PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

1. On one point the judgment does not reflect my own opinion, which I should like to set out below .

2. Let us briefly recapitulate the facts of the case, which received particularly widespread media coverage. An eleven - year -old child was abducted and was found dead in horrific circumstances in 1964. The applicant was taken into police custody and made a confession but retracted it almost a year later . The Assize Court convicted him of murder in 1964 . It found that the offence could not be characterised as premeditated murder and that there were mitigating circumstances. The applicant was accordingly not sentenced to death but to life imprisonment. The law in force at the time did not provide for a minimum term that had to be served before life prisoners became eligible for parole . Lastly, since retracting his initial confession , the applicant has continually maintained his innocence. He applied for a retrial i n 1971 and 1974, unsuccessfully on both occasions.

3. The applicant applied several times to be released on licence from 1979 onwards but without success. His release was not granted until 2005, by the Post-sentencing Court, whose judgment was upheld by the Post-sentencing Division of the Co urt of Appeal. The applicant was accordingly released on 3 October 2005, several months after the public hearing on the merits before the Court, having been imprisoned for over forty- one years .

4. The two complaints declared admissible by the Court relate to A rticle 5 § 1 and Article 3 of the Convention, which respectively safeguard the right to liberty and security and prohibit torture and inhuman and degrading treatment . In the present judgment the Court held that neither of these two Articles had been breached . The finding that there was no violation of A rticle 5 § 1 is where I disagree with the majority of my colleagues . I believe that there was a violation of that A rticle.

5. First of all, it is indisputable that the applicant ’ s conviction and detention were from the outset “lawful” within the meaning of A rticle 5 § 1 ( a). He was convicted by an assize court, whose competence and proper conduct of the proceedings have not been disputed , in a judgment that had become final, and his applications for a retrial were refused. Even though he protests his innocence, there is no cause to reverse the legal presumption of guilt attaching to res judicata .

6. It does not necessarily follow that the applicant ’ s continued detention until 2 005 satisfied the requirements of A rticle 5. For a long time the Court has held, quite logically, that a prolonged period of detention should be subject to the same requirement of lawfulness (and hence compatibilit y with the Convention) as the initial detention. In other words , a person who was detained lawfully can, as circumstances change over time, become a person whose continued detention is unlawful ( see , mutatis mutandis , in relation to a person of unsound mind , Van Dro o genbro eck v. Belgium , judgment of 24 June 1982, Series A no. 50; see also Weeks v. the United Kingdom , judgment of 2 March 1987, Series A no. 114, and, more recently, the Grand Chamber ’ s judgment in Stafford v. the United Kingdom , no. 46295/99, ECHR 2002-IV). Without there being any need to reclassify the complaint which the applicant brought under the first paragraph of Article 5, that pa ragraph should be read in the light of the fourth paragraph of the same Article, concerning a person ’ s right to take proceedings by which the lawfulness of his detention (or continued detention) may be decided speedily by a court .

7. Before considering whether the applicant ’ s continued detention was lawful, I need to dismiss two objections which occurred to me and caused some hesitation in my mind. Firstly, is the Court not running the risk of acting as a court of third or fourth instance if it reviews domestic judgments refusing an application for release on licence? Secondly, and more importantly, does the fact that parole is not a right allow the national authorities a discretionary power not amenable to review at European level?

8. As regards the first point , it would be tempting to reply that before the Law of 15 June 2000 came into force, the power to grant or refuse release on licence, at least for long-term prisoners, was vested in the Minister of Justice . The Court ’ s case-law is suspicious about the exercise of such power by a member of the executive ( see the Grand Chamber ’ s judgments of 16 December 1999 in T. and V. v. the United Kingdom [GC], nos. 24724/94 and 24888/94, ECHR 1999-IX). But the counter-argument does not apply here because, as is pointed out in paragraph 65 of the judgment, the applicant considered his continued detention to be arbitrary specifically on account of the refusal of his application for release by the specialist courts dealing with post-sentencing measures , which were assigned jurisdiction by virtue of the Law of 15 June 2000 ( amended in this respect by the Law of 9 March 2004).

The question therefore remains intact . However, I ultimately consider, for two r eas ons, that our Court has the right and duty to review decisions by such courts. Firstly, with regard to Article 5, which to a certain extent departs from the subsidiarity principle, the Court has always held that, since deprivation of liberty is c ompatible with the Convention only if it complies with domestic law, it is required to review such compliance itself without simply leaving the matter to the national courts . Secondly, the reasons given by the courts can easily become stereotyped or irrelevant and must therefore be reviewed, as in the case of continued pre-trial detention ( see , for an early example, Neumeister v. Austria , judgment of 27 June 1968, Series A no. 8 , and the subsequent settled case-law ). Admittedly , the Court is even more demanding when it comes to pre-trial detention – be cause of the presumption of innocence – but it is becoming increasingly so in relation to continued detention (o r , indeed , de cisions to re-detain ), as is shown by the Stafford judgment cited above .

