ŽERAJIĆ AND GOJKOVIĆ v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant in the first case, Ms Branka Žerajić, is a citizen of Bosnia and Herzegovina, who was born in 1946 and lives in Serbia. She was represented before the Court by Mr A. Zečević, a lawyer practising in Belgrade. The applicant in the second case, Ms Mira Gojković, is a citizen of Bosnia and Herzegovina, who was born in 1955 and also lives in Serbia. She was represented before the Court by Mr B. Ćupović.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 20-22 below).

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has thus far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 14 below). It became operational on 1 January 2008.

Mr Božidar Žerajić and Mr Radomir Gojković disappeared in an area of Sarajevo controlled by the ARBH forces on 24 July 1992 and 12 May 1992 respectively.

The ICTY has convicted six members of the ARBH forces for various crimes committed against Serbs during the war, including killings and cruel treatment at Čelebići and Kamenica camps (Zdravko Mucić, Hazim Delić, Esad Landžo, Enver Hadžihasanović, Amir Kubura and Rasim Delić), but none of the cases dealt with killings of Serbs in Sarajevo by those forces.

Domestic authorities have taken statements from a number of persons. However, no formal charges have been brought yet as the perpetrators in the case of Mr Žerajić have not been identified and the key suspects in the case of Mr Gojković were killed in 1992/93 (namely, S.S., S.K. and J.P). At the same time, domestic authorities have finalised investigations into other war crimes committed by the ARBH forces against Serbs in Sarajevo; indictments have so far been issued against S.B., M.F., I.Č., R. A. and I-N. V. and criminal proceedings are pending.

On 6 September 1999 Ms Žerajić sought and obtained a declaration of presumed death with respect to her husband.

While many exhumations have been conducted in the Sarajevo area, the applicants’ husbands have not yet been identified.

In the case of Ms Žerajić, on 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Federation of Bosnia and Herzegovina to release any and all information in its custody pertaining to the fate or whereabouts of Mr Žerajić as well as to conduct a full, meaningful, thorough and detailed investigation aimed at bringing the responsible to justice. Lastly, it awarded Ms Žerajić 5,000 convertible marks (BAM) for non-pecuniary damage. In the case of Ms Gojković, the Constitutional Court gave a similar decision on 13 September 2007. However, no damages were awarded.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 15 above).

Despite the fact that the verification process outlined in paragraph 18 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).

War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 21 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts.

In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts.

In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 21 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months.


CASE OF DAVID THOMAS v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1968 and is currently detained in HMP North Sea Camp.

On 8 January 2008 he was convicted of attempted kidnapping. He received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of one year and nineteen days was fixed.

In July 2008 it was identified that the applicant was required to complete the Controlling Anger and Learning to Manage it (“CALM”) course to reduce his risk.

On 12 December 2008 he was transferred to HMP Stocken in order to participate in the CALM course.

The applicant’s tariff expired on 26 January 2009.

In March 2009 he commenced the CALM course. He completed it on 28 May 2009.

On an unknown date he completed the Alcohol Awareness and assertiveness and decision-making courses.

On 17 February 2010 an oral hearing took place before the Parole Board to review the applicant’s detention. On 26 February 2010 the Parole Board notified him that it had decided not to order his transfer to open conditions or release. It concluded that his level of risk remained incompatible with his safe management in open conditions.

By letter dated 21 June 2010 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. His review period was set at eighteen months. The review was therefore scheduled to commence in February 2011 with an oral hearing by the Parole Board in August 2011.

In September 2010 a sentence plan review took place and identified a further course, the Sex Offenders Treatment Programme (“SOTP”), for completion by the applicant. He had failed to admit before September 2010 that there was potentially a sexual element to his offence. Prior to commencement of the SOTP, a Structured Assessment of Risk and Need (“SARN”) was to be conducted.

In October 2010 the applicant complained to the prison requesting information on when the SARN would take place. On 17 November 2010 he was informed that he would have to be transferred to another prison establishment for assessment because of resource issues.

On 17 December 2010 he was moved to HMP Acklington for assessment.

On 20 January 2011 his solicitors sent a letter before claim to the governor of HMP Acklington and the Secretary of State indicating that judicial review proceedings were being considered in respect of the delay in arranging the assessment for the SOTP.

On 25 January 2011 the applicant’s offender supervisor contacted a forensic psychologist in training in order to discuss the applicant’s case. They agreed that an initial SOTP assessment should be completed.

By letter dated 8 February 2011 the Ministry of Justice informed the applicant that the assessment of his suitability for the SOTP would be completed by the end of February 2011. He would then be placed on a waiting list for the appropriate course.

The SOTP assessment was completed on 6 April 2011 and concluded that the applicant was motivated to engage in sex offender treatment.

On 7 April 2011 the forensic psychologist in training sought clinical guidance on the applicant’s case from the Operational Services Intervention Group (OSIG”). The OSIG decided that a Risk Matrix 2000 (“RM2000”) was required as well as a Treatment Needs Analysis (“TNA”) to assess the level of dynamic risk posed by the applicant.

On 23 June 2011 a forensic psychologist in training interviewed the applicant and told him that he had been referred for a TNA and RM2000. The applicant was informed that his case would be progressed over the next three months.

On 30 July 2011 the Parole Board reviewed the applicant’s case on the papers. By letter dated 18 August 2011 it informed him that it had not directed his release or recommended his transfer to open conditions. It explained:

“The panel is satisfied that until you have undertaken the offending behaviour work that will be identified by the forthcoming assessments and ... a full assessment has been completed of your response to treatment it will be difficult to conclude that you have addressed the core factors that caused you to offend.”

On 31 August 2011 the TNA was completed.

By letter dated 28 September 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that risk factors, namely sexual offending, thinking skills and behaviour and alcohol misuse, were outstanding. The letter clarified that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources.

The applicant’s next review was set to commence in August 2012 and be completed by April 2013. The review period was made up of, inter alia, appropriate assessments, completion of sexual offender behaviour work, participation in the post-course review and the preparation of the SARN report.

At some point he was transferred to HMP Northumberland.

On 9 November 2011 he was told by prison staff that he was on a list of prisoners being considered for the next SOTP.

On 24 November 2011 the TNA and Treatment Pathway reports were completed. The applicant was deemed suitable for the SOTP. The reports were disclosed to him on 2 December 2011.

On 22 December 2011 his solicitors wrote to the governor of HMP Northumberland requesting that immediate steps be taken to place the applicant on the next SOTP. They expressed the view that there had been no progress since the April 2011 assessment.

On 3 May 2012 the applicant commenced the SOTP. He completed the course in November 2012.

A new target date of June 2013 was set to assess whether an oral Parole Board hearing ought to be held in his case. The outcome of the review is not known

A SARN report was produced on 3 April 2013.

