DISSENTING OPINION OF JUDGE FURA-SANDSTRÖM

(Translation)

1. I do not share the opinion of the majority that there has been no violation of Article 5 § 1 (a) and Article 3 of the Convention. My reasons are set out below.

2. Lucien Léger had to wait forty-one years before being released on licence. Of course, he is not the only convicted person to have been detained for a lengthy period . According to recent statistics, prisoners serving life sentences in France are rarely released on licence (see paragraph 41 of the judgment). However, the question of release on licence is central to the debate on prison overcrowding, which is one of the obstacles to the proper implementation of programmes to promote reintegration and prevent reoffending. Although it is not for the Court to rule on this general problem, the matter is undoubtedly at the heart of the present case.

The only issues which the Court was called upon to address were those raised by the circumstances of the case: did Lucien Léger not satisfy the statutory requirements for being released earlier? And, taken together, do the length of his detention and the apparent unwillingness of the authorities to work towards Lucien Léger ’ s reintegration raise an issue in themselves?

3. Before I express my opinion on these two points, I wish to emphasise that in my mind the examination of the application, as delimited in paragraph 65 of the judgment and, indeed, in accordance with the applicant ’ s point of view, made it too easy to avoid the questions raised by the exceptional length of his detention. In particular, where Article 5 is concerned, the entire period during which the review of sentences was “non-judicial” escapes the Court ’ s scrutiny, as does the question of the power vested in the Minister of Justice (who formerly had responsibility for decisions on parole), which is known to raise an issue under the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, ECHR 2002-IV ) and which by its very nature excludes a number of procedural safeguards to which a convicted person should be entitled.

Article 5 § 1 (a) of the Convention

4. I do not consider it necessary to examine the question of the legality of Mr Léger ’ s detention in the strict sense of the term. What was at stake in the present case was the “lawfulness” of his detention “after conviction by a competent court”, and more specifically his continued detention after four decades of incarceration. In this connection, I find it regrettable that the majority did not place more emphasis on the autonomous meaning of the concept of detention after conviction. Looking beyond appearances, the Court has always held that the “lawfulness” required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (see Winterwerp v. the Netherlands , judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39, and Stafford , cited above, § 64 ); it is required in respect of both the ordering and the execution of the measures involving deprivation of liberty. Furthermore, in other circumstances the Court has held that the causal link between conviction and detention might be broken if a decision not to release were based on grounds that had no connection with the objectives of the legislature or the relevant court or on an assessment that was unreasonable in terms of those objectives (see paragraph 71 of the judgment). Prison sentences are intended not only to protect society and punish offenders but also to prepare them for resettlement (see the decision of the Constitutional Council cited in paragraph 59 of the judgment), and Article 729 § 1 expressly provides that parole is designed to encourage the rehabilitation of convicted prisoners. Recommendation Rec (2003)22 of the Committee of Ministers on conditional release states that “conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community”. The question is therefore whether the national courts took the aim of reintegration sufficiently into account when examining Mr Léger ’ s application for release on licence in 2001, by which time he had been deprived of his liberty for more than thirty - five years, and if not, whether his detention became arbitrary as a result.

5. In particular, was the applicant ’ s reintegration impossible on account of his refusal to acknowledge his guilt? Lucien Léger objected to the fact that the courts dealing with post-sentencing measures took into account his denials of guilt. That factor is clearly apparent in the decision by the Regional Parole Court (see paragraph 27 of the judgment) and, more insidiously, in the decision on appeal (see paragraph 30). It was mentioned in conjunction with Mr Léger ’ s dangerousness, which was not completely ruled out, and his unwillingness to undergo psychological counselling, which was held to be the cause of this continuing risk. These two grounds made it impossible to conclude that the applicant was making “serious efforts to readjust to society” as required by Article 729 of the Code of Criminal Procedure (CCP). It is clear to me that the national authorities are better placed than an international court to assess whether this criterion is satisfied in a particular case; I shall not therefore enter into a discussion of this point. It nevertheless remains to be ascertained how Lucien Léger could have proved that he was fit to return to the community.

