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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> VINTER AND OTHERS v. THE UNITED KINGDOM - 66069/09 130/10 3896/10 - Grand Chamber Judgment  ECHR 645 (09 July 2013)
Cite as: 63 EHRR 1,  ECHR 645,  Crim LR 81, 34 BHRC 605, (2016) 63 EHRR 1,  CLY 1550
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CASE OF VINTER AND OTHERS v. THE UNITED KINGDOM
(Applications nos. 66069/09, 130/10 and 3896/10)
9 July 2013
This judgment is final but may be subject to editorial revision.
In the case of Vinter and Others v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Luis López Guerra,
Mirjana Lazarova Trajkovska,
Johannes Silvis, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 28 November 2012 and on 29 May 2013,
Delivers the following judgment, which was adopted on the last-mentioned date:
There appeared before the Court:
(a) for the Government
Ms L. Dauban, Agent,
Mr D. Perry QC,
Mr L. Mably, Counsel,
Mr J. Guess,
Ms. A. Foulds, Advisers;
(b) for the applicants
Mr R. Horwell QC,
Mr P. Weatherby QC,
Mr L. Hindmarsh, Counsel,
Mr S. Creighton,
Mr B. Woods,
Prof D. Van Zyl Smit, Advisers.
The Court heard addresses by Mr Perry and Mr Weatherby and their answers in reply to questions put by the Court.
I. THE CIRCUMSTANCES OF THE CASE
Exceptionally, however, “a whole life order” may be imposed by the trial judge instead of a minimum term if, applying the principles set out in schedule 21, he or she considers that the seriousness of the offence is exceptionally high.
The effect of a whole life order is that the prisoner cannot be released other than at the discretion of the Secretary of State. The power of the Secretary of State to release a prisoner is provided for in section 30(1) of the Crime (Sentences) Act 1997. The Secretary of State will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated (see Prison Service Order 4700 set out at paragraph 43 below).
It was also open to the Secretary of State to impose a “whole life tariff” on a prisoner. In such a case, it was the practice of the Secretary of State to review a whole life tariff after twenty-five years’ imprisonment to determine whether it was still justified, particularly with reference to cases where the prisoner had made exceptional progress in prison (see the case of Hindley at paragraph 46 below).
With the entry into force of the 2003 Act (and, in particular, section 276 and schedule 22 to the Act, which enact a series of transitional measures concerning existing life prisoners: see paragraphs 40 and 41 below), all prisoners whose tariffs were set by the Secretary of State have been able to apply to the High Court for review of that tariff. Upon such an application the High Court may set a minimum term of imprisonment or make a whole life order.
B. Mr Vinter
C. Mr Bamber
D. Mr Moore
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Human Rights Act 1998
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority.
B. Statutory provisions on mandatory life sentences
1. The Murder (Abolition of the Death Penalty) Act 1965
2. The Criminal Justice Act 2003
(a) Part 12, Chapter 7
(b) Schedule 21
“(a) the murder of two or more persons, where each murder involves any of the following-
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious or ideological cause, or
(d) a murder by an offender previously convicted of murder.”
By paragraph 5(1), if the seriousness of the offence does not fall within paragraph 4(1) but is “particularly high”, the appropriate starting point in determining the minimum term is thirty years’ imprisonment. Paragraph 5(2) provides that the following cases would normally fall within this category:
“(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation, or
(h) a murder falling within paragraph 4(2) committed by an offender who was aged under 21 when he committed the offence.”
Paragraphs 6 and 7 provide that, in all other cases, the appropriate starting point in determining the minimum term is fifteen years’ imprisonment (twelve years for those less than eighteen years of age).
Paragraphs 8 and 9 provide that, having chosen a starting point, the trial judge should take into account any aggravating or mitigating factors which may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order.
Paragraph 10 provides that aggravating factors include:
“(a) a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the offence,
(f) the fact that the victim was providing a public service or performing a public duty, and
(g) concealment, destruction or dismemberment of the body.”
Paragraph 11 provides that mitigating factors include:
“(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which (although not falling within section 2(1) of the Homicide Act 1957 (c. 11)), lowered his degree of culpability,
(d) the fact that the offender was provoked (for example, by prolonged stress) in a way not amounting to a defence of provocation,
(e) the fact that the offender acted to any extent in self-defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender.”
(c) Schedule 22
The minimum term set by the High Court must not be greater than that previously set by the Secretary of State (paragraph 3(1)(a)).
Similar provisions apply to sentences passed after the commencement of the Act in respect of murders committed before commencement. Paragraph 10 provides that the court may not make an order which, in its opinion, is greater than that which the Secretary of State would have been likely to have made under the previous practice.
C. The Secretary of State’s discretion to release
Chapter 12, where relevant, provides:
“The criteria for compassionate release on medical grounds for all indeterminate sentence prisoners (ISP) are as follows:
• the prisoner is suffering from a terminal illness and death is likely to occur very shortly (although there are no set time limits, 3 months may be considered to be an appropriate period for an application to be made to Public Protection Casework Section [PPCS]), or the ISP (Indeterminate Sentenced Prisoner) is bedridden or similarly incapacitated, for example, those paralysed or suffering from a severe stoke;
• the risk of re-offending (particularly of a sexual or violent nature) is minimal;
• further imprisonment would reduce the prisoner’s life expectancy;
• there are adequate arrangements for the prisoner’s care and treatment outside prison;
• early release will bring some significant benefit to the prisoner or his/her family.”
[underlining in the original]
The Order also specifies that compassionate release must be approved personally by a Minister; it is not a decision which is delegated to officials.
Forty-one prisoners are currently subject to whole life orders (including those held in secure hospitals). Since 2000, no prisoner serving a whole life term had been released on compassionate grounds. In response to a freedom of information request by the first applicant, the Ministry of Justice indicated that, as of 30 November 2009, thirteen life-sentence prisoners who had not been given whole life terms had been released on compassionate grounds.
D. Relevant domestic case-law on mandatory life sentences and the Convention
1. Case-law on the pre-2003 Act system
Such a sentence was partly punitive, partly preventative. The punitive element was represented by the tariff term, imposed as punishment for the serious crime which the convicted murderer had committed. The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until the Parole Board, an independent body, considered it safe to release him, and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public (Lord Bingham of Cornhill at paragraph 8 of the judgment).
The House of Lords therefore held firstly, that the appellant’s complaints were not of sufficient gravity to engage Article 3 of the Convention and secondly, that the life sentence was not arbitrary or otherwise contrary to Article 5 § 1 of the Convention. Lord Bingham added:
“If the House had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of his days, to remain in custody until (if ever) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention, I would have little doubt that such a sentence would be found to violate Articles 3 and 5 of the European Convention on Human Rights ... as being arbitrary and disproportionate.”
2. Case-law on the 2003 Act system and its compatibility with Article 3 of the Convention
(a) R v. Bieber
Having observed that, in Kafkaris, this Court had found that the imposition of an irreducible life sentence might raise an issue under Article 3, the Court of Appeal went on to state:
“39. It seems to us that the Court [in Kafkaris] considered that an irreducible life sentence raises an issue under Article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under Article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified.
40. The legitimate objects of imprisonment are punishment, deterrence, rehabilitation and protection of the public. Where a mandatory life sentence is imposed in respect of a crime, the possibility exists that all the objects of imprisonment may be achieved during the lifetime of the prisoner. He may have served a sufficient term to meet the requirements of punishment and deterrence and rehabilitation may have transformed him into a person who no longer poses any threat to a public. If, despite this, he will remain imprisoned for the rest of his life it is at least arguable that this is inhuman treatment. Thus we have concluded that, where a crime attracts a mandatory and irreducible life sentence regardless of the particular circumstances of the crime, an issue will arise in relation to Article 3.
41. The decision in Kafkaris raises a more difficult issue. Is there some maximum term of imprisonment that can be justified by the objects of punishment and deterrence, after which a prisoner ought to be released if rehabilitation has transformed him into a man who no longer poses a threat of criminal behaviour? If this question falls to be answered in the affirmative, then an irreducible life sentence that may result in detention beyond that term is arguably inhuman and raises an issue under Article 3. The concurring opinion of Judge Bratza and the opinion of the five dissentients suggest that they were of the view that this was indeed the position. The European material to which we have referred suggests that some Member States consider that there is a maximum sentence of imprisonment that can be justified by way of punishment, after which humanity requires that the offender be given the opportunity to demonstrate that he is fit to be permitted back into society.