On 4 October 2013 the Secretary of State accepted the applicant’s request for an exceptional transfer to open conditions. He was transferred on 5 November 2013.


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants, Mr A and Ms B, are a married couple and currently living in the Netherlands. They are Mongolian nationals and were born in 1980 and 1978, respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Ms J. Bravo Mougán, a lawyer practising in Amsterdam.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

On 1 May 2009 the applicants and their daughter, born in 2001, fled Mongolia. On 11 May 2009 they entered the Netherlands and applied for asylum, claiming to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). The next month a second child was born to the applicants.

On 5 August 2009 the immigration authorities held a first interview (eerste gehoor) with each applicant about their identity, nationality and travel itinerary. A written record of each interview was drawn up. The applicants, who were assisted by a lawyer, were given the opportunity to submit corrections and additions, which they did on 6 August 2009.

On 7 August 2009, the immigration authorities held a further interview (nader gehoor) with each applicant about their reasons for seeking asylum. A written record of each interview was drawn up and on 21 September 2009 a lawyer submitted corrections and additions on the applicants’ behalf.

In his asylum statement, the first applicant declared that he was a former Buddhist monk (“lhama”). His only relative was a foster parent who had died in 1998. After his marriage to the second applicant he had resigned as a monk and started to work as a spiritual counsellor. Among his clients were Mr X, a prominent political and government leader, Mr Y, a former business associate of X, and Mr Z, a judge. By the end of June 2008, the first applicant had received a 3-4 page letter from Y who had been placed in pre-trial detention. In this letter Y wrote that he was innocent and wrongly imprisoned and that he had been falsely accused by X. The letter further contained incriminating information about X who was allegedly involved in corruption. The first applicant had not discussed this information with anyone. Soon after, the first applicant had received several threatening telephone calls from accomplices of X. They told him that they knew that he had received the letter, that he knew too much and that he should keep his mouth shut. They also ordered him to give them his clients’ records. The second applicant also received threatening calls. On 10 July 2008 the first applicant learned that Y had died in prison.

On 2 or 3 August 2008 the first applicant, whilst walking upstairs to his apartment, had been assaulted by two unknown men in the stairwell of the building. The two men had demanded the letter and the records the first applicant had kept on his clients. When a neighbour had appeared, the two men had run off. As requested by Y, the first applicant had taken the letter to Z who had advised him not to go to the police as X had more power than the police. Being a judge, Z. would deal with the matter himself. According to the first applicant, Y had written the letter to the first applicant and not directly to Z because he had known the first applicant very well and had trusted him.

As the applicants had no longer felt safe at home, the first applicant had asked one of his other clients to shelter him and his family. This client had done so as from September 2008 and sheltered the applicants in a town near to Ulaanbaatar. Although the first applicant had changed his telephone number, he continued to receive threatening phone calls.

On 26 October 2008, whilst travelling for business by car to Dorngovi, the first applicant had a car accident. One of the front wheels of his car had broken off, causing the car to roll over twice. His co-driver had been thrown out of the car and the applicant, who had been driving the car, had lost consciousness. The traffic police drew up a report and left. A friend took them and the car back to Ulaanbaatar. When the first applicant reported the accident to the police as requested by the latter, he was told that the accident had been caused by him driving too fast. According to the first applicant this was untrue as he had driven at a normal speed. The first applicant had taken the police report to Z who – like the first applicant – had found it rather odd and would look into it.

On 1 February 2009 Z’s wife had called the first applicant and told him that Z had suddenly died of food poisoning. The first applicant had not believed this and suspected murder. Now fearing for his family and himself, he had started to make preparations to leave Mongolia which he and his family had done on 1 May 2009. With the aid of a “travel agent” to whom they had given their identity documents the applicant, his wife and their daughter had travelled first by train to Moscow and later by car to the Netherlands. This travel agent had not returned their identity documents.

The asylum statement of the second applicant, who had also applied for asylum on behalf of the couple’s two young children, was based on the asylum statement given by the first applicant. She also stated that her mother and brother were living in Mongolia. Her father had died in 2008.

On 1 December 2009 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the first applicant’s asylum application. On 2 December 2009 the Deputy Minister issued the same notice to the second applicant.

The Deputy Minister considered at the outset that the applicants’ failure to substantiate in a sufficient manner their stated identity, nationality and travel itinerary as well as their failure to give a detailed, coherent and verifiable account of their journey to the Netherlands cast doubt on the sincerity of their asylum claim and detracted from the credibility of their asylum statement. As to the question whether the applicants’ asylum statement should nevertheless be accepted as positively persuasive (positieve overtuigingskracht), the Deputy Minister found that the events as described by the first applicant were credible, i.e. the receipt of the letter, the threatening telephone calls and having been assaulted once in the stairwell of the building where he used to live. Noting, inter alia, that the name of X had never been mentioned in the phone calls or by the men who had assaulted the first applicant, the Deputy Minister found that it could not be established that these acts were carried out by accomplices of X and in his name. The Deputy Minister further found that the applicants could and should have reported the threatening telephone calls and the assault in the stairwell to the Mongolian authorities and that it had not been demonstrated that these authorities would be incapable of providing protection.

On 23 December 2009, assisted by a lawyer, the applicants submitted written comments (zienswijze) on the notice of intent sent to both applicants.

On 21 January 2010, in two separate decisions and referring to the above notices, the Deputy Minister rejected the applicants’ asylum applications, finding that they had failed to dispel the doubts about the credibility of their asylum statement. The Deputy Minister maintained that the applicants had failed to substantiate their claim that X was corrupt. The fact that government corruption occurred in Mongolia did not mean that X was personally corrupt as well. The Deputy Minister also maintained that the applicants had failed to establish that X was responsible for the events described by them. These acts could equally have been carried out by accomplices of other powerful men. The Deputy Minister also did not find it demonstrated that the applicants would run a risk of treatment contrary to Article 3 of the Convention if they were expelled to Mongolia.

In its judgment of 13 January 2011 the Regional Court (rechtbank) of The Hague sitting in Assen accepted the applicants’ appeal, quashed the impugned decisions of 21 January 2010, and ordered a fresh determination of the applicants’ asylum claim. It accepted the Deputy Minister’s findings in respect of the absence of any identity documents and the failure to give a detailed, coherent and verifiable account of their journey to the Netherlands, as well as the Deputy Minister’s conclusion that it was not credible that the death of Y and Z and the first applicant’s car accident resulted from intentional acts instructed by X or committed in his name. However, the Deputy Minister had given insufficient reasons for finding that the applicants’ suspicion that there was a connection between X and the threatening telephone calls received by the applicants and the first applicant’s assault in the stairwell lacked positive persuasiveness as both the threats and the assault were connected to the letter which the applicant had received from Y. This was not altered by the fact that it did not appear from general sources that X was involved in corruption or other illegal practices, when taking into account X’s interest in keeping the content of the letter written by Y quiet given that – according to the official report (ambtsbericht) on Mongolia of January 2010 as compiled by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) – the great discontent in the Mongolian population over the widespread poverty in the country and the corruption in government circles had probably worked to the advantage of X who had campaigned with promises of change and of combatting corruption and income inequality.