However, even assuming that it is acceptable that the burden of proof in such matters should rest with the convicted person himself, which implies that he has to prove that he has reformed – and in the present case there is no indication that the courts took into account the efforts made by the applicant while in detention (Mr Léger was always described as a “model” prisoner) – what is the standard of proof required for the prisoner ’ s efforts to readjust to society to be deemed sufficiently serious? How can this be achieved while imprisoned ? I n my view it is very difficult , if not impossible.

I would observe above all in this connection that the judge responsible for the execution of sentences and the prison authorities were unanimous in concluding that there were no obstacles to the applicant ’ s release on licence (see paragraphs 23 and 25 of the judgment). It therefore seems to me that the reasons given by the appropriate courts to refuse his release in 2001 were irrelevant in relation to the opinions of the various representatives of the judicial, prison and welfare authorities who had been in direct contact with the applicant, yet those opinions were deliberately ignored because the applicant was still regarded as dangerous as a result of his lack of reform in relation to the offence.

Making Mr Léger ’ s acknowledgment of the offence a condition for his social rehabilitation is in my view problematic and outmoded in view of the purpose of custodial sentences. As soon as the punitive element of the sentence has been satisfied, the basis for the sentence has to be focused on the future, that is, on the prisoner ’ s return to the community. Although the applicant was convicted at a time when the system of minimum terms did not exist, I consider that the punitive element of his sentence could no longer serve as a basis for keeping him in prison.

6. Admittedly, “[a] fter the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder” (see Stafford , cited above, § 87). The dangerousness element is by its very nature susceptible of change with the passage of time (see Weeks v. the United Kingdom , judgment of 2 March 1987, Series A no. 114, pp. 24-25, § 46). Although this criterion is not expressly laid down in Article 729 of the CCP, I agree with the majority that it was necessary to assess the applicant ’ s dangerousness in examining his application for release on licence (see paragraph 75 of the judgment).

However, in order to assess the risk of reoffending and the potential for social rehabilitation in a case such as that of the applicant, the authorities called on psychiatric experts. I would observe that although the experts in 1999 noted a positive development in the applicant ’ s personality and found that there were no longer “any formal obstacles to his release”, those appointed in 2004 considered that it could not be concluded “with absolute certainty that he [would] n ot pose a significant danger in the community”. In my view this subjectivity inherent in the use of expert reports entails a risk of arbitrariness. Like all human beings, experts are not unaffected by the trends and ideas current in their profession at any given time. Furthermore, psychiatry is not always an exact science; the findings of an expert report are likely to vary depending on its author and the person making use of it.

I note above all that the 1999 report was in favour of the applicant ’ s release in so far as “[ i ]t would be helpful for him, at least initially, to receive support through psychological counselling” (paragraph 22 of the judgment). One year later, the judge responsible for the execution of sentences held that the applicant ’ s release “would enable him to undergo compulsory medical and psychological treatment and to regain his liberty within a clearly defined framework ” (paragraph 23 of the judgment). Accordingly, both the experts and the judge responsible for the execution of sentences suggested that Mr Léger be given psychological help after being released. Indeed, Article 729 of the CCP provides that convicted persons may be granted parole if they can show, among other things, “that they have to undergo treatment”. I find it regrettable in this connection that the domestic courts refused to release Mr Léger on licence on account of his hypothetical dangerousness, without envisaging a plan for his resettlement involving measures of assistance and supervision.

7. What remains to be examined is the final ground given by the National Parole Court , namely the applicant ’ s lack of serious employment prospects as a result of the last-minute compulsory liquidation of the company which for the past fifteen years had been offering to employ him. I do not find this reasoning persuasive and would emphasise in this connection that the criteria for prisoners to satisfy in order to be granted parole must be realistic, and that “[t]he lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release” (Appendix to Recommendation Rec (2003)22 on conditional release, cited above, point 19).