42. The United Kingdom does not rank among such Member States. Schedule 21 of the 2003 Act proceeds on the premise that some crimes are so heinous that they justify imprisoning the offender for the rest of his life, however long that may be. The differences in approach between different Member States was recognised by the comment made by in the majority decision in Kafkaris at paragraph 104. The Court was in that case dealing with a mandatory life sentence and the approach of the Court must be considered in that context. We do not consider that it follows from the decision of the majority of the Grand Chamber that an irreducible life sentence, imposed by a judge to reflect the appropriate punishment and deterrence for a very serious offence is in potential conflict with Article 3."
“45. While under English law the offence of murder attracts a mandatory life sentence, this is not normally an irreducible sentence. The judge specifies the minimum term to be served by way of punishment and deterrence before the offender’s release on licence can be considered. Where a whole life term is specified this is because the judge considers that the offence is so serious that, for purposes of punishment and deterrence, the offender must remain in prison for the rest of his days. For the reasons that we have given, we do not consider that the Strasbourg court has ruled that an irreducible life sentence, deliberately imposed by a judge in such circumstances, will result in detention that violates Article 3. Nor do we consider that it will do so.
46. It may be that the approach of the Strasbourg court will change. There seems to be a tide in Europe that is setting against the imposition of very lengthy terms of imprisonment that are irreducible. Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are, in fact irreducible.
48. Under the current regime the Secretary of State has a limited power to release a life prisoner under section 30 of the Crime (Sentences) Act 1997.
At present it is the practice of the Secretary of State to use this power sparingly, in circumstances where, for instance, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. If, however, the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment, we can see no reason why, having particular regard to the requirement to comply with the Convention, the Secretary of State should not use his statutory power to release the prisoner.
49. For these reasons, applying the approach of the Strasbourg court in Kafkaris, we do not consider that a whole life term should be considered as a sentence that is irreducible. Any Article 3 challenge where a whole life term has been imposed should therefore be made, not at the time of the imposition of the sentence, but at the stage when the prisoner contends that, having regard to all the material circumstances, including the time that he has served and the progress made in prison, any further detention will constitute degrading or inhuman treatment.
50. For these reasons we reject the challenge made to the defendant’s sentence that is founded on Article 3.”
(b) R. v. Oakes and others
“Every civilised country embraces the principle encapsulated in Article 3.
Simultaneously, however, every civilised country also embraces the principle that just punishment is appropriate for those convicted of criminal offences. These issues relating to just and proportionate punishment are the subject of rational debate and civilised disagreement. The assessment of what should be deemed to constitute just punishment or inhuman or degrading punishment in a particular circumstance can legitimately produce different answers in different countries, and indeed different answers at different times in the same country. All these are at least in part a consequence of the history of each country. The question whether the whole life order constitutes a breach of Article 3 of the Convention, or indeed of the long established common law principle that the sentence should be proportionate in all the relevant circumstances of the offence and the criminal who has committed it, has been well debated.”
The court went on to record that both Laws LJ in Wellington (see paragraph 54 below) and the minority of the Chamber in the present case had viewed whole life orders with grave disquiet. However, it noted that the contrary view had also been expressed, inter alia in Hindley and Wellington (see paragraph 46 above and paragraph 57 below). There was a need to give due recognition and respect to legitimate but inconsistent views on the issue.
“From this analysis of the authorities in the European Court, it seems to us clear that the Court has proceeded on the basis that, provided the court has reflected on matters of mitigation properly available to the defendant, a whole life order imposed as a matter of judicial discretion as to the appropriate level of punishment and deterrence following conviction for a crime of utmost seriousness would not constitute inhuman or degrading punishment. In short, it is open to the individual state to make statutory provision for the imposition of a whole life minimum term, and in an appropriate case, as a matter of judicial discretion, for the court to make such an order.”
“The result is that the whole life order, the product of primary legislation, is reserved for the few exceptionally serious offences in which, after reflecting on all the features of aggravation and mitigation, the judge is satisfied that the element of just punishment and retribution requires the imposition of a whole life order. If that conclusion is justified, the whole life order is appropriate: but only then. It is not a mandatory or automatic or minimum sentence.
In these circumstances the provisions of Schedule 21 of the 2003 Act, and paragraph 4 in particular, which enabled the court to make a whole life order in a case of exceptional seriousness are not incompatible with and do not contravene Article 3 of the Convention.”
3. R (Wellington) v. Secretary of State for the Home Department  UKHL 72
“The abolition of the death penalty has been lauded, and justified, in many ways; but it must have been founded at least on the premise that the life of every person, however depraved, has an inalienable value. The destruction of a life may be accepted in some special circumstances, such as self-defence or just war; but retributive punishment is never enough to justify it. Yet a prisoner’s incarceration without hope of release is in many respects in like case to a sentence of death. He can never atone for his offence. However he may use his incarceration as time for amendment of life, his punishment is only exhausted by his last breath. Like the death sentence the whole-life tariff is lex talionis. But its notional or actual symmetry with the crime for which it is visited on the prisoner (the only virtue of the lex talionis) is a poor guarantee of proportionate punishment, for the whole-life tariff is arbitrary: it may be measured in days or decades according to how long the prisoner has to live. It is therefore liable to be disproportionate - the very vice which is condemned on Article 3 grounds - unless, of course, the death penalty’s logic applies: the crime is so heinous it can never be atoned for. But in that case the supposed inalienable value of the prisoner’s life is reduced, merely, to his survival: to nothing more than his drawing breath and being kept, no doubt, confined in decent circumstances. That is to pay lip-service to the value of life; not to vouchsafe it.”
However, and “not without misgivings”, he considered that the relevant authorities, including those of this Court, suggested an irreducible life sentence would not always raise an Article 3 issue.
III. RELEVANT EUROPEAN, INTERNATIONAL AND COMPARATIVE LAW ON LIFE SENTENCES AND “GROSSLY DISPROPORTIONATE” SENTENCES
A. Council of Europe texts
“1. pursue a criminal policy under which long-term sentences are imposed only if they are necessary for the protection of society;
2. take the necessary legislative and administrative measures in order to promote appropriate treatment during the enforcement of [long-term] sentences;
9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted;
10. grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release;
11. adapt to life sentences the same principles as apply to long-term sentences;
12. ensure that a review, as referred to in [paragraph] 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals;”
2. Recommendation 2003(23)
“the enforcement of custodial sentences requires striking a balance between the objectives of ensuring security, good order and discipline in penal institutions, on the one hand, and providing prisoners with decent living conditions, active regimes and constructive preparations for release, on the other ...”
Paragraph 2 of the recommendation goes on to state the aims of the management of life sentence and other long term prisoners should be:
“- to ensure that prisons are safe and secure places for these prisoners and for all those who work with or visit them;
- to counteract the damaging effects of life and long-term imprisonment;
- to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law-abiding life following their release.”
Included in the recommendation’s general principles for the management of such prisoners are: (i) individualisation principle (that consideration should be given to the diversity of personal characteristics to be found among life sentence and long-term prisoners and account taken of them to make individual plans for the implementation of the sentence) and; (ii) the progression principle (that individual planning for the management of the prisoner’s sentence should aim at securing progressive movement through the prison system) (see paragraphs 3 and 8 of the recommendation). The report accompanying the recommendation (prepared under the auspices of the European Committee of Crime Problems adds that progression has as its ultimate aim a constructive transition from prison life to life in the community (paragraph 44 of the report).
Paragraph 10 (on sentence planning) provides that such plans should be used to provide a systematic approach inter alia to: progressive movement through the prison system from more to less restrictive conditions with, ideally, a final phase spent under open conditions, preferably in the community; and conditions and supervision measures conducive to a law-abiding life and adjustment in the community after conditional release.