On 7 February 2011, the Minister for Immigration and Asylum (Minister voor Immigratie en Asiel), the successor to the Deputy Minister of Justice, filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing essentially that it was for the Minister to assess the credibility of the facts submitted by an asylum-seeker and that the courts could only examine that assessment with due reticence (terughoudend). Referring to the Division’s case law, the Minister submitted that the Regional Court had overstepped its competence. Pursuant to the system of asylum proceedings, in appeal proceedings the Regional Court should only have determined whether the administrative authority concerned (i.e. the Minister) had exercised its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision (marginale toetsing). In this case however, the Regional Court had made its own findings of fact, substituting them for the findings made by the Minister.

On 18 August 2011 the Administrative Jurisdiction Division accepted the Minister’s further appeal, quashed the impugned judgment of 13 January 2011 and rejected the applicants’ appeal. It held that, instead of examining whether the Minister could not reasonably have reached the conclusions as to the credibility of the applicants’ asylum statement, the Regional Court had wrongly drawn its own separate conclusions in relation to various parts of the asylum statement. It therefore quashed the judgment of the Regional Court and substituted it with its own decision on the appeal, holding that the Minister could reasonably have concluded that the applicants’ stories lacked positive persuasiveness. Accordingly, the applicants had not established that their removal to Mongolia would expose them to a real and personal risk of being subjected to treatment in violation of Article 3 of the Convention. No further appeal lay against this decision.

On 16 September 2013 the Government informed the Court that the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) were taking action for the applicants’ removal to Mongolia by presenting them to the Mongolian authorities.

On 22 February 2016 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should be invited to submit further observations dealing specifically with aspects of the applicants’ effective removal to Mongolia.

In their reply of 15 March 2016, the Government informed the Court that the removal of rejected asylum-seekers to Mongolia is only possible when they hold a valid travel document. The Government further stated that they had applied for a laissez-passer on behalf of the applicants at the Embassy of Mongolia where the applicants had been presented in person in August 2015. The applications had been taken into consideration by the authorities of Mongolia. The Netherlands authorities are still awaiting the response and have been sending reminders to the Embassy of Mongolia once or twice every month, the most recent one having been sent on 14 March 2016.

In their reply of 30 March 2016, the applicants confirmed that they had been presented to the Mongolian authorities. They further stated that their nationality had been officially confirmed and that the request for a travel document (laissez-passer) was still pending. They could and would be removed to Mongolia as soon as these documents were issued.

The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-28, 25 September 2012).


Preliminary objections dismissed (Article 34 - Locus standi;Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alvina Gyulumyan;András Sajó;André Potocki;Angelika Nußberger;Corneliu Bîrsan;Dean Spielmann;Erik Møse;Ganna Yudkivska;Guido Raimondi;Ján Šikuta;Jean-Paul Costa;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Nebojša Vučinić;Nona Tsotsoria;Paul Mahoney;Paulo Pinto De Albuquerque

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.

At the time the applicant was convicted and sentenced, the Kingdom of the Netherlands consisted of the Netherlands (the Realm in Europe) and the Netherlands Antilles (consisting of the islands Aruba, Bonaire, Curaçao, Sint Maarten, Sint Eustatius and Saba). On the Netherlands Antilles, the Head of State of the Kingdom (the Queen, at that time) was represented by a Governor. In 1986 Aruba became an autonomous “country” (land) within the Kingdom, having its own 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 (i.e. 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.

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

The Joint Court of Justice of the Netherlands Antilles, which imposed the life sentence on the applicant in 1980, became the Joint Court of Justice of the Netherlands Antilles and Aruba in 1986, and is currently called the Joint Court of Justice of Aruba, Curaçao, Sint Maarten and of Bonaire, Sint Eustatius and Saba. For ease of reference it will hereafter generally be referred to as “the Joint Court of Justice”.

On 31 October 1979 the First Instance Court (Gerecht in Eerste Aanleg) of the Netherlands Antilles found the applicant guilty of the murder of a six-year-old girl on the island of Curaçao. The judgment of the First Instance Court included a summary of a psychiatric report that had been drawn up at the request of the public prosecutor (Officier van Justitie). The conclusion reached by the psychiatrist was summarised as follows in the judgment (the conclusion and advice contained in the psychiatrist’s report are set out in full in paragraph 33 below):

“... That the defendant suffers from a pathological disturbance, in particular a very limited development of his mental faculties ... Considering this, the defendant should be regarded as having diminished criminal responsibility (verminderd toerekeningsvatbaar), but nevertheless should mainly be held criminally liable for his actions. It is noted in particular that the defendant cannot be considered to have been mentally insane before, during or after the commission of the crime ... Even though the defendant is capable of committing a similar offence in the future, it is not necessary to commit him to a regular mental hospital (krankzinnigengesticht), but instead he should be placed in a custodial clinic for psychopaths (psychopatenasiel) to undergo a rather lengthy treatment under very strict surveillance. In Curaçao there is a choice only between prison and the national (regular) mental hospital (Landspsychiatrisch Ziekenhuis). Taking into consideration that the risk of recidivism is for the time being very high, even if treatment would possibly start immediately, and that, consequently, intensive surveillance is of primordial importance (such surveillance being impossible in the national mental hospital), and the fact that the defendant is not to be considered criminally insane within the meaning of the law, admission to the national mental hospital is wholly contra-indicated. The sole option remaining is for him to undergo his punishment in prison (transfer to a custodial clinic in the Netherlands is impossible on account of the defendant’s limited intelligence and insufficient ability to express himself verbally). It is strongly advised that, where possible in the prison setting, an attempt should be made to attain a stronger personality structure in the defendant in order to avoid recidivism in the future.”

The First Instance Court considered that a life sentence, the imposition of which had been sought by the Public Prosecutor, would only be condign punishment if it was established from the outset that the applicant’s condition was not amenable to improvement. As the court found that this could not be deduced from the psychiatrist’s report, it sentenced the applicant to twenty years’ imprisonment.

Both the applicant and the Public Prosecution Service (Openbaar Ministerie) submitted an appeal against the judgment of the First Instance Court.

