Communicated on 20 October 2017

THIRD SECTION

Application no . 2445/17 Ashton Henry LAKE against the Netherlands lodged on 3 January 2017

STATEMENT OF FACTS

1 . The applicant, Mr Ashton Henry Lake, is a British national who was born in 1963 and, at the time the present application was lodged, was detained in 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 9 May 1984 the applicant was convicted of unlawful restraint ( wederrechtelijke vrijheidsberoving ), rape and murder by the Court of First Instance of the Netherlands Antilles ( Gerecht van Eerste Aanleg van de Nederlandse Antillen – “the Court of First Instance”) in Curaçao . A sentence of life imprisonment was imposed. On 23 April 1985, in appeal proceedings, the Joint Court of Justice of the Netherlands Antilles ( Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen – “the Joint Court of Justice”) upheld the judgment. It became final on 16 April 1986 after the Supreme Court ( Hoge Raad ) declared an appeal on points of law lodged by the applicant inadmissible.

4 . The applicant was initially detained on Curaçao . In 1992 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 judgments of the Court of First Instance and the Joint Court of Justice, has gone missing. On 24 July 1986 the Joint Court of Justice drew up an extracted judgment ( extract vonnis ) which, apart from the applicant ’ s personal details, only states that on 23 April 1985 it upheld the judgment of the Court of First Instance convicting him of unlawful restraint, rape and murder and sentencing him to life imprisonment, and that the judgment became final on 16 April 1986 after an appeal on points of law had been declared inadmissible by the Supreme Court.

3. Request for a pardon

6 . On 4 May 2015 the applicant requested a pardon from the Governor of Sint Maarten. He argued that his life imprisonment was unlawful because there were no penological grounds justifying his continued detention. Even if he had been dangerous in the past there was nothing to show that he continued to be so. Moreover, every aim pursued by the imposition of the sentence must have long been achieved by now. Owing to the fact that the original judgment had been lost, it could no longer be established exactly what aims the court 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. Given that he had already spent more than thirty years in detention and that, had he not been sentenced to life imprisonment, the maximum length of imprisonment that it would have been possible to impose for the offences at issue was twenty years, he had to be considered to have served the punitive part of the sentence. Moreover, he did not constitute a danger to society, so there was no reason to assume that society needed to be protected from him. In support of his request he submitted a behavioural report drawn up by the governor of Point Blanche Prison on 8 January 2015, according to which he had been displaying positive behaviour whilst in the facility. The report further stated that he had developed himself in different ways such as by training to be a car mechanic, welder and upholsterer; that he was helpful, kept himself busy and abided by the rules; that he spent most of his time with older detainees and not the younger ones, whom he considered to be spoiling everything; and that he got on really well with the prison staff to the point that they sometimes even thought that he was one of them. As such, the applicant was a “model prisoner”.

7 . The Cabinet of the Governor of Sint Maarten acknowledged receipt of the request for a pardon on 5 May 2015 and informed the applicant that it had been forwarded to the Joint Court of Justice for advice.

8 . 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

9 . At the time the applicant ’ s conviction and sentence became final, 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.

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 1985, 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

12 . 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.”

13 . 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 a country decree ( landsbesluit ) after the court which issued the judgment has been consulted, taking into account provisions to be laid down by or pursuant to a country ordinance ( landsverordening ).”

Such country decrees are issued by the Governor.

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

14 . 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).

15 . 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.

16 . 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) 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.

17 . 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

18 . 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 reoffending.

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].”

19 . 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).

COMPLAINT

20 . The applicant complains under Article 3 of the Convention that he has been incarcerated for more than thirty years without any prospect of release and without the possibility of having his life sentence reviewed, even though since 1 June 2015 Article 1:30 of the Criminal Code of Sint Maarten has provided for such a possibility after at least twenty-five years.

He further submits that he has not been provided with a real opportunity to rehabilitate himself. In that connection he argues that no assessment has been made of his needs as regards treatment with a view to facilitating his rehabilitation and reducing the risk of his reoffending. Moreover, he does not know what he must do to be considered for release and under what conditions. He further submits that, to date, the Joint Court of Justice has not done anything in terms of providing him with a review of his sentence; either in the context of Article 1:30 of the Criminal Code of Sint Maarten, or in the context of his request for a pardon.

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. Is the applicant ’ s life sentence 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. Has such a periodic review been carried out yet? If so, what was the outcome? If not, why not, and when will such a review be carried out? Is there any action which the applicant can take in order to ensure that the periodic review is carried out?

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 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?