Paragraph 16 provides that, since neither dangerousness nor criminogenic needs are intrinsically stable characteristics, risk and needs assessments should be repeated at intervals.
Finally, paragraphs 33 and 34 (on managing reintegration into society) provide:
“33. In order to enable life sentence and other long-term prisoners to overcome the particular problem of moving from lengthy incarceration to a law-abiding life in the community, their release should be prepared well in advance and take particular account of the following:
- the need for specific pre-release and post-release plans which address relevant risks and needs;
- due consideration of the possibility of achieving release and the continuation post-release of any programmes, interventions or treatment undertaken by prisoners during detention;
- the need to achieve close collaboration between the prison administration and post-release supervising authorities, social and medical services.
34. The granting and implementation of conditional release for life sentence and other long-term prisoners should be guided by the principles set out in Recommendation Rec(2003)22 on conditional release.”
In respect of paragraph 34, the report accompanying the recommendation states (at paragraph 131):
“Recommendation Rec(2003)23 contains the principle that conditional release should be possible for all prisoners except those serving extremely short sentences. This principle is applicable, under the terms of the Recommendation, even to life prisoners. Note, however, that it is the possibility of granting conditional release to life prisoners that is recommended, not that they should always be granted conditional release.”
3. Recommendation 2003(22)
“3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.
4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.”
The Explanatory Memorandum accompanying the Recommendation states in respect of paragraph 4:
“Life-sentence prisoners should not be deprived of the hope to be granted release either. Firstly, no one can reasonably argue that all lifers will always remain dangerous to society. Secondly, the detention of persons who have no hope of release poses severe management problems in terms of creating incentives to co-operate and address disruptive behaviour, the delivery of personal-development programmes, the organisation of sentence-plans and security. Countries whose legislation provides for real-life sentences should therefore create possibilities for reviewing this sentence after a number of years and at regular intervals, to establish whether a life-sentence prisoner can serve the remainder of the sentence in the community and under what conditions and supervision measures.”
4. CPT Working document on Actual/Real Life Sentences
It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The document also quoted with approval the CPT’s report on its 2007 visit to Hungary in which it stated:
“[A]s regards “actual lifers”, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.
The document’s conclusion included recommendations that: no category of prisoners should be “stamped” as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release.
5. CPT report on Switzerland
“The CPT has serious reservations as to the concept of confinement "for life", according which these people, once they have been declared highly dangerous and untreatable, are considered once and all as presenting a permanent danger to society and are thus formally deprived of all hope of a more lenient enforcement of the sentence or even conditional release. Since the only way the person concerned can be released is through scientific advances, he or she is deprived of any ability to influence his eventual release, for example, by good behaviour in the course of the sentence.
In this respect, the CPT refers to Recommendation (2006) 2 of the Committee of Ministers of 11 January 2006, on the European Prison Rules, as well as paragraph 4(a) of Recommendation (2003) 22 of the Committee of Ministers of 24 September 2003, concerning conditional release, which indicates clearly that the law should allow for the possibility of all convicted prisoners, including those serving a life sentence, benefiting from conditional release. The Explanatory Memorandum to the latter insists that life prisoners should not be deprived of all hope of release.
The CPT considers therefore that it is inhuman to imprison someone for life without any real hope of release. The Committee strongly urges the Swiss authorities to re-examine the concept of detention "for life" accordingly.” [emphasis in the original]
“4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.”
The procedure and further criteria for review are set out in Rules 223 and 224 of the Rules of Procedure and Evidence.
Rule 223 provides:
“Criteria for review concerning reduction of sentence
In reviewing the question of reduction of sentence pursuant to article 110, paragraphs 3 and 5, the three judges of the Appeals Chamber shall take into account the criteria listed in article 110, paragraph 4 (a) and (b), and the following criteria:
(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
(b) The prospect of the resocialization and successful resettlement of the sentenced person;
(c) Whether the early release of the sentenced person would give rise to significant social instability;
(d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
(e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.”
Rule 224(3) provides that, for the application of Article 110(5) of the Statute, three judges of the Appeals Chamber shall review the question of reduction of sentence every three years, unless a shorter interval was established in the decision taken pursuant to Article 110(3). Rule 224(3) also provides that, in case of a significant change in circumstances, those three judges may permit the sentenced person to apply for a review within the three-year period or such shorter period as may have been set by the three judges.
“If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.”
Similar provisions to Articles 27 and 28 of the Statute of the ICTY are contained in the Statute of the International Criminal Tribunal for Rwanda (Articles 26 and 27), Statute of the Special Court for Sierra Leone (Articles 22 and 23), and the Statute of the Special Tribunal for Lebanon (Articles 29 and 30).
C. European Union law
“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure.”
First, there are currently nine countries where life imprisonment does not exist: Andorra, Bosnia and Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia and Spain. The maximum term of imprisonment in these countries ranges from twenty-one years in Norway to forty-five years in Bosnia and Herzegovina. In Croatia in a case of cumulative offences, a fifty-year sentence can be imposed.
Second, in the majority of countries where a sentence of life imprisonment may be imposed, there exists a dedicated mechanism for reviewing the sentence after the prisoner has served a certain minimum period fixed by law. Such a mechanism, integrated within the law and practice on sentencing, is foreseen in the law of thirty-two countries: Albania (25 years), Armenia (20), Austria (15), Azerbaijan (25), Belgium (15 with an extension to 19 or 23 years for recidivists), Bulgaria (20), Cyprus (12), Czech Republic (20), Denmark (12), Estonia (30), Finland (12), France (normally 18 but 30 years for certain murders), Georgia (25), Germany (15), Greece (20), Hungary (20 unless the court orders otherwise), Ireland (an initial review by the Parole Board after 7 years except for certain types of murders), Italy (26), Latvia (25), Liechtenstein (15), Luxembourg (15), Moldova (30), Monaco (15), Poland (25), Romania (20), Russia (25), Slovakia (25), Slovenia (25), Sweden (10), Switzerland (15 years reducible to 10 years), the former Yugoslav Republic of Macedonia (15), and Turkey (24 years, 30 for aggravated life imprisonment and 36 for aggregate sentences of aggravated life imprisonment).
In respect of the United Kingdom, the Court notes that, in Scotland, when passing a life sentence, a judge is required to set a minimum term, notwithstanding the likelihood that such a period will exceed the remainder of the prisoner’s natural life: see the Convention Rights (Compliance) (Scotland) Act 2001.
Third, there are five countries which make no provision for parole for life prisoners: Iceland, Lithuania, Malta, the Netherlands and Ukraine. These countries do, however, allow life prisoners to apply for commutation of life sentences by means of ministerial, presidential or royal pardon. In Iceland, although it is still available as a sentence, life imprisonment has never been imposed.
Fourth, in addition to England and Wales, there are six countries which have systems of parole but which nevertheless make special provision for certain offences or sentences in respect of which parole is not available. These countries are: Bulgaria, Hungary, France, Slovakia, Switzerland (for sex or violent offenders who are regarded as dangerous and untreatable: see the CPT report at paragraph 64 above) and Turkey.
“Every person shall have the right to life and physical integrity. Freedom of the person shall be inviolable. These rights may be interfered with only pursuant to a law.”
The compatibility of a mandatory sentence of life imprisonment for a murder of “wanton cruelty” with these provisions was considered by the Federal Constitutional Court in the Life Imprisonment case (lebenslange Freiheitsstrafe) of 21 June 1977, 45 BVerfGE 187.
The court found that the State could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth. Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “a concrete and realistically attainable chance” to regain his freedom at some later point in time; the State struck at the very heart of human dignity if it stripped the prisoner of all hope of ever earning his freedom.
The court also stressed that rehabilitation was constitutionally required in any community that established human dignity as its centrepiece. An offender had to be given the chance, after atoning for his crime, to re-enter society. The State was obligated - within the realm of the possible - to take all measures necessary for the achievement of that goal. Prisons had a duty to strive towards the re-socialisation of prisoners, to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment.
The court recognised, however, that, for a criminal who remained a threat to society, the goal of rehabilitation might never be fulfilled; in that case, it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself.