On 11 March 1980 the Joint Court of Justice of the Netherlands Antilles quashed the judgment of the First Instance Court. It convicted the applicant of murder, finding it proven that he had deliberately and with premeditation taken the life of the six-year-old girl. It held that he had conceived the intention and taken the decision to kill her after calm consideration and quiet deliberation, and in order to execute that intention, had stabbed her repeatedly with a knife, as a result of which she had died. The applicant had killed the child, who was the niece of an ex-girlfriend, in revenge for the latter’s ending of their relationship. The Joint Court of Justice sentenced the applicant to life imprisonment. In this connection it cited part of the psychiatrist’s report as summarised in the judgment of the First Instance Court (see paragraph 12 above) and furthermore held, inter alia, as follows:

“Considering that in view of the findings of the psychiatrist, which the court accepts and adopts as its own, and in particular the fact that the risk of recidivism is very significant, the interest of society in being protected against any such recidivism should, in the opinion of the court, carry the most weight, having regard to the personality of the accused;

Considering that − however regrettable − there is no possibility in the Netherlands Antilles for the imposition of a TBS order (terbeschikkingstelling met bevel tot verpleging van overheidswege) for confinement in a custodial clinic, which would be the most appropriate measure in this case; that placement in a custodial clinic in the Netherlands in similar cases has in the past proved impracticable – as is known to the court ex officio – and is in the present case moreover considered impossible by the psychiatrist due to the accused’s limited intelligence and insufficient ability to express himself verbally;

Considering that in the present case there is no way in which the aforementioned preponderant interest can adequately be protected in these lands other than through the imposition of a penalty which will prevent the accused’s return to society, and thus that only a sentence of life imprisonment qualifies as suitable;

Considering that the court is aware that this sentence does not – in principle – provide the accused with any prospect of one day returning to society as a free man, a fact which will presumably make this sentence heavier to bear for the accused than a temporary sentence of imprisonment, but which in the court’s opinion should not lead to the aforementioned interests, which, as set out above, should carry the most weight, being sacrificed;

... sentences the accused to imprisonment for life;

On 25 November 1980 the Supreme Court (Hoge Raad) dismissed the applicant’s appeal in cassation against the judgment of the Joint Court of Justice.

On 24 November 1981 the applicant filed a request for revision with the Joint Court of Justice which was rejected on 6 April 1982.

The applicant served the first nineteen years of his sentence in the Koraal Specht prison (which was subsequently renamed Bon Futuro and is currently called Sentro di Dentenshon e Korrekshon Korsou or SDKK) in Curaçao. This prison has, since 1990, accommodated a special unit for prisoners showing signs of mental illness or serious behavioural disorders, the so-called Forensic Observations and Counselling Unit (Forensische Observatie en Begeleidings Afdeling – “FOBA”). The FOBA comprises two separate sections, one for observation and one for treatment. Although the applicant submitted that he had spent some time in the observation section, the Government stated during the hearing before the Grand Chamber on 14 January 2015 that while he was detained in Curaçao the applicant had not been placed in either unit.

The applicant’s first thirteen years in prison were marked by incidents: fights, extortion, drug abuse, etc., some of which led to periods spent in solitary confinement.

On 1 December 1999 the applicant was transferred to the Korrektie Instituut Aruba (“KIA” – also referred to as the Instituto Coreccional Nacional or “ICN”) in Aruba, having repeatedly requested such a transfer from 1985 onwards, in order to be closer to his family. At the same time the responsibility for the execution of the applicant’s sentence was transferred from the authorities of the Netherlands Antilles to those of Aruba. By agreement of 1 December 1999 the Minister of Justice of Curaçao, however, made the transfer conditional, stipulating that any measure (e.g. pardon, reduction of sentence, temporary leave) involving the applicant’s release from prison would be subject to the consent of the Curaçao Public Prosecution Service.

In the course of his incarceration the applicant unsuccessfully petitioned for a pardon on a considerable number of occasions; the exact number cannot be ascertained since the files are no longer complete owing to the lapse of time. From the information and documents contained in the Court’s case file, the following events can be established.

In a letter of 26 April 1982 the applicant requested that the Minister of Justice of Curaçao review his life sentence and give him some kind of relief. He submitted that the prison where he was being detained offered no educational or vocational programme capable of benefitting his personal and mental development, whereas the frustration and disappointment of being isolated and neglected was creating mental anguish that would surely drive him to the brink of mental illness. This request was rejected by the Governor of the Netherlands Antilles on 9 August 1982 for the reason that there were no grounds on which to grant it.

A request lodged on an unknown date was rejected on 29 November 1983. It appears that the applicant also lodged requests on 6 June 1990, 11 April 1994 and 17 May 1996 but no further information has been provided about them.

The case file contains a number of documents (hereinafter called “consultation sheets”) on which each of the three judges, who were consulted before the Joint Court of Justice issued its advice to the Governor on a particular application for pardon, could write their opinion about that application. One of the judges consulted about the applicant’s request for a pardon of 31 July 1997 wrote as follows in October 1997:

“... It can be deduced from the psychiatric report in the file that the risk of recidivism was deemed great. The psychiatrist considered that treatment of the petitioner in prison was indicated, but nothing has of course come of this. I still find that it would be irresponsible to grant a pardon to the petitioner, who has in the meantime reached the age of 44. ...”

A second judge wrote on the consultation sheet that he agreed with his colleague, and that a new psychiatric report might be requested, which could also be important for the future in order to be able to monitor the applicant’s development and in due course perhaps advise positively on a request for a pardon.

In a letter of 22 October 1997 the Joint Court of Justice advised the Governor not to grant a pardon, writing, in so far as relevant, as follows:

“... It appears from the psychiatric report in the file that the petitioner has very inadequately developed mental faculties ... In said psychiatric report it is concluded that the petitioner is certainly capable of committing the same offence or of disrupting public order in a different way. The court notes that the petitioner has not undergone any (psychiatric) treatment in prison aimed at strengthening his personality structure in order to prevent him reoffending in the future.

As the crime committed by the petitioner shocked the legal order so profoundly, the granting of a pardon would not be understood by the community, not even after such a long time.

Having regard to the foregoing the court is of the view that for the time being it would be irresponsible to pardon the now 44-year-old petitioner.

The Public Prosecutor Service has attempted, so far in vain, to bring about the petitioner’s transfer to the KIA in Aruba, in accordance with his wishes, in view of the fact that he has relatives living there. This wish of the petitioner ought now to be acted upon. The court therefore supports this reasonable desire of the petitioner.”

The request for a pardon was refused on 20 November 1997.

On 30 January 2002 the Acting Governor of the Netherlands Antilles rejected the applicant’s request of (probably) 14 August 2001 to reduce his sentence by means of a pardon, considering that no facts or circumstances justifying such a course of action had either been adduced or become apparent.

On 26 January 2004 the Advocate General of the Netherlands Antilles wrote, in so far as relevant, as follows to the Joint Court of Justice in relation to the applicant’s request for a pardon lodged on 27 October 2003:

“... The opinion of the Public Prosecution Service is unchanged. Prior to committing the offence at issue the suspect [sic] had been convicted of raping a young girl and sentenced to imprisonment. That sentence did not have a preventative effect on the petitioner. The petitioner was extensively examined in relation to the offence at issue and the extensive report explicitly mentions the risk of recidivism. It does not appear that the circumstances have changed.

