JOINT PARTLY DISSENTING OPINION OF JUDGES SPIELMANN, SAJÓ, KARAKAŞ AND PINTO DE ALBUQUERQUE

(Translation)

We voted against point 3 of the operative provisions, to the effect that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant, as concluded by the majority.

We would note, at the outset, that the fact that the applicant died on 26 November 2014, in the course of the proceedings, should not have precluded an award of just satisfaction on the basis of any non-pecuniary damage sustained. The Court has previously awarded just satisfaction for non-pecuniary damage in cases where the applicant died during the proceedings (see, in particular, in the context of a violation of Article 3, Avcı and Others v. Turkey , no. 70417/01, 27 June 2006, and Keser and Kömürcü v. Turkey , no. 5981/03, 23 June 2009; and, in other contexts, Ernestina Zullo v. Italy [GC], no. 64897/01, 29 March 2006; Jėčius v. Lithuania , no. 34578/97, ECHR 2000 ‑ IX; Reynolds v. the United Kingdom , no. 2694/08, 13 March 2012; and BenkÅ‘ and Soósné BenkÅ‘ v. Hungary , no. 17596/12, 8 July 2014).

The present case has allowed the Grand Chamber to develop and clarify its case-law concerning irreducible life sentences. It was the lack of arrangements adapted to the applicant’s state of health which characterised this case. The applicant did not receive psychiatric treatment such as to give him a possibility of rehabilitation or a prospect of release. In paragraphs 105 to 112 of the present judgment, the Court sets out its case-law principles concerning health care provided to prisoners, particularly to lifers with mental-health problems. Applying those principles to the present case, and to arrive at the conclusion that the applicant’s life sentence was not de facto reducible, the Court finds that he was not given any kind of treatment and there was not even an assessment of treatment needs and possibilities (see paragraph 125).

The present case can thus be distinguished from that in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, ECHR 2013), and it is for that reason that we find that the Court should have made an award in respect of the non-pecuniary damage sustained by the applicant.

[1] . For the purpose of terminological clarity, it must be stated that resocialisation is the correct word in penal and prison law to designate the primary purpose of imprisonment; it refers to the social reintegration of the prisoner who is capable of leading a crime-free life after release. Rehabilitation has a moralistic and paternalistic connotation, deriving from the wrong assumption that the State is responsible for the prisoner’s “moral reform” and his or her “conversion” to the majority’s social values. As I argued in my separate opinion appended to Öcalan v. Turkey (no. 2) (nos. 24069/03 and 3 others, 18 March 2014), this assumption is outdated, because resocialisation is no longer understood, as in the classical medical analogy, as a “treatment” or “cure” of the prisoner, aimed at the reformation of the prisoner’s character, but as a less ambitious, yet more realistic task: his or her preparation for a law-abiding life after prison. There are three reasons for this: firstly, it is problematic to propose that States have the constitutional power to “reform” the character of an adult; secondly, it is doubtful that such reform is feasible; thirdly, it is even more uncertain that such reform can be established. In other words, the rehabilitative ideology is confronted with problems of constitutional legitimacy, practical feasibility and evidential establishment. The Court has referred to the term resocialisation in paragraph 70 of the present judgment and on occasion in previous cases (see, for example, Stummer v. Austria [GC], no. 37452/02, §§ 93-94, ECHR 2011), but it unfortunately does not adhere to a uniform legal language. Resocialisation is also used in Rule 223 of the Rules of Procedure and Evidence of the International Criminal Court.

[2] . Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013.

[3] . It is relevant to underscore the insistence with which the Court uses the word “obligation” in the “relevant principles” part of the judgment (seven times in paragraph 104, once in paragraph 105, once in paragraph 108, once in paragraph 110 and twice in paragraph 111). This language, with its clear legal meaning, demonstrates, without a shadow of doubt, the Grand Chamber’s determination to impose mandatory principles on States.