The court found that, subject to these conclusions, life imprisonment for murder was not a senseless or disproportionate punishment. The fact that, under the Criminal Code, life prisoners generally had a chance to be released after serving a certain length of time meant that the relevant provisions of the Code could be interpreted and applied in a manner which was compatible with the Basic Law.
The Basic Law did not exclude in principle that a life sentence be served in full, especially when the seriousness of the offence required a sentence that was longer than the minimum term for murder. However, even in these cases, it would not be compatible with the Basic Law if release could only be considered in cases of mental or physical infirmity or closeness to death. Release on these grounds would not be compatible with human dignity, or with the need for every prisoner to have a concrete and realistic chance of regaining his freedom, whatever the nature of his crime.
The Italian Constitutional Court has given four principal judgments on Article 27(3) of the Constitution.
In the first, the court’s judgment of 27 June 1974 (204/1974), a prisoner had applied for parole to the Minister of Justice. The Minister of Justice had consulted the judge responsible for the execution of the sentence, who, in turn, referred the case to the Constitutional Court for its opinion on the constitutionality of the relevant law concerning parole, under which decisions on release were to be taken by the Minister. The Constitutional Court found that, on the basis of Article 27(3) of the Constitution, rehabilitation was the aim of every sentence and the right of every prisoner. As such, there should be review of the sentence, carried out by a judge rather than a member of the executive, to determine whether, given the time served, rehabilitation had been achieved. The court also emphasised that, subject to appropriate conditions, parole was essential to achieving the aim of rehabilitation. The same conclusion was reached in respect of those serving life sentences in military prisons by the court in judgment 192/1976, 14 July 1976, concerning two German military officers serving such sentences for crimes committed during World War II.
The court’s second judgment, of 7 November 1974 (264/1974), was the result of reference made by the Verona Assize Court of as to whether a life sentence allowed for the rehabilitation of the prisoner and thus whether it was compatible with Article 27(3). Referring to its earlier judgment of 27 June 1974, the court found that there was the possibility of parole (even for life prisoners) and decisions on parole had to be taken by the judiciary rather than the executive. These factors meant rehabilitation of a life prisoner was possible and, as such, the practice of life sentences was compatible with Article 27(3).
The third judgment (21 September 1983, no. 274/1983) concerned the provision in Italian law which, at the time, allowed for the reduction of sentences by twenty days for every six months served but did not apply to those serving life sentences. In declaring the provision unconstitutional, the court recalled that Article 27(3) applied to all sentences without distinction and that the provision allowing for reduction of sentences (which had the stated aim of encouraging rehabilitation) could not in principle be precluded from applying to life sentences. The effect of the judgment was that, in respect of life sentences, the provisions on reduction of sentences applied to the period to be served before a life prisoner became eligible for parole.
The fourth judgment (2-4 June 1997, no. 161/1997) concerned Article 177 of the Criminal Code which provided that if a life prisoner breached any of the terms of his parole (and was thus recalled to prison), then he forfeited any right to apply for parole in the future. Recalling its previous judgments on rehabilitation and the importance of parole to rehabilitation, the Constitutional Court found that the effect of Article 177 was to exclude entirely the possibility of the prisoner’s rehabilitation. The court went on to find that the possibility of parole was the only means by which a sentence of life imprisonment could remain compatible with Article 27(3); if there was no such possibility the sentence would be incompatible with Article 27(3). As it stood, Article 177 was therefore unconstitutional. It remained for the legislature to determine the conditions under which parole could be obtained, provided that those conditions complied with the Constitution.
G. Case-law of other jurisdictions on grossly disproportionate sentences and on life sentences
1. “Gross disproportionality”
- Canada (section 12 of Charter of Rights as interpreted in R v. Smith (Edward Dewey)  1 SCR 1045; R v. Luxton  2 SCR 711; and R v. Latimer  1 SCR 3);
- Hong Kong (Lau Cheong v. Hong Kong Special Administrative Region  HKCFA 18);
- Mauritius (section 7 of the Constitution; State v. Philibert  SCJ 274);
- Namibia (State v. Tcoeib  1 LRC 90 (see paragraph 74 below); State v. Vries 1997 4 LRC 1; and State v Likuwa  1 LRC 600)
- New Zealand (section 9 of the New Zealand Bill of Rights Act 1990);
- South Africa (Dodo v. the State (CCT 1/01)  ZACC 16; Niemand v. the State (CCT 28/00)  ZACC 11); and
- the United States of America (the Eighth Amendment to the Constitution, as interpreted in, inter alia, Graham v. Florida 130 S. Ct. 2011, 2021 (2010)).
2. Life sentences
The Chief Justice also observed:
“[A]n order deliberately incarcerating a citizen for the rest of his or her natural life ... cannot be justified if it effectively amounts to a sentence which locks the gates of the prison irreversibly for the offender without any prospect whatever of any lawful escape from that condition for the rest of his or her natural life and regardless of any circumstances which might subsequently arise. Such circumstances might include sociological and psychological re-evaluation of the character of the offender which might destroy the previous fear that his or her release after a few years might endanger the safety of others or evidence which might otherwise show that the offender has reached such an advanced age or become so infirm and sick or so repentant about his or her past, that continuous incarceration of the offender at state expense constitutes a cruelty which can no longer be defended in the public interest.”
The Chief Justice added that such a culture of “mutually sustaining despair” was inconsistent with the Namibian Constitution, which required society to reform and rehabilitate its prisoners during their incarceration.
It had also been argued by the appellant that the mandatory nature of the sentence violated section 7 of the Constitution (the prohibition of torture, inhuman or degrading punishment or other such treatment). In light of its conclusion on section 10, the Privy Council considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section 75 (the presidential prerogative of mercy). It did, however, find that the safeguards available in Cyprus (in the form of the Attorney-General’s powers to recommend release and the President’s powers to commute sentences or decree release) were not available in Mauritius. The Privy Council also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and, to this end, quoted with approval the dicta of Lord Bingham in Lichniak and Lord Justice Laws in Wellington (at paragraphs and 45 and 54 above).
IV. RELEVANT INTERNATIONAL INSTRUMENTS ON THE REHABILITATION OF PRISONERS
A. Council of Europe texts
One of the basic principles of the Rules is contained in Rule 6, which provides:
“All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.”
Rule 102.1 provides that the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems) states that Rule 102 is in line with the requirements of key international instruments including Article 10(3) of the International Covenant on Civil and Political Rights (see paragraph 80 below).
Rule 103 governs the implementation of the regime for sentenced prisoners. Where relevant, it provides:
“103.2 As soon as possible after such admission [to prison], reports shall be drawn up for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release.
103.4 Such plans shall as far as is practicable include:
c. other activities; and
d. preparation for release.
103.8 Particular attention shall be paid to providing appropriate sentence plans and regimes for life sentenced and other long-term prisoners.”
Rule 107 (on release of sentenced prisoners) provides inter alia: that, in the case of those prisoners with longer sentences, steps shall be taken to ensure a gradual return to life in free society (Rule 107.2); and that prison authorities shall work closely with services and agencies that supervise and assist released prisoners to enable all sentenced prisoners to re-establish themselves in the community (Rule 107.4).
B. The United Nations Standard Minimum Rules
“58. The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.
59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.
60. (1) The regime of the institution should seek to minimize any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.
(2) Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same institution or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.
61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners ...
65. The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.
66. (1) To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release.”
C. The International Covenant on Civil and Political Rights
“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The Chamber’s conclusions
(i) a life sentence with eligibility for release after a minimum period had been served;
(ii) a discretionary sentence of life imprisonment without the possibility of parole (that is, a sentence which is provided for in law, but which requires a judicial decision before it can be imposed); and
(iii) a mandatory sentence of life imprisonment without the possibility of parole (that is, a sentence which is set down in law for a particular offence and which leaves a judge no discretion as to whether to impose it or not).
“[N]ormally, such sentences are imposed for offences of the utmost severity, such as murder or manslaughter. In any legal system, such offences, if they do not attract a life sentence, will normally attract a substantial sentence of imprisonment, perhaps of several decades. Therefore, any defendant who is convicted of such an offence must expect to serve a significant number of years in prison before he can realistically have any hope of release, irrespective of whether he is given a life sentence or a determinate sentence. It follows, therefore, that, if a discretionary life sentence is imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue cannot arise at the moment when it is imposed.”