... The granting of a pardon on humanitarian grounds will, even if such reasons can be said to exist (quod non), not be understood by society nor, in my view, be accepted. Humanitarian grounds may be said to have been the basis for the transfer to the KIA. As far as I am concerned that is sufficient.”

One of the judges of the Joint Court of Justice, while subscribing to the negative advice given by the Advocate General, wrote on the consultation sheet:

“At some point in time a moment will however arrive when mercy comes before law. That moment has not been reached yet, but it may do in ten or twenty years.”

The Joint Court of Justice advised that the applicant’s request be refused on the grounds indicated in the advice of the Advocate General of 26 January 2004.

The Procurator General, in a letter to the Joint Court of Justice of 5 August 2004, recommended that that court issue negative advice on the application for a pardon lodged by the applicant on 17 June 2004. He wrote, in so far as relevant, as follows:

“... Having regard to the content of his request for a pardon together with the interview with him that was recently broadcast on television, the petitioner obviously still does not, in my opinion, realise the gravity of the diabolical act committed by him on 23 May 1979. ...

In the interview ... Murray also had the nerve to play down his heinous crime by saying that others who had already been released had committed more serious offences. ...

The petitioner has never – either at the trial, on the delivery of the verdict, or in the aforementioned interview – shown remorse. ...

Murray claims that he has behaved like a model prisoner in the course of the past twenty-two years. Nothing could be further from the truth; in any event, not as regards the period of detention spent in prison here [i.e. in Curaçao]. During those years the petitioner has misbehaved numerous times, inter alia by issuing threats, committing thefts, fighting with fellow inmates, committing indecent acts with third parties, and attempting to poison a fellow inmate. ...

Although he may lately have displayed good behaviour, this does not detract from the fact that the consequences of his demonic deed can never be redressed, while it has appeared, also in view of the recent reactions in our community, that society remains deeply shocked. Our society cannot afford to take any risks with such a murderous psychopath. In order for our community’s interests to be adequately protected, the return of the petitioner to that community is to be prevented. In my opinion it cannot be excluded that this solidly built 51-year-old man, with his serious criminal behaviour ..., and currently in the prime of his life, will once again reoffend.

The above-mentioned interview as well as the fact that he (even though he is entitled to do so) has once again seen fit to lodge a request for a pardon for the umpteenth time has caused great commotion in our society. Anxious civilians, also including relatives of the victim, have fiercely protested in the media against a possible pardon. ...

The opinion, voiced occasionally, that a life sentence in practice boils down to a sentence of between twenty and twenty-five years is not based on the Criminal Code and does not find support in law either. The Antillean legislator has also never intended for this to be the case. ...”

The request for a pardon was rejected by the Governor on 1 March 2006 for the reason that no facts or circumstances justifying a pardon had either been adduced or become apparent.

In a letter of 28 September 2007 the Joint Court of Justice advised the Governor to reject a request for a pardon lodged by the applicant as there was no appearance of any circumstance which the trial court had failed or had been unable to take (sufficiently) into account at the time of its decision and which, had the court been sufficiently aware of it, would have caused it to impose a different sentence or to refrain from imposing any sentence. Neither had it become plausible that the execution of the trial court’s decision or its continuation did not reasonably serve any of the aims pursued through the application of the criminal law.

The petition for pardon to which this advice of the Joint Court of Justice related was rejected by the Governor, on the grounds set out in that advice, on 16 January 2008.

In January 2011 the three judges consulted about a request for a pardon submitted by the applicant on 31 August 2010 wrote on the consultation sheet, respectively, “no grounds present”, “reject” and “reject”.

On 29 August 2013 the applicant requested a pardon in view of his deteriorating health. The head of the social work department of the prison in Aruba advised that a pardon be granted, as this would allow the applicant to die in a dignified manner in the presence of his family. By a decision of 31 March 2014 the Governor of Curaçao acceded to this request and granted the applicant a pardon (see also paragraph 8 above), entailing the remission of his prison sentence, as in the circumstances the further execution of that sentence was no longer deemed to serve a useful purpose.

On 21 September 2012 the Joint Court of Justice, having submitted the applicant’s life sentence to the periodic review prescribed by Article 1:30 of the Curaçao Criminal Code, which had entered into force on 15 November 2011 (see paragraphs 55-56 below), decided that the applicant’s custodial sentence still served a reasonable purpose after thirty-three years.

The decision of the Joint Court of Justice firstly sets out the proceedings which took place before that court: hearings had taken place on 10 May and 6 September 2012, at which the applicant, who was represented by counsel, was heard. A member of staff of the prison in Aruba was also heard, as were the psychologist M.V., the psychiatrist G.E.M. and relatives of the victim and their representative. The decision cites relevant parts of the sentencing court’s judgment of 11 March 1980 and summarises the findings contained in the reports drawn up about the applicant for the purpose of the periodic review (see paragraphs 36-42 below). A section entitled “The position of the relatives of the victim” reads as follows:

“The relatives indicated at the hearing that they did not agree with a possible release of the convicted person. They stated that news of a possible release had reopened old wounds, that they were experiencing the psychological consequences of this, and that they were afraid of the convicted person. He has threatened them in the past and they have not observed any feelings of remorse or regret in him.

The relatives’ representative submitted that the risk of recidivism was unacceptable for them.

In a report drawn up by the Curaçao Foundation for Probation and Social Rehabilitation of 10 May 2012 the Rapporteur addresses the position of the relatives. The Rapporteur notes in the first place that the relatives have so far barely been provided with psychological help or with support in coming to terms with their bereavement. He concludes that the victim’s mother still appears to struggle with issues she has not dealt with and about which she barely speaks, and that the father requires professional help in order to cope with his feelings. The relatives have told the Rapporteur that they feel insecure at the mere thought of the convicted person being released. They have further indicated that ever since the arrest of the convicted person and until the present time they have been ‘living in a prison’ and that this has also had adverse repercussions on their other children. The Foundation for Probation and Social Rehabilitation concludes that a possible conditional release of the convicted person would at this stage have far-reaching psychological consequences for the relatives.”

The decision goes on to observe that, in the acting Procurator General’s submission, there was not a single objective indication from which it could be inferred that the risk of the applicant’s committing an offence had disappeared or diminished, that an early release would seriously shock the surviving relatives, and that it would also shock society to such an extent that this would hinder the applicant’s possible reintegration. After describing the position put forward on behalf of the applicant, the Joint Court then came to its assessment, which, in so far as relevant, reads as follows:

8.2 The convicted person’s deprivation of liberty has at present lasted considerably more than twenty years, namely over thirty-three years. The court must therefore assess whether the further unconditional execution of the life sentence no longer serves a reasonable purpose.

