DISSENTING OPINION OF JUDGE THÓR VILHJÁLMSSON

To my regret I am unable to share the opinion of other members of the Court in this case. I am of the opinion that there has been no breach of Article 5 para. 4 (art. 5-4) of the Convention as the judicial review required by this provision was incorporated in the original court decisions concerning the applicants. There is accordingly no violation of Article 5 para. 5 (art. 5-5).

1. In some earlier cases I have found that I was bound to vote in a certain way on the basis of the case-law of this Court even though I did not agree with the conclusions of the judgments it was based on. The Court is now sitting in plenary. For that reason alone I consider myself free to examine the questions before us afresh, in particular, to reiterate my dissenting opinion in the Weeks case.

Nevertheless I would like to point out that four of the cases quoted in the judgment to which this dissenting opinion is attached differ from the present case. I mention these briefly:

In the case of X v. the United Kingdom the applicant was convicted of wounding with intent to cause grievous bodily harm. He was not given a prison sentence. Instead the court ordered his detention under the Mental Health Act for an indefinite period. The Court found that there had been a breach of Article 5 para. 4 (art. 5-4) as the possibilities available to Mr X to have his case reviewed by a court did not satisfy the requirements of the Convention.

In the cases of Van Droogenbroeck and E v. Norway both applicants were given fixed term sentences. In the former case the applicant was put at the disposal of the Belgian Government for ten years after he had served his time in prison. In the Norwegian case the applicant was detained on the basis of authorisations found in several court decisions. The disputed detentions were in addition to prison sentences. The Court found a violation in the Belgian case but not in the Norwegian case, where it considered that the available judicial review satisfied the requirements of Article 5 para. 4 (art. 5-4).

In the Weeks case the applicant had been convicted of armed robbery and other offences and sentenced to life imprisonment. The offences were nevertheless minor ones. The applicant had, when he was 17 years old, entered a pet shop with a starting pistol loaded with blank cartridges and made off with 35 pence. In that case I found myself in a minority.

I have briefly outlined the facts in these cases in order to underline that they could not, even if I were voting as a member of a chamber of the Court, be taken to form a clear precedent for the case at hand.

2. As to the merits of the case I would like to explain my vote as follows:

All three applicants were sentenced to life imprisonment by English courts. It is clear that this did not in any way constitute a breach of the Convention since sentencing generally falls outside its scope. If English law provided for mandatory life sentences in cases of rape or buggery, this would not give a valid ground for an application to the Convention organs.

Sentencing is a complicated process. The judgment shows that the majority of the Court has tried to limit itself to the cases in question and, in particular, to what the majority finds to be a legal distinction under English law between "punitive" and "security" periods of imprisonment where the life sentence is a discretionary one. At the same time it is stated in the judgment that the Court should not lose sight of the general context. I agree with this approach although in my view it means that thought should be given as to how the present judgment would influence the situation in other countries. I am not in a position to make a comprehensive study on this point, but I consider that the approach of the majority, which is difficult, if at all possible, to apply in the present case, would give rise to even greater difficulties if it were to be applied to sentences passed in other States. The words of the Convention do not require that our Court undertakes the difficult task of breaking up sentences passed by courts in member States into their "tariff" and "security" components. This latter part of a sentence is said to be based on grounds "susceptible of change with the passage of time". I find that it is not possible to make this distinction under the Convention.

It is also, in my opinion, relevant that the possibilities accorded to administrative authorities under national laws to shorten the time actually spent in prison is generally outside the control of our Court. The Convention has no clear rules on this point and it is, for the most part, left to the member States to regulate it. The cases of the applicants fall into this category.

All of the applicants had mental health problems. Several judgments of this Court remind us of the fact that persons with such problems can often pray the Convention in aid, but the Convention does not, in my view, entitle them to special judicial protection where, as in the circumstances of the present case, they have been convicted for criminal offences and their sentences have not expired.

As already indicated, I have come to the conclusion that there was no violation in this case because the applicants were all given life sentences following trial and conviction by a court. My conclusion is not changed because under the English system the applicants ’ release on licence was actually considered. The Convention does not guarantee a right to be considered for parole nor does it contain rules as to the outcome of such procedures. I am of the opinion that the rights of the applicants Mr Wilson and Mr Gunnell are not changed by the fact that they were released on licence and then re-detained on the basis of their original sentences since these sentences were still in force. It goes without saying that the fact that the third applicant, Mr Thynne, escaped twice from detention, does not change his legal situation.

Accordingly I have voted for no violation of Article 5 para. 4 (art. 5-4). I therefore find no violation of Article 5 para. 5 (art. 5-5) as claimed by the applicant Mr Wilson. I have voted on the question of Article 50 (art. 50) as is customary for judges in the minority on the merits of a case.

[*]  The case is numbered 23/1989/183/241-243.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   The amendments to the Rules of Court which entered into force on 1 April 1989 are applicable to this case.

[*]  Note by the Registrar.  For practical reasons this annex will appear only with the printed version of the judgment (volume 190 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.