B. The parties’ submissions
1. The Government
2. The applicants
Moreover, since the abolition of the death penalty, a whole life order was the only sentence which permanently excluded a prisoner from society and ran counter to the principle of reintegration which was predominant in European penal policy. No Council of Europe text endorsed whole life orders and some bodies, such as the CPT, considered life without parole to be inhuman (see the working document and the report on Switzerland at paragraphs 63 and 64 above). This was supported by the European consensus against the imposition of such sentences, the views of the Italian and German Constitutional Courts, and the views expressed by Supreme Court and Constitutional Courts around the world (see the relevant comparative law set out at paragraphs 68-75 above). It was also instructive that, in Scotland, whole life orders were not possible and that the Act of the Scottish Parliament which required judges to set minimum terms in all cases had been designed to ensure Scots law was compatible with the Convention (see also paragraph 68 above).
C. The Grand Chamber’s assessment
1. “Gross disproportionality”
2. Life sentences
In this respect, the Court would emphasise that no Article 3 issue could arise if, for instance, a life prisoner had the right under domestic law to be considered for release but was refused on the ground that he or she continued to pose a danger to society. This is because States have a duty under the Convention to take measures for the protection of the public from violent crime and the Convention does not prohibit States from subjecting a person convicted of a serious crime to an indeterminate sentence allowing for the offender’s continued detention where necessary for the protection of the public (see, mutatis mutandis, T. v. the United Kingdom, § 97, and V. v. the United Kingdom, § 98, both cited above). Indeed, preventing a criminal from re-offending is one of the “essential functions” of a prison sentence (see Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002-VIII; Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009; and, mutatis mutandis, Choreftakis and Choreftaki v. Greece, no. 46846/08, § 45, 17 January 2012). This is particularly so for those convicted of murder or other serious offences against the person. The mere fact that such prisoners may have already served a long period of imprisonment does not weaken the State’s positive obligation to protect the public; States may fulfil that obligation by continuing to detain such life sentenced prisoners for as long as they remain dangerous (see, for instance, Maiorano and Others, cited above).
Similar considerations must apply under the Convention system, the very essence of which, as the Court has often stated, is respect for human dignity (see, inter alia, Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III; and V.C. v. Slovakia, no. 18968/07, § 105, ECHR 2011 (extracts)).
Rule 103 of the European Prison Rules provides that, in the implementation of the regime for sentenced prisoners, individual sentence plans should be drawn up and should include, inter alia, preparation for release. Such sentence plans are specifically extended to life sentenced prisoners by virtue of Rule 103.8 (see paragraph 77 above).
Committee of Ministers Resolution 76(2) recommends that the cases of all prisoners - including life sentence prisoners - be examined as early as possible to determine whether or not conditional release could be granted. That resolution also recommends that review of life sentences should take place after eight to fourteen years of detention and be repeated at regular intervals (see paragraph 60 above).
Recommendation 2003(23) (on the management by prison administrations of life sentence and other long-term prisoners) emphasises that life sentence prisoners should benefit from constructive preparation for release, including, to this end, being able to progress through the prison system. The recommendation also expressly states that life sentence prisoners should enjoy the possibility of conditional release (see, in particular, paragraphs 2, 8 and 34 of the recommendation and paragraph 131 of the report accompanying the recommendation, all set out in paragraph 61 above).
Recommendation 2003(22) (on conditional release) also makes clear that conditional release should be available to all prisoners and that life sentence prisoners should not be deprived of the hope of release (see paragraph 4(a) of the recommendation and paragraph 131 of the explanatory memorandum, both set out paragraph 62 above).
The Committee for the Prevention of Torture has expressed similar views, most recently in its report on Switzerland (see paragraph 64 above).
The United Nations Standard Minimum Rules for the Treatment of Prisoners direct prison authorities to use all available resources to ensure the return of offenders to society (see Rules 58-61, 65 and 66, quoted at paragraph 78 above) Additional, express references to rehabilitation run through the Rules (see paragraph 79 above).
Equally, Article 10 § 3 of the International Covenant on Civil and Political Rights specifically provides that the essential aim of the penitentiary system shall be the reformation and social rehabilitation of prisoners. This is emphasised in the Human Rights Committee’s General Comment on Article 10, which stresses that no penitentiary system should be only retributory (see paragraphs 80 and 81 above).
Finally, the Court notes the relevant provisions of the Rome Statute of the International Criminal Court, to which 121 States, including the vast majority of Council of Europe member States, are parties. Article 110(3) of the Statute provides for review of a life sentence after twenty-five years, followed by periodic reviews thereafter. The significance of Article 110(3) is underscored by the fact that Article 110(4) and (5) of the Statute and Rules 223 and 224 of the ICC’s Rules of Procedure and Evidence set out detailed procedural and substantives guarantees which should govern that review. The criteria for reduction include, inter alia, whether the sentenced person’s conduct in detention shows a genuine dissociation from his or her crime and his or her prospect of resocialisation (see Rule 223(a) and (b), set out at paragraph 65 above).
3. General conclusion in respect of life sentences
4. The present case
The Government have submitted that the twenty-five year review was not included in the 2003 Act because one of the intentions of the Act was to judicialise decisions concerning the appropriate terms of imprisonment for the purposes of punishment and deterrence (see paragraph 95 above). However, the need for independent judges to determine whether a whole life order may be imposed is quite separate from the need for such whole life orders to be reviewed at a later stage so as to ensure that they remain justified on legitimate penological grounds. Furthermore, given that the stated intention of the legislative amendment was to remove the executive entirely from the decision-making process concerning life sentences, it would have been more consistent to provide that, henceforth, the twenty-five year review, instead of being eliminated completely, would be conducted within a wholly judicial framework rather than, as before, by the executive subject to judicial control.
This was, in effect, the reading given to section 30 by the Court of Appeal in Bieber and re-affirmed by it in Oakes (see, in particular, paragraph 49 above, setting out paragraphs 48 and 49 of Bieber and the Court of Appeal’s observation that while the section 30 power had been used sparingly, there was no reason why it should not be used by the Secretary of State to effect the necessary compliance with Article 3 of the Convention).
This reading of section 30 ensuring some prospects under the law for release of whole life prisoners would, in principle, be consistent with this Court’s judgment in Kafkaris, cited above. If it could be established that, in the applicants’ cases, a sufficient degree of certainty existed as to the state of the applicable domestic law to this effect, it could not be said that their sentences were irreducible and thus no violation of Article 3 would be disclosed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
However, this complaint was declared inadmissible by the Chamber in its judgment, which delimits the scope of the Grand Chamber’s jurisdiction (see, inter alia, Gillberg v. Sweden [GC], no. 41723/06, § 53, 3 April 2012, and Kafkaris, cited above, § 124, with further references therein). It follows that this complaint falls outside the scope of the case before the Grand Chamber.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
1. Holds, by sixteen votes to one, that there has been a violation of Article 3 in respect of each applicant;
2. Holds, unanimously, that the complaint under Article 5 § 4 of the Convention falls outside the scope of its examination;
3. Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the first applicant;
4. Holds, by sixteen votes to one,
(a) that the respondent State is to pay the first applicant, within three months, EUR 40,000 (forty thousand euros), to be converted into pounds sterling at the rate applicable at the date of settlement, in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of the first applicant’s claims for just satisfaction.
Done in English and in French, and notified at a public hearing in the Human Rights Building, Strasbourg, on 9 July 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O’Boyle Dean
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judge Ziemele;
(b) Concurring opinion of Judge Power-Forde;
(c) Concurring opinion of Judge Mahoney;
(d) Partly dissenting opinion of Judge Villiger.
CONCURRING OPINION OF JUDGE ZIEMELE
1. While I voted for the decision not to make any award for damage in this case in view of the nature of the Court’s findings summed up in paragraphs 130-131, I cannot fully subscribe to the reasons given by the Court in paragraph 136 and in point 3 of the operative part. I am perfectly aware that this is a long-standing practice of the Court. The wording always used by the Court is to say that “the finding of a violation of [the particular Article] constitutes sufficient just satisfaction”.