8.3 It follows from the reasons given by the [sentencing] court for the imposition of the life sentence ... that the aim of this sentence was to protect society against recidivism by the convicted person. The risk of recidivism was deemed by the [sentencing] court to be particularly high, while treatment was not considered possible.

8.4 The court will therefore first and foremost have to assess to what extent the risk of recidivism existing at the time is still present today. In this connection it is firstly to be noted that at the time that risk was deemed to be particularly high in view of the personality of the convicted person, and that since then no treatment in any shape or form has taken place.

8.5 After the court had commissioned two experts at its hearing of 10 May 2012, psychologist M.V. and psychiatrist G.E.M. reported on the convicted person’s personality and the risk of recidivism. Unlike the defence, the court is of the view that both the examination carried out and the report drawn up by the psychologist are of adequate quality and expertise. ...

8.6 It appears from the ... findings of both experts that the convicted person is still suffering from a disorder, namely an antisocial personality disorder. The court deduces from the findings that this disorder has a negative bearing on the risk of recidivism and hampers possible reintegration into society. The court further considers that the nature of the offence committed by the convicted person – the killing of a six-year-old girl for the sole purpose of hurting her aunt, his former girlfriend – is bizarre and, as was concluded at the time, must be attributed to the psychopathically disturbed personality of the convicted person. The court notes that important aspects of that disturbed personality, such as the antisocial personality, the limited development of his conscience and the lack of empathy, are currently still present. No treatment has taken place during the period of detention. It is furthermore not the case, as would be customary within the framework of treatment, that the circumstances which led him to his deed have been discussed with him so that he might subsequently have acquired an insight into how to avoid or defy such circumstances. In the case of the convicted person it would have been expected that in the course of such discussions his relationship with women and the question of dealing with rejection would have been addressed. As already mentioned, no such discussions or treatment have taken place. Also, at the hearing the convicted person did not demonstrate that he was capable of holding himself to account for the seriousness and absurdity of the murder or of understanding how he was able to commit it.

8.7 The foregoing leads the court to conclude that the risk of the convicted person’s reoffending if he were released is such that the protection of society should prevail. This is not altered by the fact that the convicted person has been functioning well and without problems in prison in recent years. After all, and just as the experts have pointed out, prison life is very structured and circumstances such as those under which the convicted person committed his crime are absent there. Such circumstances may occur outside the prison and – having regard to the aforementioned personality and the fact that no treatment has taken place – the court considers the risk of the convicted person’s reoffending if confronted with such circumstances to be too great.

8.8 The court further takes the position of the victim’s relatives into account. It has been sufficiently established that conditional release would at the present time entail adverse psychological consequences for them. The court observes in this connection that over the years the relatives have also not been provided with adequate support to help them come to terms with their grief or, if necessary, with treatment for their psychological problems. It is therefore easily understandable that they are very shocked now that the possibility of the convicted person’s conditional release is being considered for the first time. In this context the court attaches relevance to the fact that after he committed his crime the convicted person threatened to harm the relatives and in this way contributed to their sense of insecurity. The convicted person has not demonstrated that he has any insight into the consequences of his deed or his subsequent actions.

8.9 On the basis of the foregoing, the court is of the opinion that the continued execution of the life sentence still serves a reasonable purpose. The court will accordingly not proceed to order the conditional release of the convicted person.

8.10 Having regard to the foregoing the court also perceives no cause to adjourn its examination pending further investigations, as requested by the defence as an alternative course of action.

8.11 The court adds that it is aware of the fact that its considerations as set out under points 8.6 and 8.7 would appear to offer little prospect of release in the future, as this would imperatively require that in the coming period some form of treatment should take place in which, in any event, aspects such as crime analysis, relationships and rejection would need to be addressed. Perhaps such treatment can be organised in some way in the [prison in Aruba]. The court further considers that the position of the relatives may also be different at the time of a subsequent review if they continue to receive the necessary support in dealing with their feelings of mourning, anger and fear.

8.12 The court finally notes that it has also had regard to the commotion which the possibility of a conditional release has caused in society and which has appeared from the submitted newspaper articles and the considerable public interest. A large part of the community perhaps thinks that the perpetrator of a crime such as the murder of [the victim] should never be allowed to regain his liberty. In the court’s examination this has not, however, played a decisive role. After all, society’s need for retribution should be considered to have been sufficiently assuaged after a period of detention of more than thirty-three years. As noted above, the aim of the continuation of that sentence is currently no longer retribution but the protection of society against possible recidivism.

The decision

The court:

does not proceed to order the convicted person’s – conditional – release.”

In the course of the criminal proceedings against him and at the request of the public prosecutor, the applicant was examined by psychiatrist J.N.S. in order to assess whether he could be held criminally responsible for the offence with which he was charged. The psychiatrist produced a 27page report on 11 October 1979. The First Instance Court’s judgment of 31 October 1979 includes a summary of the conclusion and advice contained in that report (see paragraph 12 above). The conclusion and advice as set out in the psychiatrist’s report, reads, in so far as relevant, as follows:

“Conclusion: In view of the above the Rapporteur reaches the following structure diagnosis: Serious criminal behaviour in the shape of a murder committed as a result of a primitive and primary outburst of emotions, by a retarded, infantile and narcissistic young man whose character structure has a serious disturbance of a psychopathiform nature.

Advice: The Rapporteur should wish to present his advice on the basis of the following questions:

Is the accused suffering from a pathological disturbance and/or an inadequate development of his mental faculties?

Reply: Yes, he certainly is, and in particular from a very inadequate development of his mental faculties.

Was this disturbance and/or inadequacy already present at the time of the offences with which he is charged?

Reply: The inadequate development in particular has been present all his life, and therefore also at the time of the offences with which he is charged, although it may be said that everything had accelerated rapidly at that time.

If so, was this the case to such an extent that the accused, were he to be found guilty of the offences, should generally be considered, in the current state of Netherlands Antillean society, as not responsible for them or only to a greater or lesser extent?

Reply: The Rapporteur would wish to conclude that the accused, having regard to the replies under 1. and 2., should be considered as having diminished criminal responsibility, but he nevertheless still considers that the accused is for the most part responsible for the acts, if they are found proven, which he has committed. The Rapporteur should especially wish to conclude that he would not call the accused insane, either before, during or after the offence; ... the accused has never withdrawn into a bizarre and mad world of his own but has always lived in a primitive, primary sensory world and he has succeeded, whenever his existence was not under stress, to participate in society to a reasonable extent.

At the time of the offences, did he have the insight to realise that committing them was morally reprehensible and would not be tolerated by society?

Reply: According to the Rapporteur he must have had such insight, but he subsequently completely suppressed and replaced it by a fantasy in view of the threat of destruction of his own personality structure.

If he did have such insight, would he have been capable of determining his will and his actions accordingly?

