LAKE proti Nizozemsku

THIRD SECTION

DECISION

Application no. 2445/17
Ashton Henry LAKE
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 15 November 2022 as a Committee composed of:

Peeter Roosma, President,
Jolien Schukking,
Andreas Zünd, judges,

and Olga Chernishova, Deputy Section Registrar,

Having regard to the above application lodged on 3 January 2017,

Having regard to the declaration submitted by the respondent Government on 26 April 2022 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Ashton Henry Lake, is a British national, who was born in 1963 and, at the time the application was lodged, was detained in Sint Maarten. He was represented before the Court by Ms C. Reijntjes‑Wendenburg, a lawyer practising in Valkenswaard.

2. The Government of the Kingdom of the Netherlands (“the Government”) were represented by their Agent, Ms B. Koopman, and their Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs.

3. The applicant was convicted of unlawful restraint (wederrechtelijke vrijheidsberoving), rape and murder and sentenced to life imprisonment in 1984. His complaint under Article 3 of the Convention concerning the alleged irreducibility of his life imprisonment sentence in that he was not enabled to make progress towards rehabilitation and had no prospect of release was communicated to the Government in 2017.

4. The review of the applicant’s life sentence – which ought to have commenced when the relevant provision of national law entered into force in 2015 – was started in 2018. Behavioural experts, the probation services and the prison where the applicant was detained drew up reports, and a resocialisation programme was set up.

5. In its decision of 6 April 2022 on the review, the Joint Court of Justice (Gemeenschappelijk Hof van Justitie) of Aruba, Curaçao and Sint Maarten and of Bonaire, Sint Eustatius and Saba found, inter alia, on the basis of the abovementioned reports that the risk of the applicant’s re-offending after release was so low that the protection of society against that risk should no longer prevail. It concluded that the further unconditional execution of the applicant’s life sentence no longer served a reasonable purpose and ordered his release – on the life-long condition that the applicant not commit a criminal offence – as of 1 July 2022.

THE LAW

6. The applicant complained about the alleged irreducibility of his life sentence. He relied on Article 3 of the Convention.

7. After the failure of attempts to reach a friendly settlement, by a letter of 26 April 2022 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

8. The declaration provided as follows:

“The Government acknowledge that by a review of his life sentence not having been initiated in 2015 and by not having been provided at the outset with clear guidance on what he should do to be considered for release and on how the review would be conducted, the applicant found himself, at the time he lodged his application with the Court, in a situation falling short of the requirements of Article 3 of the Convention. The Government sincerely regret this and are prepared to reimburse the costs and expenses incurred by the applicant to the amount of 5,500 euros (EUR).”

9. The Government had already informed the Court in 2019 that while a periodic review of life sentences in Sint Maarten had been provided for by law since 2015, the legal provision at issue had not been accompanied by concrete guidelines for the process leading up to the review. The authorities of Sint Maarten were now working on a guiding policy framework for the review of life sentences, enabling a life prisoner to rehabilitate himself or herself in such a way as to become eligible for release.

10. By a letter of 24 June 2022, the applicant indicated that he was not satisfied with the terms of the unilateral declaration. He argued, firstly, that his case did not stand alone and that the situation he complained of was of a structural nature. Secondly, he submitted that it would have been reasonable to award him a certain amount of non-pecuniary damage for the treatment in breach of Article 3 of the Convention that he had undergone. Lastly, he had incurred a higher amount of costs than the Government were prepared to reimburse, since he had had to pay for the services of his lawyer in the review proceedings (see paragraph 4 above), which had lasted a long time due to the fact that psychiatric and psychological reports had had to be drawn up to obtain information which ought already to have been gathered in the course of his detention.

11. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

12. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

13. To this end, the Court has examined the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI; WAZA Sp. z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September2007).

14. The Court has established clear and extensive case-law concerning complaints relating to life-sentences without prospect of release (see, for example, Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts); Murray v. the Netherlands [GC], no. 10511/10, 26 April 2016; and Hutchinson v. the United Kingdom [GC], no. 57592/08, 17 January 2017).

15. The Court notes the nature of the admissions contained in the Government’s declaration, as well as the other information provided by them (see paragraph 9 above) and the developments which have taken place (see paragraph 5 above). It further notes that the execution of the Grand Chamber judgment in the case of Murray (cited above), which concerned similar issues, is currently under the supervision of the Committee of Ministers and that necessary general measures are being taken in that context. The Court considers that the Committee of Ministers is better placed and equipped than the Court to monitor the measures that need to be adopted by the respondent State (see, mutatis mutandis, Rutkowski and Others v. Poland, nos. 72287/10 and 2 others, § 207, 7 July 2015, with further references).

16. The absence from the unilateral declaration of a grant of compensation for non-pecuniary damage does not, in the view of the Court, render the declaration unacceptable (see Friðjón Björgvin Gunnarsson v. Iceland (dec.), no. 48281/18, 10 May 2022). The Court has itself consistently declined to make an award under that heading in cases concerning the same issue (see, for example, Vinter and Others, cited above, § 136; Murray, cited above, § 131; Matiošaitis and Others v. Lithuania, nos. 22662/13 and 7 others, § 199, 23 May 2017; and Bancsók and László Magyar (no. 2) v. Hungary, nos. 52374/15 and 53364/15, § 52, 28 October 2021).

17. As to the applicant’s claim that he incurred more costs and expenses than the Government were prepared to reimburse, the Court observes that this claim has not been substantiated with bills or invoices. Moreover, the costs and expenses referred to by the applicant were incurred in the review proceedings which commenced when the application was already pending before the Court (see paragraph 4 above). It can thus not be said that they were incurred in the proceedings before the Court or in proceedings aimed at trying to prevent the alleged violation from occurring or in trying to obtain redress therefor. As such, they would not be eligible for an award of compensation by the Court under Article 41 of the Convention (see, for instance, Van Geyseghem v. Belgium [GC], no. 26103/95, § 45, ECHR 1999‑I, and Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 90, 7 February 2012), and the Court finds that the Government cannot be required to provide such compensation in their unilateral declaration.

18. In the light of the above considerations, in particular in the context of the relevant developments (paragraphs 5 and 9 above) and given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

19. The Court considers that the amount for costs and expenses should be paid within three months from the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

20. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

21. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 3 of the Convention;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 8 December 2022.

Olga Chernishova Peeter Roosma
Deputy Registrar President