2. I have in the context of some earlier cases made clear my unease with this approach (see the joint separate opinion of Judges Ziemele and Karakas in Disk and Kesk v. Turkey, no. 38676/08, 27 November 2012). My unease relates to the very notion of State responsibility in international law and in fact to the distinction that one draws between an internationally wrongful act and its consequences. Article 28 of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (the “Draft Articles”) provides: “The international responsibility of a State which is entailed by an internationally wrongful act in accordance with the provisions of Part One involves legal consequences as set out in this Part [Part Two]”. The wording that the Court uses, in my view, mixes together the establishment of State responsibility by a court based on a violation of the State’s obligations under the Convention and the question of the Court’s view on the possible legal consequences following the finding of responsibility.
3. According to the rules on State responsibility, the main consequence following the internationally wrongful act is an obligation to make full reparation. This is an independent obligation. The ILC has stated that “the general obligation of reparation [is] the immediate corollary of a State’s responsibility” (see commentary on Article 31 of the Draft Articles, § 4). It is true that there are different forms of reparation, which include satisfaction for the injury caused “in so far as it cannot be made good by restitution or compensation” (Article 37 § 1 of the Draft Articles). “Satisfaction may consist in an acknowledgment of the breach, an expression of regret, a formal apology or another appropriate modality” (Article 37 § 2 of the Draft Articles). It is important to keep in mind that satisfaction provided by the responsible State, and not the courts, is not a standard form of reparation and may work only in those cases in which reparation cannot be fully satisfied through restitution or compensation. In any event, satisfaction under the rules on State responsibility should not be confused with what the European Court of Human Rights or other international courts or tribunals have considered to be just satisfaction.
4. As far as the Court is concerned, Article 41 follows the logic of the law on State responsibility since it first of all provides that, in principle, the responsible State should grant full reparation at national level and that it is only when such reparation is not available or possible that the Court may decide on just satisfaction. The Court has explained that where it has found a breach of the Convention in a judgment, the respondent State is under a legal obligation to put an end to that breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see, for example, Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 32, ECHR 2000 XI). In the case of Papamichalopoulus and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330 B, the Court held as follows:
“The Contracting States that are parties to a case are in principle free to choose the means whereby they will comply with a judgment in which the Court has found a breach. This discretion as to the manner of execution of a judgment reflects the freedom of choice attaching to the primary obligation of the Contracting States under the Convention to secure the rights and freedoms guaranteed (Article 1). If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. If, on the other hand, national law does not allow - or allows only partial - reparation to be made for the consequences of the breach, Article 50 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate”.
In other words, the Court declares that an action or omission by the State is unlawful in the sense of being contrary to the Convention. At this point a corresponding obligation arises to repair the injury.
5. As far as a judicial declaration of a violation as a form of just satisfaction is concerned, it is true that the ILC has commented that it is “one of the most common modalities of satisfaction provided in the case of moral or non-material injury to the State” (see commentary on Article 37 of the Draft Articles, § 6). At the same time, it is important to note in what specific factual context this practice of international courts and tribunals was established. The ICJ judgment in the Corfu Channel case is the main authority for this approach. However, the ICJ ruled that the declaration of a violation by the British Navy was “in itself appropriate satisfaction” in a situation in which Albania had not sought any other form of reparation (see Corfu Channel, Merits, ICJ Reports 1949, p.35). The ILC stated as follows: “However, while the making of a declaration by a competent court or tribunal may be treated as a form of satisfaction in a given case, such declarations are not intrinsically associated with the remedy of satisfaction. Any court or tribunal which has jurisdiction over a dispute has the authority to determine the lawfulness of the conduct in question and to make a declaration of its findings, as a necessary part of the process of determining the case. Such a declaration may be preliminary to a decision on any form of reparation, or it may be the only remedy sought” (see commentary on Article 37 of the Draft Articles, § 6). It should also be pointed out that, while noting the long-established practice of using satisfaction as a remedy, the tribunal in the “Rainbow Warrior” arbitration drew the following distinction: “This practice relates particularly to the case of moral or legal damage done directly to the State, especially as opposed to the case of damage to persons involving international responsibilities” (see the “Rainbow Warrior” case, UNRIAA, vol. XX, paragraph 122).
6. To sum up, considering that Article 41 indeed addresses the competence of the Court to determine the remedy for a violation, where a human rights court, in a dispute between a State and an individual, establishes a violation and where the individual concerned, an injured party, has claimed damages, the declaration that a finding of a violation is sufficient satisfaction does not answer that claim. It may well be that the Court considers that the compensation sought is unjustified and thus decides not to award it. The Court should therefore say exactly that. The finding of a violation will remain and will not go away with the decision not to make an award in respect of damage. These will be very rare cases and there might still be remedies available at domestic level. I therefore consider that the Court needs to disentangle its language in situations in which it does not consider it appropriate to make an award for damages.
CONCURRING OPINION OF JUDGE POWER-FORDE
I voted with the majority in this case and wish to add the following.
I understand and share many of the views expressed by Judge Villiger in his partly dissenting opinion. However, what tipped the balance for me in voting with the majority was the Court’s confirmation, in this judgment, that Article 3 encompasses what might be described as “the right to hope”. It goes no further than that. The judgment recognises, implicitly, that hope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading.
CONCURRING OPINION OF JUDGE MAHONEY
1. I unreservedly subscribe to the conclusions and reasoning of the judgment of the Grand Chamber in the present case (“GCJ”). I would, however, like to add some further words on the questions of the applicability of and compliance with Article 3 in relation to whole life prisoners.
2. The following comments on applicability concern:
- the requirement to be read into Article 3 whereby life sentences must be “reducible”; and
- the moment in time when, to use the language of the Chamber judgment (“CJ”) in the present case, “an Article 3 issue” can be said to arise in regard to that implicit requirement.
For the development of the reasoning, it is perhaps easier to begin with the second of these two points.
1. The timing
3. In its judgment (at CJ § 92 in fine - as cited in GCJ § 87), the Chamber expressed the test for the applicability in time of Article 3 in relation to the applicants’ complaints as being that an Article 3 issue would only arise when it could be shown that: (i) the individual prisoner’s continued imprisonment could no longer be justified on any legitimate penological grounds; and (ii) the sentence was irreducible in law and in practice.
4. It is of course true that, in relation to prisoners, Article 3 applies only to punishment or ill-treatment that attains a certain level of suffering or humiliation going beyond the suffering and humiliation inevitable in all imprisonment (see Tyrer v. the United Kingdom, 25 April 1978, Series A no. 26, § 30) and that a whole life prisoner will not have been subject to any suffering or humiliation attaining that level simply by reason of his or her whole life sentence at the moment of passing of that sentence. The prospect, at the moment of sentencing, of spending the whole of one’s remaining life behind bars is not in itself sufficient to generate suffering or humiliation of the requisite level. As was intimated by the Chamber in its judgment (CJ § 92, quoted at GCJ § 86), defendants convicted of very serious crimes of violence such as murder or manslaughter must expect to serve a significant number of years in prison before they can realistically have any hope of release; and life sentence prisoners, even if they benefit from a possibility of release on parole, must know that there is no guarantee of release being granted in their lifetime.
5. That is not to say, however, that the responsibility of a Contracting State can never be engaged under Article 3 until the person concerned is in a position to claim that he or she is actually undergoing punishment or treatment attaining the prohibited level. As illustrated by the early extradition case of Soering v. the United Kingdom (7 July 1989, Series A no. 161, §§ 88 and 90), the abhorrence of torture and of inhuman or degrading punishment or treatment in democratic society is such that it requires that the responsibility of the State be engaged not only for actual violations of Article 3 but also for measures foreseeably entailing potential violations in the future, so as to prevent such future violations occurring.
