PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE MULARONI

(Translation)

I agree with the conclusion of the majority that there has been no violation of Article 5 § 1 (a) of the Convention.

I consider that the parole procedure in France is discretionary in that it excludes any possibility of automatic release. In my opinion it does not entail any “right” to parole for offenders, since the judicial authorities always remain free to refuse it ( see, in particular, para graph s 40 and 48 of the judgment ).

That being so , while I concur with the majority ’ s observation that significant progress is still required on the part of the respondent State to encourage the return of prisoners to the community through personalised assistance programmes involving supervision from the start of their detention ( see para graph 70 of the judgment ), I consider that the applicant ’ s imprisonment may be regarded as “the lawful detention of a person after conviction by a competent court”, even after 2001.

As regards Article 3, I regret that I am unable to agree with either the reasoning or the conclusion of the majority .

The main question to be addressed is whether an irreducible life sentence may be regarded as inhuman and degrading treatment within the meaning of Article 3 of the Convention and thus raise an issue under that Article.

T he Court has previously held in this connection that in special circumstances the execution of an irreducible life sentence might raise an issue under the Convention where there is no hope of entitlement to a measure such as parole ( see the case-law cit e d in para graph 90 of the judgment ). The majority were very quick to conclude that there had been no violation of Article 3 of the Convention on the basis of this case-law. They found that no issue was raised under Article 3 in that from 1979 onwards the applicant had the opportunity to apply for release on licence at regular intervals and had the benefit of procedural safeguards ( see para graph 92 of the judgment ). In the present case I consider that, while this factor may be decisive in relation to Article 5, it is not in relation to Article 3 of the Convention, in so far as the applicant complained that he “ had not been effectively entitled to any adjustment of his sentence in forty years of detention” . His situation was quite different from that of the applicants mentioned in para graph 90 of the judgment . T he Court ’ s task here is not to consider i n abstracto what might happen in future, but to assess in concreto whether the refusal to adjust the terms of the applicant ’ s sentence in any way after almost forty years of detention infringed Article 3 of the Convention.

I consider that the applicant ’ s complaint should have been examined from a different perspective .

Firstly, I would observe that, in accordance with a principle acknowledged at European level and enshrined in many constitutional instruments, sentences not only have a punitive purpose but must also encourage the reform and social reintegration of those convicted . As can be seen from para graph 47 of the judgment , there have been considerable developments over the years with regard to life sentences . Such sentences are provided for in the legislation of most Council of Europe member States but do not necessarily mean lifelong imprisonment for the convicted person . Most countries ’ laws provide for the possibility of applying for a review of life sentences and of granting release after a certain number of years of imprisonment. Even i n France, the legislation on long-term and life imprisonment has changed significantly over the course of time ( see para graph s 34-40 of the judgment ).

Secondly , since the 1970s the Council of Europe has made consistent efforts to encourage the gradual return of life prisoners to the community ( see, in particular, para graph s 43-49 of the judgment ).

Thirdly , making the application of measures to adjust sentences conditional on a zero risk of reoffending would in practice mean almost never granting parole, despite the fact that it has existed in France since 1885. With regard to the intentions of the French legislature in terms of relaxing the conditions of lengthy sentences, I consider it useful and pertinent to refer to para graph 42 of the judgment , which cites the relevant passages of the report by the National Assembly commission of inquiry (no. 2521, 28 June 2000 ), “France faced with its prisons”, and the report by the Senate commission of inquiry on detention conditions ( no. 449, 28 June 2000 ), “Prisons: a humiliation for the Republic” .

I would also point out that the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment, including those convicted of violent crimes ( see Mastromatteo v. Italy [GC], no. 37703/99, § 72, ECHR 2002-VIII).

I acknowledge without hesitation that societies are entitled to protect themselves from dangerous offenders . But I would add that dangerousness is in my view the only factor that could have justified the refusal in 2 001 to relax the conditions of the applicant ’ s sentence after such a lengthy period of detention . In that connection, I agree with the national courts ’ observation in 2 005 that “a zero risk of reoffending is so rare” (para graph 33 of the judgment ). It is very difficult for experts to conclude that there is a zero risk of reoffending, since human behaviour is sometimes unpredictable . Should the mere fact that the experts are unable to exclu d e with 1 00% certainty the risk of reoffending be sufficient to justify refusing to adjust a convicted person ’ s sentence in any way at all after forty years of imprisonment? As the Post-sentencing Court rightly pointed out in 2 005, a refusal of the applicant ’ s application for release on licence would have amounted to “ his virtually permanent exclusion from society, which does not seem justified in view of his resettlement plan and the limited nature of the risk of his reoffending” ( ibid. ).

The Court has made clear in para graph 65 of the judgment that its examination of the appl icant ’ s detention concerns the period from 2001 onwards . My question is therefore why the national courts reached the above conclusion, which I fully endorse, only in 2 005 and no t in 2 001, when they had access to an expert report dating back to 1 999 whose findings had been very positive towards the applicant .

After stating that “ the previous experts had already found that there did not appear to be a risk of a further offence involving a child and that only the risk of a surge of paranoia and protest had held them back ” , the 1999 expert report concluded as follows : “ This assessment therefore focuses entirely on aspects of his personality from a strictly psychiatric and forensic standpoint. And from that standpoint, there do not currently seem to be any formal obstacles to his release” (para graph 22 of the judgment ). On 7 February 2000 the judge responsible for the execution of sentences strongly recommended the applicant ’ s release on licence ( see para graph 23 of the judgment ). On 5 February 2001 the sentence enforcement board issued a unanimous opinion in his favour . The applicant ’ s resettlement and probation officer also expressed a very positive opinion ( see para graph 25 of the judgment ). However , the regional and national parole courts refused his application for release on licence in July and November 2001 respectively ( see para graph s 27-30 of the judgment ).

I n my view it is almost impossible to maintain that the expert report submitted in 2004 was more favourable towards the applicant than the 1999 one . In 2004 the experts were unable to “ conclude with absolute certainty that he will not pose a significant danger in the community, in the psychiatric sense of the term ” (para graph 31 of the judgment ). However , the applicant was released on licence with effect from 3 October 2005 , subject to certain specific requirements .

While taking note of this very positive development in the applicant ’ s situation, I consider that the refusal to relax the conditions of his sentence from 2001 until 2 005 gave rise to a violation of Article 3 of the Convention.