‘Life should mean life’ is a common refrain of British politicians of a certain stamp. It has been a source of tension between the current UK government and the European Court of Human Rights over ‘whole life’ tariffs. Who are European judges to interfere with the right of British courts to lock away the most notorious criminals for the rest of their natural lives, goes the cry.
Yet there is one European country where life truly means life, with virtually no prospect of parole. In the Netherlands a prisoner serving levenslang can only be released if the justice minister grants him a pardon, but in practice this is all but impossible. The only such case in the last 30 years was a terminally ill lifer who was let out in 2009 to spend his final weeks with his family.
Many within the Dutch legal community claim the strict life term is incompatible with the European Convention on Human Rights and its prohibition on cruel and inhumane punishments. Jeroen Recourt, a former judge who is now the Labour party’s spokesman on justice, has tabled a motion in Parliament calling for all life prisoners to be reassessed after 25 years. In November, the district court in Assen refused to impose a life sentence on two brothers found guilty of murdering three people, because the Dutch practice was ‘at odds’ with European law. The murders were carefully planned and brutal: one victim, a 55-year-old man, was shot dead while out walking his dog, while an elderly couple were strangled in their home. In both cases the motive was robbery. The court ordered them to serve 30 years, the maximum time-limited sentence.
Stichting Forum Levenslang (SFL), a volunteer panel of law professionals which campaigns to reform the life sentence, called the judgment in Assen ‘historic’, but cautioned that its long-term impact is far from clear. Its chair, Wiene van Hattum, pointed out that the public prosecution service has appealed against the sentence and the district court in Amsterdam has since handed down a life sentence to a man who poisoned two people to claim their life insurance. But the explicit rejection of the Dutch life term by a court on humanitarian grounds is an important milestone, says Van Hattum. ‘If you are in prison with no prospects it has an adverse impact on your mental health. In theory there is a review mechanism in the form of a pardon, but in practice it doesn’t happen. Life really means for life.’
There are currently 33 lifers in Dutch custody, of whom the longest serving was sentenced in 1984. The sentence has become more common since 2000, perhaps reflecting a hardening of public attitudes; 24 of the current life prisoners were sentenced in the last 15 years. Until 1970 it was routine for lifers to be pardoned once they were no longer seen as a danger to society, but since then only three have left prison alive. Van Hattum says the decision on when prisoners are released should be taken by judges, not politicians. ‘A decision about an individual’s life should not depend on the political climate of the day,’ she says. ‘It should be a matter for the judiciary.’
SFL proposes having life sentences reviewed by judges after 20 years and every three years thereafter. But Van Hattum says prisoners also need specialist support to facilitate rehabilitation. A programme to support long-term prisoners through their sentences, including psychological assessments to decide if they were suitable for release, was scrapped in 2000. ‘The two things go hand in hand,’ Van Hattum said. ‘At the moment we have no way of monitoring progress. We need to adapt the way we deal with detainees to focus on their mental and moral development. Otherwise a prisoner who goes before the judge after 20 years or more is a wreck who can no longer be helped.’
The Dutch government’s position, supported by Supreme Court judgments, is that the pardon system and the rehabilitation mechanisms give life prisoners a sufficient chance of rehabilitation and do not breach Article 3 of ECHR, which prohibits ‘inhuman or degrading treatment’. The reality, argues Van Hattum, is that life prisoners have no hope of release unless they are at death’s door. Ultimately she expects it will take a test case in Strasbourg to settle the issue. The last case brought before the European court was in 1977, when a German war criminal’s appeal was dismissed because the judges decided they had no jurisdiction. Since then cases such as Kafkaris v Cyprus have established that ‘irreducible’ life sentences are potentially in breach of Article 3.
‘There is momentum for bringing a case to Strasbourg, but it’s a difficult route and it will take at least a year,’ says Van Hattum. ‘There are 33 life prisoners but not all their lawyers have the time or the inclination to pursue it. They are very demanding cases. But I believe things are heading in the right direction.’