6. In the penal context, there is no reason why this preventive aspect of Article 3 should not enter the picture when a convicted criminal is sentenced, depending on the nature of the sentence imposed. To take one illustration of this, if a sentence of imprisonment that is grossly disproportionate by reason of its length is imposed (it being common ground in the present case that such a sentence would violate Article 3 - see GCJ §§ 83 and 102), the person concerned should be immediately entitled to challenge the compatibility of the sentence with Article 3, without being obliged to wait until the proportionate part of the sentence has been served and the gross disproportionality begins to bite. The prohibition of gross disproportionality can be seen to be a preventive requirement of Article 3 that concerns the nature of the sentence the moment it is passed.
7. Similarly, if it can be said that there is inherent in Article 3 a prohibition on irreducible life sentences, this in itself is a preventive requirement that should logically come into play at the moment of sentencing and not later.
8. To that extent, an “Article 3 issue” arises at the moment of sentencing. That issue is evidently not the substantive question of fact (stated by the Chamber as the first limb of its test - see § 3 above in this separate opinion) whether, for the particular prisoner concerned, the circumstances have so exceptionally evolved that the balance of penological justifications has shifted to the point where continued detention could be claimed by the prisoner to involve inhuman and degrading treatment or punishment contrary to Article 3. That point may in all likelihood never be reached in practice, as the applicants in the present proceedings themselves conceded (see GCJ § 131). What arises on sentencing is the issue of a general character going to the very nature of the sentence imposed, namely whether the sentence as imposed complies with Article 3 in meeting the preventive requirement of reducibility. This issue is quite distinct from the subsequent issue going to the aleatory circumstances of the ensuing execution of the sentence in the particular case.
9 As I read the Chamber’s test for the applicability of Article 3 set out above, it brings together two distinct requirements under Article 3 that arise at different points in time, one being a procedural requirement (as the three dissenters in the Chamber, Judges Lech Garlicki, David Thór Björgvinsson and George Nicolaou, described it in their separate opinion) or a preventive requirement concerning the nature of the sentence (as I have expressed it), the other being a substantive requirement concerning the actual conditions of the serving of the sentence.
2. The requirement of reducibility
10. The Grand Chamber’s judgment (GCJ §§ 104-118) explains - at some length - why it is that Article 3 is to be interpreted as requiring reducibility of life sentences, “in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds” (GCJ § 119).
11. In stating reducibility of a life sentence to be a requirement of Article 3, the judgment does not take the case-law in a new direction or impose a new obligation on the Contracting States; rather it takes up principles already enounced in the previous case-law, notably in the Grand Chamber’s judgment in Kafkaris v. Cyprus ([G.C.], no. 21906/04, ECHR 2008-...). The Court of Appeal in the 2009 case of Bieber (summarised, with extracts, at GCJ §§ 47-49) deduced the principle of reducibility from the Kafkaris judgment:
“It seems to us that the Court [in Kafkaris] considered that an irreducible life sentence raises an issue under Article 3 in circumstances where it may result in an offender being detained beyond the term that is justified by the legitimate objects of imprisonment. This is implicit in the fact that no issue under Article 3 appears to arise provided that there is, in law and in practice, a possibility of the offender being released, even though it remains possible, or even likely, that no release will be granted in his lifetime. The essential requirement appears to be the possibility of a review that will determine whether imprisonment remains justified.” (§ 39 of the Court of Appeal’s judgment, quoted at GCJ § 47)
12. The Chamber in the present case, in putting as its second condition for an Article 3 issue to arise that the sentence should be irreducible in law and in practice (see § 3 above), was likewise re-affirming reducibility as an inherent requirement of Article 3, albeit a requirement that, in its view, could only be invoked by a life prisoner at the hypothetical moment in time, which might never come, when he or she could claim that, contrary to Article 3, his or her continued imprisonment could no longer be justified on legitimate penological grounds.
13. What may be said to be a development of the case-law in the present case is that the Grand Chamber’s judgment specifies, in a manner differing from the approach taken by the Chamber in its judgment, the moment when an issue may arise under Article 3 as to compatibility of a life sentence with the requirement of reducibility.
14. The Court of Appeal in Bieber “[did] not consider that a whole life term [under English law] should be considered as a sentence that is irreducible”, because the Secretary of State’s statutory power to release (namely the discretionary power under section 30(1) of the 1997 Act to order a life prisoner’s release on licence on compassionate grounds in exceptional circumstances - see GCJ §§ 42-44), read together with the duty incumbent on the Minister under section 6 of the Human Rights Act to comply with the Convention, and notably with the requirements of Article 3, in the exercise of that statutory power, would enable the release of a whole life prisoner if ever the position were reached where his or her continued imprisonment would amount to inhuman or degrading punishment or treatment (§§ 48-49 of the Court of Appeal’s judgment, quoted above at GCJ § 49). As noted above and, more importantly, in the Grand Chamber’s judgment (GCJ § 111), the balance between the various penological justifications for life imprisonment (punishment, deterrence, protection of the public and rehabilitation) are susceptible of shifting with the passage of time, such that in exceptional circumstances the point may be reached where it would constitute “inhuman or degrading treatment or punishment”, contrary to Article 3, to maintain the prisoner in continued detention.
15. As emerges from the Court of Appeal’s judgment in Bieber, compliance with this Article 3 requirement of the continuance of a penological justification for the detention would be a relevant consideration that the Secretary of State would be obliged to take into consideration in the exercise of his statutory power to release. Indeed, to quote the Government’s own words, “as a matter of English law, when exercising the power the Secretary of State must act compatibly under the Convention” (see the Government’s written observations before the Grand Chamber, § 68 - underlining supplied); with the consequence that, if the continued detention of a whole life prisoner is shown to amount to inhuman or degrading treatment, contrary to Article 3, the Secretary of State would not merely be free but would be duty-bound to exercise his power to release the prisoner. The Government have acknowledged that whole life prisoners such as the applicants could contend, in an application to the Secretary of State for exercise in their favour of his power of release under the 1997 Act, that their continued detention is not justified on any penological grounds; and any negative decision by the Secretary of State would be amenable to judicial review and a challenge on Article 3 grounds (see the Government’s written observations, § 66).
16. On such a reading of the applicable national law, the Human Rights Act, taken together with the Secretary of State’s statutory power to release on compassionate grounds, would enable whole life prisoners to be released if the issue were concluded in their favour, either by the Secretary of State on the initial examination of their application for exercise of the power to release on compassionate grounds or on judicial review by the national courts applying the Convention so as to quash the Minister’s negative decision. Despite the apparently exhaustive wording of Prison Service Order 4700, the instrument issued under the authority of the Secretary of State, in which the Minister’s policy regarding the possible release of whole life prisoners is set out (see GCJ § 43), life prisoners would have open to them the possibility to make representations to the Secretary of State to exercise his power of release “on compassionate grounds” under the 1997 Act for reasons other than terminal illness and physical incapacity.
17. The Grand Chamber’s judgment (at GCJ § 125) recognises that, on the above reading of section 30 of the 1997 Act, there would thus, in principle, be available to whole life prisoners under English law a review mechanism of the kind required by Article 3, a mechanism giving them what has sometimes been referred to as a “faint hope” of release and, what is more, a guarantee that, notwithstanding their whole life sentence, they should not be imprisoned beyond the term that is justified by the legitimate penological purposes of imprisonment.
18. The problem is not only that the official instrument stating the Secretary of State’s policy in relation to his exercise of the discretionary power of release under section 30(1) of the 1997 Act, namely Prison Service Order 4700, passes over in silence the possible avenue of seeking release open to whole life prisoners through reliance on the Human Rights Act, but also that the criteria set out in the Prison Service Order are framed in exhaustive and restrictive terms, as being the only grounds in which the discretion will be exercised. Although as a matter of English law, the restrictive terms of that administrative, “policy” text are overridden by the Secretary of State’s duty to act compatibly with the Convention when exercising his discretion, the specific instrument on the statutory power to release “on compassionate grounds” is less than transparent. As the Grand Chamber puts it in its judgment (at GCJ § 128 in fine above), “the Prison Service Order is liable to give to whole life prisoners - those directly affected by it - only a partial picture of the exceptional circumstances capable of leading to the exercise of the Secretary of State’s power under section 30”.
