of Curaçao and Article 118 of the Constitution of Sint Maarten have provided as follows:

“Pardons will be granted by country decree ( landsbesluit ) 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 ( landsverordening ).”

Such country decrees are issued by the Governor.

3. Decision of the Sint Maarten Constitutional Court of 8 November 2013

21 . At the request of the Sint Maarten Ombudsman and prior to its entry into force, the Sint Maarten Constitutional Court assessed the constitutionality of parts of the new Criminal Code, including Article 1:13 which provided for life imprisonment as a sentence. It examined the pardon system under Article 118 of the Constitution ( Staatsregeling ) of Sint Maarten and initially considered that this could in principle provide for a “possibility of review” and a sufficient “prospect of release”, as required by the Court ’ s judgment in Vinter and Others v. the United Kingdom ( [GC], nos. 66069/09 and 2 others, § 110, ECHR 2013 (extracts)). In an interlocutory decision of 15 August 2013 it asked the Sint Maarten Government to confirm that a pardon would be granted if, in the terminology of the Netherlands Pardons Act, it appeared plausible that the enforcement of the trial court ’ s sentence or its continuation did not reasonably serve any of the aims pursued through the application of the criminal law, or if, in the terminology of the Court, continued detention could no longer be justified on legitimate penological grounds (ibid., § 119 ).

22 . The Sint Maarten Government replied that a pardon could be granted, inter alia , if it appeared plausible that the enforcement of the trial court ’ s sentence or its continuation did not reasonably serve any of the aims pursued through the application of the criminal law. In such a situation, a reduction of a sentence by means of a pardon could be deemed justified.

23 . In its decision of 8 November 2013 (case 2013/1, ECLI :NL:OCHM:2013:1 ) the Constitutional Court did not accept that a prisoner serving a life sentence could (rather than would) only be released when the continuation of that sentence no longer served any legitimate penological grounds. The possibility that a court, in a situation where a pardon had been refused even though legitimate penological grounds no longer pertained, might subsequently (for example in criminal-law injunction proceedings) nevertheless order the prisoner ’ s release was considered insufficient by the Constitutional Court to conclude that there was an adequate possibility of review and a prospect of release at the time the life sentence was imposed.

24 . For that reason the Constitutional Court held that Article 1:13 of the new Criminal Code was incompatible with Article 3 of the Constitution, which prohibits torture and cruel, inhuman or degrading treatment or punishment. It quashed Article 1:13 and all other provisions of the Criminal Code connected to it in so far as they referred to a sentence of life imprisonment.

4. Periodic review of life sentences

25 . The provisions of the Sint Maarten Criminal Code that had been quashed by the Constitutional Court were subsequently reintroduced into the Criminal Code and entered into force on 30 May 2015. At the same time Article 1:30 of the Criminal Code was amended to include a periodic review of life sentences after at least twenty-five years, entailing a release on parole if in the opinion of the Joint Court of Justice further unconditional imprisonment no longer served any reasonable purpose.

The relevant parts of Article 1:30 of the Sint Maarten Criminal Code provide:

“1. The convicted person sentenced to life imprisonment, shall be conditionally released when he has been deprived of his liberty for at least twenty-five years if in the opinion of the [Joint] Court [of Justice] further unconditional execution of the sentence no longer serves any reasonable purpose.

2. The [Joint] Court [of Justice] will in any event take into account the position of the possible victim, surviving close relatives and the risk of the convicted person re-offending.

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.

...

6. No legal remedy lies against the decision of the [Joint] Court [of Justice].”

26 . A periodic review of life sentences (but after twenty years) had been introduced in Curaçao in November 2011 (see Murray v. the Netherlands [GC] , no. 10511/10 , §§ 55-56, ECHR 2016).

COMPLAINTS

27 . The applicant submits that his continued life imprisonment already breaches Article 3 of the Convention because at the time he lodged his application no possibility for a periodic review existed in Sint Maarten. Although it is possible to seek a pardon, that procedure provides, as was established by the Constitutional Court, insufficient guarantees to be considered as constituting a possibility of review and offer a prospect of release. Moreover, apart from indicating that (non-binding) advice is to be sought from the court which imposed the life sentence, the law provides no specific guidance as to whether, and if so what kind of, information is to be obtained about the person concerned, or the criteria or conditions that are to be taken into account in the assessment of the request. As a result, the applicant does not know what he must do to be considered for release and under what conditions.

28 . Lastly, the applicant alleges a violation of Article 13 in conjunction with Article 3 of the Convention. It appears from the decision of the Joint Court of Justice of 26 November 2014 in his case that he was unable to have the lawfulness of his continued detention examined by a court. As for a request for a pardon, this could not be considered an effective remedy for the reasons set out in his complaint under Article 3; moreover, even if it were found that his continued life imprisonment no longer served any penological goals, there was no guarantee that that procedure would actually lead to a pardon being granted. In addition, he would not be able to raise in proceedings concerning a request for pardon his grievance that he should have known at the outset of his sentence what he had to do to become eligible for release.

QUESTIONS

1. Is the applicant ’ s life sentence compatible with Article 3 of the Convention, in particular does the applicant have available to him a prospect of release and a possibility of review?

2a. What is the current situation regarding the applicant ’ s request for a pardon?

2b. Will the applicant ’ s request for a pardon be granted if it is concluded that legitimate penological grounds for the continuation of his detention no longer exist?

2c. By what procedural guarantees is the pardon procedure surrounded (see MatioÅ¡aitis and Others v. Lithuania , nos . 22662/13 and 7 others, §§ 170 ‑ 171 and 181, 23 May 2017)?

3a. If the applicant is not granted a pardon, will his life sentence be subject to the periodic review of Article 1:30 of the Criminal Code of Sint Maarten or of Article 1:30 of the Criminal Code of Curaçao ?

3b. Is the applicant, or has he been made, aware which review procedure will apply to him?

3c. Does the fact that periodic review mechanisms have been introduced in Sint Maarten and Curaçao relatively recently impact on the relevance to be given to the principle that a whole life prisoner should be entitled to know, at the outset of his or her sentence, when and under what conditions a review of his or her sentence will take place or might be sought (see Čačko v. Slovakia , no. 49905/08, §§ 79-80, 22 July 2014, and Koky v. Slovakia (dec.), no. 27683/13, 16 May 2017)?

4. Has the applicant been provided with an opportunity to rehabilitate himself? If so, in what way? If not, why not?

5. Has an assessment been made, at the time of the criminal proceedings against him and/or subsequently, of the applicant ’ s needs as regards treatment with a view to facilitating his rehabilitation and reducing the risk of his reoffending? If yes, what was the outcome? If not, why not?