Reply: See the reply to question 4. Also partly because of that, the Rapporteur has reached a conclusion of diminished criminal responsibility.

Can it be expected that the accused might commit the same offence again or disrupt public order in a different manner?

Reply: Having regard to what has been written and concluded above, the accused is certainly capable of committing a similar act or of causing a different disruption of public order.

Does his mental state require that the accused be committed to a lunatic asylum?

Reply: In view of the reply to question 3 it may be said that this is not necessary.

What practical guidelines can you give and/or what proposals that are feasible in present-day society can you make in order to improve or bring about a recovery and/or a better development of the accused?

Reply: In view of the replies under 1, 2, 3, 6 and 7 my advice would be that the accused should be committed to a mental asylum where, certainly, during a fairly long period institutional treatment under very strict surveillance ought to take place. On Curaçao we have the choice only between prison and the national psychiatric hospital. Taking into consideration that for the time being the risk of recidivism is very great, even if treatment were to be commenced immediately, and that intensive surveillance is consequently of primordial importance (such surveillance being impossible in the national psychiatric hospital!) as well as the fact that the accused is not to be considered insane within the meaning of the law, admission to the national psychiatric hospital is wholly contra-indicated. The sole option remaining is for the accused, should he be found guilty of the offences with which he has been charged, to undergo his sentence in prison (a transfer to, for example, a mental asylum in the Netherlands is in my opinion not possible because of the accused’s limited intelligence and insufficient ability to express himself verbally). The Rapporteur strongly advises that, if possible, attempts should be made in the prison setting to attain a stronger personality structure in order to avoid recidivism in the future.”

On 6 September 1991 psychiatrist Dr M. de O. wrote to the Curaçao Procurator General in relation to the applicant’s wish to be transferred to Aruba. She stated that the applicant had been placed under psychiatric observation upon his arrival in the remand centre in Curaçao and that good contact of a therapeutic nature had been established with a view to his rehabilitation. The psychiatrist expressed her opinion that from a psychological point of view a transfer to Aruba would benefit the applicant’s rehabilitation.

This psychiatric report was drawn up by P.N. van H. at the request of the Advocate General of Curaçao in relation to the applicant’s request to be transferred to Aruba. The psychiatrist found that the applicant was not suffering from any psychosis, depression or anxiety, but that he did have a serious narcissistic personality disorder. He concluded that there was no psychiatric reason why the applicant could not be transferred to Aruba, and that, psychologically, such a transfer would probably be favourable for the applicant as his family was living there.

In anticipation of the periodic review of life sentences to be introduced in the Curaçao Criminal Code, the Procurator General, in a letter of 9 September 2011, requested a psychiatric examination of the applicant.

On 7 October 2011 psychologist J.S.M. stated as follows:

“... the results of the test show that [the applicant] is suffering from symptoms of depression. He pents up his emotions and anger and hides them from those around him. ... [The applicant] has little trust in other people. In his opinion people use and abuse each other in order to achieve their goals. That is why he is very distrustful of the people he encounters and displays antisocial behaviour. ... He is extremely sensitive to criticism and rejection.

[The applicant] has been detained for a very long time, and as a result his feeling of well-being has deteriorated. His social skills have similarly deteriorated and he has given up hope of his situation undergoing any change, which has resulted in [the applicant] having to cope with very negative and depressive feelings about himself and others.

[The applicant] requires support as regards his bottled-up negative and depressive feelings and in order to improve his general well-being.

My advice as regards a pardon is not to give [the applicant] false hope and to be clear about the aspects of his case.

If a pardon is applicable, it is recommended that [the applicant] follow a rehabilitation and social skills programme and that he be provided with support both inside and outside the KIA in order to promote his independence and functioning in society.”

On 26 March 2012 the Aruban Foundation for Probation, Social Rehabilitation and the Protection of Juveniles (Stichting Reclassering en Jeugdbescherming) issued a report, in which it was noted that the applicant could live with his mother on Aruba and could work in an upholstery shop. The person who drew up the report found it difficult to estimate the risk of recidivism, but considered that with appropriate support following release his prospects of successfully integrating in society were good.

At the request of the Joint Court of Justice three reports were issued.

The first of these reports, which was issued by the KIA on 25 May 2012, included the following:

“[The applicant] is a calm, quiet man of 59 who has never been given a disciplinary punishment during his detention. ... He carries out his duties adequately and to the satisfaction of prison staff. In principle he works alone, but is occasionally willing to train other inmates in upholstery work. ... He is always polite and respectful towards prison staff; none of them have complaints about him. He rarely has any contact with the social worker and if he does, he always asks the same questions. It is as if he forgets matters which have already been discussed.”

The second report was drawn up on 21 July 2012 by psychiatrist M.V., who concluded as follows:

“The personality test showed that the subject has an antisocial personality disorder with mild psychopathic features. There are also signs of narcissistic features. The character structure is rigid, but is not strongly displayed, perhaps because of his age. The risk that he will reoffend or get into trouble in some other way upon return to society is considered to be present (moderate risk in comparison with the forensic population). ... In general the subject can be described as having an antisocial personality whose more unpleasant manifestations have been mitigated. ... It is reasonably certain that his personality will not change. Personality is formed up to age 35, after which only small changes take place. The examination shows that the subject’s personality profile is fairly rigid. He will therefore always be a fairly unpleasant person in his relations with others and will always have difficulty in establishing and maintaining social contacts. Given his personality, I estimate the chances of successful integration in society to be small.”

The third report requested by the Joint Court of Justice was compiled by psychiatrist G.E.M. on 17 August 2012, in which the following was concluded:

“The subject is, however, suffering from a severe antisocial personality disorder, characterised by a highly undifferentiated, fairly primitive emotional awareness, an underdeveloped conscience, rudimentary social skills, a lack of empathy. ... Although the subject displayed problematic and aggressive behaviour during the first few years of his detention, even including an attempt at poisoning, he has practically been a model prisoner over the last few years. ... This change in behaviour is largely attributable to the structure provided by the prison setting and the fact that he is much older now (almost 60) and is likely to become more and more moderate as the years go by. ... [A]s to the risk of recidivism: I am in two minds. Whereas the subject is almost a model prisoner, his character traits have not in essence changed. He continues to be a person with a serious disability. It remains in doubt how he will react and to what extent he can survive once the structure offered by the prison is no longer in place.”

Following up the decision of 21 September 2012 given by the Joint Court of Justice, the Public Prosecution Service in Curaçao concluded that more structured contact with a psychiatrist would be desirable. For this reason, the Procurator General of Curaçao asked his counterpart in Aruba to ensure that the applicant received regular visits from a psychiatrist who would counsel him on the basis of a treatment plan, in so far as this could be done within the constraints of the enforcement of his life sentence.

