DISSENTING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES BRATZA, GYULUMYAN AND JEBENS

1. I voted against striking the application out of the list of cases because in my view the case reveals special circumstances affecting respect for the rights guaranteed by the Convention that required the Court to continue the examination of the case.

2. Pursuant to Article 37 § 1 (c) in fine of the Convention “the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”

3. The mere fact that the domestic law has changed (see paragraph 51 of the majority judgment) is in my view irrelevant. Interpreting Article 37 § 1 (c) in fine :

“[t]he Court has repeatedly stated that its ' judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties ' (see Ireland v. the United Kingdom, cited above, p. 62, § 154, and Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 31, § 86). Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States”. [1]

4. In the present case, the Court could have taken a decision to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States. After all, a panel of five judges of the Grand Chamber accepted the referral of the case, taking the view that it met the criteria set out in Article 43 of the Convention. According to this provision, only an “exceptional case” raising “a serious question affecting the interpretation or application of the Convention ... or a serious issue of general importance” can be re ‑ examined. Based on the fact that it was referred to the Grand Chamber, I think there is a strong presumption in favour of considering the case as one which required the Court to continue the examination of the application, notwithstanding the fact that the applicant died in the meantime.

5. Nor do I believe that the Court would have been in any way hampered in its further consideration of the case by the death of the applicant and his lawyer. The case had been fully argued by the parties in both written and oral submissions before the Grand Chamber and was ready for determination.

6. In the Chamber judgment of 11 April 2006, the Court found no violations of Article 5 § 1 (a) and Article 3 of the Convention.

7. By re-examining the case, the Grand Chamber would have had the opportunity to elaborate under Article 5 on the difficult question of the “lawfulness” of the applicant ' s continued detention after more than four decades of incarceration, in particular taking into account the important aspect of reintegration into the community. This distinguishes the present case from the case of Kaf karis [2] , r eferred to in paragraph 51 of the majority judgment. In addition, in Kafkaris , the problem examined under Arti cle 5 § 1 (a) mainly concerned the potential impact of the notice issued by the prison authorities, on the basis of the Prison Regulations in force at the time, sett ing a conditional release date.

8. Moreover, the Court has never had the opportunity to rule on the difficult question of principle as to whether irreducible life sentences are, as such , incompatible with Article 3. I n the case of adults, the Court has not ruled out the possibility that in special circumstances an irreducible life sentence might also raise an issue under the Convention where there is no hope of entitle ment to a measure such as parole. [3] In this context, I would recall that the German Federal Constitutional Court decided, as far back as 1977, that an irreducible life sentence, if there was no hope of early release, would violate the principle of human dignity as enshrined in Article 1 of the German Basic Law, and the constitutio nal principle of proportionality. [4]

9. As regards the complaint under Article 3, the Court did not decide in Kafkaris whether the imposition and execution of an irreducible life sentence were in principle inconsistent with Article 3 of the Convention. As Judge Bratza rightly emphasised in his concurring opinion in Kafkaris :

“ ... the time has come when the Court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in prin ciple inconsistent with Article 3 of the Convention. What amounts to an ' irreducible ' sentence for this purpose has been variously explained by the Court as being a sentence for the duration of the life of the offender with no ' possibility ' or ' hope ' or ' prospect ' of release. [”] [5]

10. There is no identity, factual or otherwise, between the issues in the cases of Kafkaris and Léger . Therefore, I cannot follow the majority view expressed in paragraph 51 of the judgment that, in Kafkaris , the Court dealt with similar issues. Indeed, in the ins tant case, the Court had the be nefit of hindsight, a fact which distinguishes it from Kafkaris . The applicant, whose “prospects” or “hopes” of release were largely frustrated, remained in prison for more than 41 years. Given the consensus at European level as to the need to envisage and prepare for the resettlement of long-term prisoners, and State practice in this respect, I think it very unlikely that a paral lel case raising similar issues will be brought before the Court in the near future.

[1] . Karner v. Austria , no. 40016/98, § 26, ECHR 2003 ‑ IX.

[2] . Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008-...

[3] . Kafkaris , cited above , § 97; see also Nivette c. France ( d e c .), n o. 44190/98, ECHR 2001 ‑ VII ; Einhorn v. France ( dec .), no. 71555/01, ECHR 2001 ‑ XI ; Sawoniuk v. the United Kingdom ( dec .), no. 63716/00, ECHR 2001 ‑ VI ; Partington v. the United Kingdom ( dec .), no. 58853/00, 26 June 2003; Stanford v. the United Kingdom ( dec .), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom ( dec .), no. 67385/01, 22 May 2003 .

[4] . German Constitutional Court , 21 June 1977, BVerfGE , 45, 187; EuGRZ , 1977, 267. See also P. Bon and D. Maus , Les grandes d é cisions des cours constitutionnelles européennes, (Coll. Grands arrêts ), Paris, Dalloz , 2008, no. 32, note Fromont .

The German Constitutional Court decided, in its ruling of 21 June 1977, as follows:

“1. Die lebenslange Freiheitsstrafe für Mord (§ 211 Abs. 1 StGB) ist nach Ma  nahme der folgenden Leitsätze mit dem Grundgesetz vereinbar.

2. Nach dem gegenwärtigen Stand der Erkenntnisse kann nicht festgestellt w e rden, da  d er Vollzug der lebenslangen Freiheitsstrafe gemä  den Vorschriften des Strafvollzugsgesetzes und unter Berücksichtigung der gegenwärtigen Gnadenpraxis zwangsläufig zu irrepar ablen Schäden psychischer oder p hysischer Art führt, welche die Würde des Menschen (Art. 1 Abs. 1 GG) verletzen.

3. Zu den Vor aussetzungen eines menschenwürdi gen Strafvollzugs gehört, da  dem zu lebenslanger Freiheitsstrafe Verurteilten grundsätzlich eine Chance verbleibt, je wieder der Freiheit teilhaftig zu werden. Die Möglichkeit der Begnadigung allein ist nicht zureichend; vielmehr gebietet das Rechtsstaatsprinzip, die Voraussetzungen, unter denen die Vollstreckung einer lebenslangen Freiheit s strafe ausges e tzt w e rden kann, und das dabei anzuwendende Verfahren gesetzlich zu regeln.

4. Die Qualifikation der heimtückischen und der zur V erdeckung einer anderen Straftat begangenen Tötung eines Menschen als Mord gemä  § 211 Abs. 2 StGB verletzt bei einer an dem verfassungsrechtlichen Verhältnismä  igkeitsgrundsatz orientierten restriktiven Auslegung nicht das Grundgesetz.”

[”]

[5] . I would like to mention here that in Kafkaris , I voted in favour of finding a violation of Article 3. See the partly dissenting opinion of Judges Tulkens , Cabral Barreto , Fura ‑ Sandström , Spielmann and Jebens .