9. As regards the second issue , it is true that in principle parole is not a right ( although questions must be asked as to whether a truly irreducible sentence, without any hope or prospects other than that of dying in prison, is not a substitute for the death penalty – which has nonetheless been abolished in almost all Contracting States pursuant to Protocol N o. 6 – and fundamentally incompatible with A rticles 2 and/o r 3 of the Convention). However, this is in no way the approach taken by the respondent State, either in its domestic law, since parole has existed in France for well over a century, or in the practice it applied in the present case, since the applicant ’ s applications for release on licence were always examined by the relevant authorities in turn and were refused on various grounds but never on the ground that the applicant had no such right – parole differs in this respect from the granting of a presidential pardon – or, lastly, in its written and oral submissions before the Court. Should the Court then of its own motion construct a theory to the effect that decisions on parole are both discr e tion ary and unreviewable? I would be reluctant to do so , not only because there are already instruments laying down procedures and criteria for granting or refusing release ( the fact that no such right exists means only that it will not automatically be granted to anyone who requests it, and not that it can be refused arbitrarily ), but also because the right to liberty is too essential for our Court to make “real” life imprisonment an automatic and unreviewable process. I would add, lastly, that if the purpose of the legislation was to increase the role of the courts in dealing with applications for release, it would be ludicrous for the European Court of Human Rights to fly in the face of this trend by refusing to review the relevance, adequacy and lack of arbitrariness of the grounds on which the appropriate courts ’ decisions were based.

10. Yet in the present case it seems to me precisely – and I say this without any dis respect – that the grounds on which the courts refused the applicant ’ s application in 2 001 ( see paragraphs 24 - 30 of the judgment ) were neither very relevant nor wholly adequate and did not avert all risk of arbitrariness . I would first point out that the 1999 expert report was generally in favour of the applicant ’ s release, that the opinion of 7 February 2000 by the judge responsible for the execution of sentences was clearly in favour, and that in February 2001 the sentence enforcement board gave a unanimous opinion in favour of granting his application for release on licence. These factors are not decisive but they are impressive .

11. However, among the grounds on which the Regional Parole Court based its decision was the fact that the applicant “ denie [d] having committed” the extremely serious offence of which he had been convicted; it also mentioned his dangerousness and the risk of his reoffending, which had not been ruled out by the psychiatric experts who had examined him, albeit “in 1965, 1984, 1989 and most recently 1999”; and lastly, it considered that he could not be said to be “making ‘ serious efforts to readjust to society ’ ... in spite of a coherent resettlement plan in terms of accommodation and employment”.

The National Parole Court ’ s decision on appeal – there being no possibility at the time of a subsequent appeal to the Court of Cassation – was based, among other things, on the fact that an order had been made for the liquidation of the assets of the person who had offered the applicant accommodation and employment (on this point, paragraph 29 of the judgment states that the applicant ’ s friends had attested that their offers of accommodation and employment, made repeatedly over a period of seventeen years, were valid “although their bakery was currently being sold to a private company founded by their children (a separate business registered at their home address)”).

12. If we compare all these grounds to those on which the new courts competent in such matters reached diametrically opposite conclusions four years later, we may well wonder whether they were relevant and sufficient . I n particul a r, the fact that the applicant denied having committed the murder in no way precludes his release according to the law. A rticle 729 of the Code of Criminal Procedure, as in force at the time , referred only to serious efforts to readjust to society; however, the first-instance court considered that the applicant ’ s refusal to undergo psychological counselling invalidated any such efforts, whereas the appellate court accepted the validity of his efforts but refused to take them into account for commercial law-related reasons which were quite unjustified in the view of the people who were prepared to assist the applicant ’ s reintegration . Lastly, if those grounds had been reasonable in 2 001, why were they dismissed in 2 005? Because the applicant ’ s release on licence, deemed unadvisable after thirty-seven years of im prison ment , had become necessary after forty-one years, apparently without any new circumstances arising in the meantime ? I must admit that I do not find that very convincing .

13. It is true , and this argument is not insignificant , that in the background there is the risk of reoffending, which does indeed appear to have been the real reason in 2 001 ( in this connection , the fact that the regional court relied on several expert reports, one of them dating back to 1965, scarcely seems relevant ). But as was observed by the judges who allowed the applicant ’ s application in 2 005, this risk was limited , and “ a zero risk of reoffending is so rare” . In my opinion, there is unfortunately no such thing as zero risk, but if we take that approach, then we should never release prisoners on licence: life sentences would always be served for a whole-life term, and determinate sentences would always be served in full . Potential victims would perhaps be better protected ( except where prisoners escaped) – but would transforming prisoners into wild beasts or human waste not mean creating further victims and substituting vengeance for justice ?

I am just asking.