[4] . As I argued in my separate opinion in Tautkus v. Lithuania (no. 29474/09, 27 November 2012), and later on, in the company of Judge Turković, in Khoroshenko v. Russia ([GC], no. 41418/04, ECHR 2015), the right to an individualised sentence plan applies to mentally sane offenders, especially those sentenced to life or long-term imprisonment, that is, a prison sentence or sentences totalling five years or more. The commentary to Rule 103 of the 2006 European Prison Rules states: “[The Rule] emphasises the need to take action without delay in order to involve prisoners in the planning of their careers in prison, in a way that makes the best use of the programmes and facilities that are on offer. Sentence planning is a vital part of this but it is recognised that such plans need not be drawn up for prisoners serving a very short term.” The time-limit of five years stems from the Council of Europe’s definition of long-term imprisonment. The French version of the commentary allows for sentence planning even in the case of short-term imprisonment, thus contradicting the English version. In Murray the scope of the “relevant principles” as regards sentence planning is not restricted to long terms and includes shorter terms of imprisonment.

[5] . See paragraph 101, followed by paragraph 102 (“a convicted person”) and paragraph 103 (“convicted persons, including life prisoners”).

[6] . Following its good practice, the Grand Chamber offers in the present judgment an interpretation of the Convention in line with the relevant Council of Europe soft law. The Convention must be interpreted taking into account not only other human rights treaties, but also hard and soft law instruments related to it and especially the system of human rights protection of the Council of Europe within which it fits, as Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties provides (for a recent, laudable example, see Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12, § 204, ECHR 2014). Nevertheless, some very important passages of the relevant international texts, to which I will make reference, have been omitted.

[7] . James, Wells and Lee v. the United Kingdom , nos. 25119/09 and 2 others, §§ 209 and 220, 18 September 2012. The Court recognised that denying prisoners access to resocialisation programmes resulted in their not having a realistic chance of making objective progress towards a real reduction in or elimination of the risk they posed, thereby rendering the detention arbitrary. This means that the State is required to provide the prisoners with reasonable opportunities to undertake courses aimed at helping to address their offending behaviour and the risk they pose. If a person is in preventive detention due to the risk that he or she may reoffend, while at the same time deprived of the necessary means, such as suitable therapy, to demonstrate that he or she is no longer dangerous, there will be a violation of Article 5 of the Convention (see Ostermünchner v. Germany , no. 36035/04, §§ 73 ‑ 74, 22 March 2012).

[8] . See paragraph 42 of the Government’s submissions of 1 September 2014: The Government acknowledges that “long-term imprisonment can have a number of desocialising effects on inmates” and that “the CPT has advised the Aruban authorities to draw up a policy for such prisoners” sentenced to life imprisonment.

[9] . Report to the authorities of the Kingdom of the Netherlands on the visit to the Netherlands Antilles carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 to 30 June 1994, CPT/Inf (96) 1.

[10] . Report to the Government of the Netherlands on the visit to the Netherlands Antilles carried out by the CPT from 7 to 11 December 1997, CPT/Inf (98) 17.

[11] . Report to the Government of the Netherlands on the visit to the Netherlands Antilles carried out by the CPT from 25 to 29 January 1999, CPT/Inf (2000) 9.

[12] . Report to the authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe, Aruba, and the Netherlands Antilles by the CPT in June 2007, CPT/Inf (2008) 2.

[13] . Report to the Government of the Netherlands on the visit to the Caribbean part of the Kingdom of the Netherlands carried out by CPT from 12 to 22 May 2014, CPT/Inf (2015) 27.

[14] . This adverse political will is demonstrated in the notorious statement of the Dutch Deputy Minister of Security and Justice, of 16 April 2012: “Life imprisonment is life imprisonment. Return to society is excluded, unless in the exceptional case that a whole life prisoner is granted a pardon. For this reason, whole life prisoners do not qualify for activities aimed at reintegration.” (See page 10 of the applicant’s pleadings before the Grand Chamber.)

[15] . Mathew v. the Netherlands , no. 24919/03, § 215, ECHR 2005-IX. See also Claes v. Belgium , no. 43418/09, § 99, 10 January 2013.

[16] . See the Joint Court of Justice’s argument in paragraph 15 of the present judgment.