19. The Government had argued in their pleadings (at § 68 of their written observations) that it “would be apparent at the outset of any sentence” that “if any Article 3 issue arises [in the sense of disappearance of penological justification for continued detention] a mechanism exists by which the prisoners may be released, and the operation of that mechanism is subject to review by the courts”. In view of the lack of clarity as to the current state of the domestic law concerning the conditions on which the prospect of release for whole life prisoners exists, the Grand Chamber was unable to accept that submission (see GCJ § 129). The Court’s conclusion may be paraphrased as being that the uncertain and ambiguous relationship between the various sources of the applicable domestic law prevents the applicants’ life sentences, “at the present time”, from being regarded as reducible in law and in practice for the purposes of Article 3 (see GCJ § 130).
III. Concluding remarks
20. The main aspects of the reasoning in the Grand Chamber’s judgment that I would want to pinpoint are the following:
- Reducibility (in the sense of the existence of a mechanism affording a not wholly unreal prospect of eventual release) must exist, in law and in practice, at the time of sentencing in order for the requirements of Article 3 to be met in relation to the nature of the sentence passed.
- In principle, in view of the reasoning of the Court of Appeal in Bieber as to the effect of the Human Rights Act and of Article 3 on the exercise of the Secretary of State’s exceptional power to release under the 1997 Act, such a mechanism could be said to exist under English law in the form of: (a) the possibility for the life prisoner to apply to the Secretary of State for exercise of the statutory power of release on Article 3 grounds (disappearance of penological justification); and (b) the Secretary of State’s duty to release if such grounds are shown.
- There was, however, a lack of sufficient clarity existing at the relevant time as to the wider nature of the criteria on which the statutory discretion to release whole life prisoners must, as a matter of English law, be exercised. For this reason, the present applicants, at the moment of their sentencing, could not be expected to harbour the requisite prospect - “faint hope” - of release.
- As consequence of this lack of sufficient clarity in the manner of operation of the applicable domestic law, the whole life sentences in issue, when imposed on the applicants, cannot be regarded as having been “reducible” for the purposes of Article 3; and there has been what the dissenting minority in the Chamber called a procedural breach of Article 3.
- However, as the Chamber (majority) held, none of the applicants has demonstrated on the particular facts, or even argued, that, at present, their continued detention serves no penological purpose and, consequently, no substantive issue under Article 3 arises as yet.
21. The respondent Government are of course free to choose the means whereby they will fulfil their international treaty obligation under Article 46 of the Convention to “abide by” the Grand Chamber’s judgment in the present case. Greater clarity in the Prison Service Order (see GCJ §§ 128-129 above) may be one option, for example. Another possible option - in terms of means for ensuring the reducibility required by Article 3 - may be inferred from the passages in the Grand Chamber’s judgment analysing the comparative and international law materials adduced before the Court. As the Court observed, these materials show clear support for the institution of a dedicated mechanism, integrated within the sentencing legislation, providing for a review of life sentences after a set period, usually after twenty-five years’ imprisonment, with further periodic reviews thereafter (see GCJ §§ 117, 118 and 120 above; see also GCJ § 130). Indeed, prior to 2003 the English sentencing system itself included provision for such a review, albeit one that was carried out in the first place by the executive (see GCJ §§ 46 and 124 above).
PARTLY DISSENTING OPINION OF JUDGE VILLIGER
I respectfully disagree with the majority of judges in this case.
As a lawyer I can of course agree that an irreducible sentence raises different and at times highly problematic issues. But as a judge bound by the Convention, I am obliged to analyse this issue solely through the prism of Article 3.
My disagreement stems from the method which this judgment chooses to examine the alleged breach of Article 3 of the Convention, namely that the irreducible sentence imposed on the applicants runs counter to this provision as such.
The Court has a time-honoured case-law as to the standards and conditions of applying Article 3, starting with its 1978 judgment in Ireland v. the United Kingdom (18 January 1978, § 162, Series A no. 25). In that case and in literally countless subsequent cases it has affirmed that whether or not an issue arises under Article 3 will depend on all circumstances of the individual case; that this provision contains different thresholds (namely “inhuman”, “degrading” and “torture”); that a minimum of severity has to be reached to attain the first threshold; and that the assessment of this minimum will be relative (see for a more recent case M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 219, ECHR 2011).
In the present judgment, the Court essentially finds a violation of Article 3 as there is currently no prospect of release and no possibility of review of the three applicants’ sentences. It adduces, inter alia, the arguments that the balance of the justification for detention may shift over time (at § 111 of the judgment); that whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable (at § 112); and implicitly that an irreducible sentence runs counter to human dignity (at § 113). The crucial point is that the judgment takes the position that the question of an irreducible sentence’s compatibility with Article 3 must be analysed from the perspective of the moment when a prisoner begins serving that sentence. Thus, at § 122 of the judgment it is stated:
“[A] whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3.”
In my opinion, this manner of analysing the complaints does not comply with the standards and conditions of Article 3 of the Convention as developed in the Court’s case-law for the following reasons.
To begin with, I note that in the judgment (for example, at §§ 121 et seq.) reference is made to the “standards” and “requirements” of Article 3. However, nowhere in the judgment are these standards and requirements explained, analysed and applied.
Second, the judgment assesses the situation for all prisoners serving whole life orders, thus in fact providing for a generalised interpretation of Article 3. However, Article 3 would normally require an individualised assessment of each applicant’s situation.
Third, by taking a prospective view of the prisoners’ situation - extending to many decades ahead in the prisoners’ lives (and also after the Court’s examination of the present case) - the judgment provides for an abstract assessment and fails to undertake a concrete examination of the each applicant’s situation at the time when it is examining the case. How can the Court know what will happen in ten, twenty or thirty years?
Fourth, this general and abstract application of Article 3 to the present case does not, in my view, square easily with the principle of subsidiarity underlying the Convention, not least when, as the judgment itself recognises, issues relating to just and proportionate punishment are the subject of rational debate and civilised disagreement (§ 105 of the judgment).
Finally, and not least, this manner of proceeding overlooks the different thresholds in Article 3. The judgment makes no reference as to whether the minimum severity of treatment has been attained in respect of the applicants in order to bring about the application of Article 3. Neither is there a qualification as to whether the irreducible prison sentence amounts to inhuman or degrading punishment, or indeed to torture. Reference is made solely to “Article 3” (see, for example, at § 122 of the judgment).
This manner of analysing Article 3 cannot, in my view, do justice to the cardinal importance of this provision within the Convention, as interpreted by the Court in its case-law.
I submit that, had the standards and requirements of the Court’s case-law as to Article 3 been applied, the following conclusions would follow:
Clearly, the considerations in the judgment as to the problematic issues of irreducible sentences are relevant and valuable, but they have to be examined individually. Furthermore, in the context of such an individual examination, it is not the circumstances which existed at the outset of the sentence which are relevant, but rather the concrete circumstances which exist at point in time when the Court comes to examine the case. Indeed, it is only an examination at this point of time which would enable the Court to do justice to the length of prison time which each applicant had already served. Very pertinently, the judgment states at § 111:
“the balance between (the) justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence.”
However, the judgment does not appear sufficiently to examine the shift, if any, in the justifications for detention in respect of the various applicants. In fact, from its perspective the judgment could not have examined the shifting of justifications.
In the present case, the first applicant, Mr Vinter, has been serving his sentence for just over five years, the second applicant, Mr Bamber, for nearly twenty-seven years, and the third applicant, Mr Moore, for nearly seventeen years.
In my opinion, in light of my considerations above as to the required individual and concrete examination of the case, Article 3 does not come into play as regards the first applicant (just over five years) and the third applicant (nearly seventeen years).
The second applicant (twenty-seven years) is approaching a borderline situation. However, bearing in mind the reasons for his conviction and sentence, i.e., multiple murders, I would consider that the justifications for detention have not (yet) shifted and that the primary justification for his detention, namely punishment, remains decisive. In this respect I am satisfied that, in 2008 and 2009 respectively, the High Court and the Court of Appeal examined this particular point and concluded that the grounds of punishment and deterrence continued to prevail in respect of the second applicant (see § 23 of this judgment).
For these reasons, I have voted against the finding of a violation of Article 3 of the Convention.
 An English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed.), Duke University Press, Durham and London, 1997 at pp. 306-313.