A document entitled “Psychological Report” was drawn up by the Aruba prison’s psychologist J.S.M. (who had reported on the applicant for the purposes of the periodic review; see paragraph 37 above) on 24 July 2014, apparently at the request of the applicant’s representative. The psychologist stated that she had conducted a psychological test and an interview with the applicant, at a time (2011) when she had only been working at the prison for a few months. She had no knowledge of what had been offered to the applicant prior to that. The short time during which she had had experience of the applicant was insufficient for her to produce a support plan or to execute such a plan.

A second document entitled “Psychological Report” was drawn up by the same psychologist on 1 September 2014, at the request of the Government. Apart from one sentence, this report is identical to the report of 24 July 2014. The sentence in question states that, after consulting the applicant’s medical file, the psychologist declared that no psychological or psychiatric treatment of the applicant had taken place.

In an email of 29 July 2014 to the applicant’s representative, the senior social worker in the Aruba prison stated that there was nothing in the prison’s medical file on the applicant, who had been transferred to Aruba in 1999, to suggest that he had undergone any treatment by a psychiatrist or a psychologist. The KIA had employed a psychologist in 2011 but she had not treated or supported the applicant. The applicant had visited the social work department of the prison with some regularity in order to talk or to organise practical matters.


CASE OF PERİHAN AND MEZOPOTAMYA BASIN YAYIN A.Ş. v. TURKEY

Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen

The first applicant was born in 1966 and lives in Istanbul. The second applicant is a joint-stock company incorporated in Turkey in 1991 and dissolved in 2001 (see below). The first applicant was appointed as Director General of Mesopotamia Publishing on 24 December 2001.

On 26 October 1997 Mesopotamia Publishing inaugurated a branch office in Şanlıurfa. On the same day, police officers from the Şanlıurfa Security Directorate conducted a search of that office, confiscating certain newspapers, magazines, books, cassettes and documents, which were allegedly illegal.

On 27 October 1997 the Deputy Governor of Şanlıurfa requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution.

On 30 October 1997 the public prosecutor instituted proceedings against Mr Murat Gökdağ, the manager of the Şanlıurfa branch office, and Ms Nuray Şen, the then Director General of Mesopotamia Publishing. They were accused of storing banned books at the branch office.

On 6 June 2000 the Şanlıurfa Magistrate’s Court held that the criminal proceedings should be discontinued since the prosecution was time-barred under Article 102 of the Criminal Code.

On 13, 14, 20, 25, 27 and 28 December 1997, the Diyarbakır office of Mesopotamia Publishing was searched by police officers. Various books and publications, including a calendar published by Mesopotamia Publishing, were confiscated.

On 14 January 1997 the Diyarbakır office was closed on the order of the Diyarbakır Governor.

On 10 February 1998 the Diyarbakır Governor requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution under the relevant provisions of the Commercial Code.

On an unspecified date criminal proceedings were instituted in the Istanbul State Security Court against members of Mesopotamia Publishing’s board of directors for publishing a calendar which was allegedly used to disseminate propaganda in favour of the illegal Kurdistan Workers’ Party (“the PKK”).

On 17 September 1999 the Istanbul State Security Court suspended the proceedings, pursuant to Law No. 4454 on the suspension of pending cases and penalties in media-related offences.

On 26 December 1997 the Izmir office of Mesopotamia Publishing was searched by police officers. Certain publications, which were allegedly illegal, and a satellite decoder were seized.

On 30 December 1997 the Izmir Governor asked the Ministry of Industry and Trade to institute dissolution proceedings against Mesopotamia Publishing, alleging that the company had been disseminating propaganda in favour of the PKK.

On an unspecified date, criminal proceedings were instituted in the Izmir Magistrate’s Court against Ms Hatice Çoban, the manager of the Izmir branch.

On 14 May 1998 the court acquitted Ms Çoban of the charges against her.

Following complaints lodged by the Şanlıurfa Governor and the Diyarbakır Governor respectively, on 24 February 1998 the Ministry of Industry and Trade (“the plaintiff”) instituted proceedings against Mesopotamia Publishing in the Istanbul Beyoğlu Commercial Court, with a view to its dissolution on account of its activities against public order. On 27 February 1998 the Istanbul Beyoğlu Commercial Court registered the case against Mesopotamia Publishing. It decided, inter alia, to notify the parties of the date of the hearing fixed for 3 April 1998, in accordance with Articles 509 and 510 of the Code of Civil Procedure, which provided a warning that if one of the parties failed to appear before it or to submit observations, the court would not be precluded from determining the merits of the case. It further decided to notify Mesopotamia Publishing of the plaintiff’s written submissions and evidence.

On 12 March 1998 the above documents were served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry. They were picked up by a certain Mr M.B., who signed the notification record as an authorised representative (şirket yetkilisi).

In the meantime, the plaintiff submitted a number of pieces of evidence to the case file in support of its claim, including official documents, such as incident and seizure reports relating to the abovementioned searches. They were admitted to the case file on 17 March 1998.

At a hearing on 3 April 1998 the court noted the absence of Mesopotamia Publishing, but observed that the notification had been duly served. The evidence provided by the plaintiff was read out. The court decided to compile further information and documents regarding the accusations against Mesopotamia Publishing from the Şanlıurfa, Izmir and Diyarbakır public prosecutors’ offices.

The court held regular hearings. At the hearing held on 28 July 1999 the court decided to stay the proceedings pending the outcome of the cases before the criminal courts.

On 19 October 2001 the court decided to dissolve Mesopotamia Publishing, pursuant to Article 274 § 2 of the Commercial Code. In its decision, it noted that, despite due notification, the company had failed to attend the hearings and had not submitted any observations. It took into account the incidents which had taken place at the Şanlıurfa and Diyarbakır branch offices, and held that the company was responsible for them. It considered that the activities of those branches had breached public order and that therefore the company had to be dissolved. A liquidator was assigned. The decision of the court was served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry.

On 28 March 2002 Mesopotamia Publishing appealed against the decision of the first-instance court. In its procedural grounds of appeal, it contended, inter alia, that the court had failed to duly notify it of the case because the notification had been served on a certain Mr M.B., who was not a member of the board of directors at that time. In addition, Mesopotamia Publishing argued that it had not been notified of the evidence admitted in the course of the proceedings. In its substantive grounds of appeal, it claimed that the court had decided on the basis of two incidents in connection with which the company had not been convicted.

At a hearing on 15 October 2002 the Court of Cassation, having heard the parties, decided to adjourn the deliberations.

On 17 October 2002 the Court of Cassation, having examined the case file, the parties’ submissions to it and the documents contained therein, dismissed Mesopotamia Publishing’s objections.

On 10 December 2002 Mesopotamia Publishing requested the Court of Cassation to rectify its judgment. It repeated its earlier submissions regarding what it described as “substantial grounds for appeal”.

On 24 January 2003 the Court of Cassation dismissed the abovementioned rectification request.