[17] . Again for the sake of terminological clarity, I stress that I use the word parole in the same sense as the Council of Europe uses it, meaning conditional release or early release of sentenced prisoners under individualised post-release conditions; amnesties and pardons are not included in this definition, as Recommendation Rec(2003)22 has recognised.

[18] . The Grand Chamber has therefore finally departed from the unfortunate case-law according to which the Convention does not confer a right to parole (see Szabo v. Sweden (dec.), no. 28578/03, ECHR 2006-VIII, and Macedo da Costa v. Luxembourg (dec.), no. 26619/07, § 22, 5 June 2012).

[19] . Vinter and Others , cited above, §§ 125 and 129.

[20] . Trabelsi v. Belgium , no. 140/10, § 137, ECHR 2014.

[21] . László Magyar v. Hungary , no. 73593/10, § 57, 20 May 2014.

[22] . Harakchiev and Tolumov , cited above, §§ 255, 257 and 262.

[23] . Bodein v. France , no. 40014/10, § 61, 13 November 2014.

[24] . See paragraph 100 of the present judgment. The use of the imperative “should” reflects in a straightforward way the intention of the Grand Chamber to impose the principle of judicial supervision of parole decisions, according to which the prisoner’s right to know what he or she must do to be considered for release, and under what conditions, has to be safeguarded by the guarantee of judicial review.

[25] . The same principle already stemmed from Weeks v. the United Kingdom , ,2 March 1987, §§ 58 and 69, Series A no. 114, and T. v. the United Kingdom [GC], no. 24724/94, § 121, 16 December 1999.

[26] . See paragraph 100 of the present judgment. The use of “may” when referring to reasons that are to be provided in order for the prisoner to know what he or she must do to be considered for release, and under what conditions, should not be misunderstood. Reasons are required whenever release is denied or the recall of a released prisoner is decided, but reasons are not required in the opposite circumstances, that is, when release is decided or recall of a released prisoner is denied.

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

[28] . Already in 1979, a psychiatric report stated that “he should be placed in a custodial clinic for psychopaths to undergo a rather lengthy treatment under very strict surveillance”. On that basis, in its 11 March 1980 judgment, the Joint Court of Justice itself acknowledged that the imposition of a TBS order for confinement in a custodial clinic “would be the most appropriate measure in this case”.

[29] . The same conclusion is valid for the pardon system under Article 93 of the new Curaçao Constitution, which came into force on 10 October 2010. It should be noted in this context that, on 8 November 2013, the Constitutional Court of Sint Maarten, part of the Kingdom of the Netherlands, delivered a judgment on, among other issues, the possibility of imposing life sentences, considering that life sentenced prisoners must have both a possibility of review and a prospect of release. The constitutional judges even cited the Grand Chamber judgment of Vinter and Others to support their negative evaluation of the Sint Maarten legal provisions, similar to those existing in Curaçao until 2011. As the new Criminal Code of Sint Maarten lacked any provision for such a review and the Government were not willing to undertake that a pardon would be granted in such a case, the Constitutional Court found itself compelled to strike down a number of provisions on life sentences (see the Dutch text of the decision on the website of the Ombudsman of Sint Maarten ). This important case-law, which was ignored by the respondent State, shows that not only were the Sint Maarten constitutional judges attentive to Vinter and Others , they were also prepared to draw all the logical conclusions from the Grand Chamber’s findings in that case.

[30] . See paragraph 23 of the present judgment.

[31] . See paragraphs 13 and 16 of the applicant’s observations of 10 August 2014, not contested by the Government.

[32] . The present case provides another patent demonstration that a categorical rule against life imprisonment is called for in European human rights law. The universal acknowledgment of the principle of resocialisation of offenders sentenced to prison and the emerging consensus on the prohibition of life imprisonment for mentally fit offenders so require (see my separate opinion in Öcalan , cited above). Hopefully the Court will dare one day to read the signs of the times and take the additional step of rejecting life sentences for mentally fit offenders as a frontal breach per se of Article 3 of the Convention.

[33] . See President Costa’s separate opinion in Leger v. France , no. 19324/02, 11 April 2006.