8. Did the applicant ’ s detention become arbitrary over the course of time? If one takes the view that life imprisonment is not justified once and for all by the initial punitive purpose, as emerges from the Stafford judgment, I think it did. The decision to keep Mr Léger in detention w as based on his lack of reform; at the same time, it anticipated acts he might commit in the future and den ied him the prospect of reintegrating into the community (without even envisaging intermediate measures such as an external placement). This latter aim does not seem to have been taken into account in the decision to keep Mr Léger in detention for s o long and leads me to conclude that, by 2001 at any rate , the causal link between his conviction and his continued imprisonment had been broken.

Article 3 of the Convention

9. Although the Court observed in Stafford (cited above, § 71) that, under English law, it “was never anticipated that prisoners serving mandatory life sentences would in fact stay in prison for life, save in exceptional cases”, it has never ruled on whether irreducible life sentences are compatible with Article 3. It may be argued, moreover, that in Lucien Léger ’ s case the sentence was not inevitably a whole-life term since the possibility of release on licence existed after a certain period.

10. The question is therefore whether, on account of its overall length, the applicant ’ s detention constituted inhuman treatment or punishment.

11. Taking the view that this was the case because it is inhuman to continue to detain a prisoner when his detention has become arbitrary after a certain period (since it can no longer legitimately be based on the initial punitive purpose) means finding a violation of Article 5 and going no further.

12. A violation of Article 3 will be found, however, if one takes the view that this was the case because “it is inhuman to imprison a person for life without any hope of release”, because “a crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society” and because “nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis” (see paragraph 43 of the judgment).

13. In all societies, sentences serve two purposes, namely the exclusion of offenders and their reintegration into society; it is true that either one of these considerations will prevail ove r the other according to the dominant views of the time. Furthermore, while there is a consensus as to the inclusion of parole in the member States ’ legal systems, there are divergences as to the manner of implementing it and the length of the sentence that should be served .

14. These factors are not sufficient, however, to persuade me that continued detention beyond a certain period does not raise an issue in terms of fundamental rights. I refer in this connection to the following extract from the parliamentary debates in the United Kingdom concerning the bill to abolish the death penalty in 1964, which expresses a view that I share: “generally speaking, experience shows that nine years, ten years, or thereabouts is the maximum period of confinement that normal human beings can undergo without their personality decaying, their will going, and their becoming progressively less able to re-enter society and l ook after themselves and become useful citizens . ”

15. In Lucien Léger ’ s case, I consider that the persuasive force of the arguments relating to individual and general prevention and to punishment becomes weaker as time goes on. Firstly, forty-one years of deprivation of liberty is without any doubt a sufficiently serious and dissuasive punishment to satisfy the most conservative minds; secondly, I am not convinced by the assumption that an individual is as dangerous at the age of 69 as he was at 40 or 50. Nor should it be forgotten that he was applying to be released on certain conditions and that prisoners released conditionally are supervised and monitored in order to allow them to readjust to society. What strikes me in the present case is that no measures were ever taken to prepare Mr Léger for his social reintegration .

16. The time was ripe to make a step forward. The Court often repeats with regard to prisoners that their suffering must not go beyond that inevitably associated with legitimate expectations of a prison sentence (see Mouisel v. France , n o. 67263/01, § 40, ECHR 2002-IX). The Committee of Ministers recently stated that “ [ i ] mprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment” (see paragraph 44 of the judgment). Lifelong detention with no real possibility of release after a certain period denies human dignity and sits ill with the absolute prohibition in Article 3 of the Convention. A never-ending detention of this kind is comparable to a slow death sentence or to death row with no exit (see Soering v. the United Kingdom , judgment of 7 July 1989, Series A no. 161 ).

17. The repressive climate developing today in certain countries that are the target of terrorism is leading to the imposition of harsher prison sentences and, as a corollary, to a worsening problem of prison overcrowding. The Court ’ s finding that there was no violation in the present case unfortunately runs the risk of vindicating this conservative trend.

I especially regret this finding as a consensus seems to be forming at European level as to the need to envisage and prepare for the resettlement of long-term prisoners; in that connection, I would refer in particular to the two recommendations cited in paragraph 45 of the judgment. The majority could – and, in my view, should – have opted for the dynamic and evolutive approach promoted by the Court ’ s case-law and emphasised the absolute primacy of fundamental rights by finding a violation of Article 3 of the Convention in the present case.