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July 8, 2016

The demise of irreducible life sentences in the Netherlands

I am pleased to be able to provide this guest posting from Dirk van Zyl Smit, who runs the Life Imprisonment Worldwide Project at the University of Nottingham, concerning a big recent ruling from the Netherlands:

The Netherlands has long been an exception to the general European rule that all persons sentenced to life imprisonment must have a realistic prospect of release before they are too old or ill to again lead a full life in free society. There are only a small number of life-sentenced prisoners in the Netherlands, 32 at the last count, but they all serve sentences akin to US-style life without parole, and are rarely, if ever, released. On 5 July 2016, that position changed dramatically. The Hoge Raad, the Supreme Court of the Netherlands, ruled that the remote possibility of a pardon, which hitherto has been the sole mechanism by which Dutch life-sentenced prisoners theoretically could be released, was inadequate. The current pardon system did not provide them with a clear prospect of being considered for release and was therefore contrary to Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment.

In coming to this conclusion the Hoge Raad quoted extensively from the standards developed by the Grand Chamber of the European Court of Human Rights (ECtHR) in 2013 in Vinter and others v United Kingdom and in 2016 in Murray v The Netherlands but then set them out and developed them further in its own words. (The translations are my own.)

The Hoge Raad began cautiously (para 3.2), noting

that the life sentence is not inherently contrary to the provisions of art. 3 of the ECHR, even if it is fully executed. From the jurisprudence [of the European Court of Human Rights] however, it follows that life imprisonment cannot be imposed if it is not already clear at the time of imposition that in due course there will be a real opportunity to reassess the life sentence, which in the appropriate cases can lead to the shortening of the sentence or (conditional) release. This does not mean that providing an opportunity for review of the sentence will always lead to a reduction of the penalty. Reassessment can indeed also lead to a finding that there is no ground for reducing the sentence.

The Hoge Raad then explained the various conditions it regarded as essential prerequisites for a review of a life sentence (para 3.3):

In the review, the question that needs to be addressed is whether there have been such changes on the part of the convicted person and whether he or she has made such progress in their resocialisation that the continued implementation of life imprisonment is no longer justified. The criteria used in this context should not be so stringent that release is allowed only when a serious illness or other physical obstacle stands in the way of the further implementation of life imprisonment, or upon reaching an advanced age. The review must be based on information with respect to the convicted person as an individual as well as the opportunities offered for resocialisation. Moreover, at the time of the imposition of a life sentence, it must be clear to the convicted person to a sufficiently precise extent what objective criteria will be applied in the review, so that he knows what requirements must be met, if he wants - eventually – to be considered for a reduction of his sentence or for (conditional) release.

The point of departure in the future must be that the review must take place after no more than 25 years after the imposition of life imprisonment and that after that period the possibility of periodical re-assessment is required. The reassessment shall be surrounded with sufficient procedural safeguards. The case law of the European Court of Human Rights does not require that a provision to curtail a life sentence can only consist of a statutory periodic review of the sentence by a judge. That does not detract from the view of the Hoge Raad that assigning the reassessment to a judge in itself represents an important guarantee that the implementation of life imprisonment will take place in accordance with Art. 3 of the ECHR.

Finally, in order to provide a real opportunity for reassessment, it is important that the convicted person during the execution of the life sentence - even before the reassessment takes place - must be able to prepare for a possible return to society and that, related to this, possibilities for resocialisation should be offered within the framework of the implementation.

The very basis of this decision is a rejection of official Dutch policy on the treatment of life-sentenced prisoners, for until now they have not been offered opportunities for resocialisation, because it had been presumed that they would never be released. The prison regimes for these prisoners will have to change.

The remedy that the Hoge Raad put forward is equally drastic. It ordered the Dutch government to legislate in order to reform the law relating to life imprisonment so that it would meet the standards it had spelled out. Such reforms have to be introduced by 5 September 2017. The Hoge Raad will remain seized with the case until then, when it will again consider the matter and decide whether the legislative reform meets the standards it has now set.

The decision of the Hoge Raad of 5 July 2016 is recognition that Dutch jurisprudence on life imprisonment must move forward to take account of the development in European human rights law that has led to a clear rejection of irreducible life sentences. It stands in contrast to the much more conservative approach of the English Court of Appeal, in R v Mcloughlin, which has insisted that English provisions that would allow life-sentenced prisoners, subject to a whole life order, to leave prison only when ill or dying are sufficiently flexible to be regarded as a form of release to meet the standards of Art. 3 of the ECHR. This interpretation of European standards by the Court of Appeal has been challenged before the Grand Chamber of the ECtHR in Hutchinson v the United Kingdom. Judgment in this last case, which was argued in October 2015, is keenly awaited. What remains to be seen is how the British authorities, including the UK courts, will respond if the ECtHR follows the trend that the Dutch Supreme Court has endorsed and rejects the interpretation of the Court of Appeal. The recent British referendum in favour of leaving the European Union does not affect the legal status of the United Kingdom as a party to the ECHR. However, there has been much press speculation that a decision against the United Kingdom in this latest case about irreducible life sentences may prompt a reconsideration of Britain’s relationship with the ECtHR and lead eventually to a formal withdrawal from its jurisdiction. The measured decision of the Hoge Raad on 5 July 2016 is an example of a less confrontational approach to European jurisprudence by a national apex court. One can only hope that the courts and indeed the government of the United Kingdom will learn from it.

July 8, 2016 at 01:33 AM | Permalink

Comments

"One can only hope that the courts and indeed the government of the United Kingdom will learn from it." Amen.

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