JOINT PARTLY DISSENTING OPINION OF JUDGES VILLIGER, STEINER, POWER-FORDE, LEMMENS AND GRIÅ¢CO

We voted against the majority in its award for non-pecuniary damage to the applicant. We acknowledge that, in principle, the Court’s general practice is to award damages in cases where violations of human rights have been found. This is particularly so where the right to liberty has been breached (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 253, ECHR 2009).

The present case, however, is distinguishable from A. and Others v. the United Kingdom in which the Court found that it had not been established that any of the applicants had engaged, or attempted to engage, in any act of terrorist violence. The applicant, in the instant case, stands convicted of many serious terrorist offences that involved the murders and attempted murders of and the infliction of grievous bodily harm upon numerous individuals. Against that background, we prefer to adopt the approach of the Court in McCann and Others v. the United Kingdom (27 September 1995, § 219 , Series A no. 324) . Consequently, having regard to the special circumstances pertaining to the context of this case, we do not consider it appropriate to make an award for non-pecuniary or moral damage. In our view, the Court’s finding of violations taken together with the measure indicated pursuant to Article 46 constitute sufficient just satisfaction.

JOINT PARTLY DISSENTING OPINION OF JUDGES MAHONEY AND VEHABOVIĆ

As concerns Article 7

We are unable to share the views of the majority of the Grand Chamber that the facts complained of by the applicant disclose a violation of Article 7 § 1, which provides:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The specific issue is whether the second sentence of this provision was breached as a result of the application in the applicant’s case, some years after her conviction and sentence for various extremely serious crimes of violence, of the so-called “Parot doctrine”, whereby the method used to calculate reductions of sentence obtained through work and studies accomplished in prison was changed, so as to deprive her in practice of her hitherto existing expectation of early release on the basis of such reductions in sentence. Our disagreement goes to the narrow point whether the measure complained of by the applicant gave rise to a modified “penalty” within the meaning of the second sentence of Article 7 § 1, so as to attract the protection of the safeguard afforded.

As the judgment states (at paragraph 83), the Convention case-law has consistently drawn a distinction between a measure that constitutes in substance a “penalty” and a measure that concerns the “execution” or “enforcement” of the “penalty”.

In the early case of Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231), the complainant was a convicted prisoner who, as a result of a change in the policy on release on parole, had to serve a substantially longer time in prison than he would otherwise have done. In its decision declaring the application inadmissible, the European Commission of Human Rights reasoned as follows:

“The Commission recalls that the applicant was sentenced to life imprisonment in 1969 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Article 7 arises in this respect.

Furthermore, in the opinion of the Commission, the ‘penalty’ for purposes of Article 7 § 1 must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years’ imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the ‘penalty’ which remains that of life imprisonment. Accordingly, it cannot be said that the ‘penalty’ imposed is a heavier one than that imposed by the trial judge.”

It is difficult to discern the difference in principle between the circumstances of that case and those of the present case, where the sentence ultimately imposed on the applicant for the commission of a series of crimes in Spain remains the same, namely thirty years’ imprisonment, although in the meantime the date of eligibility for release has in practice changed to her disadvantage.

Similarly, in Uttley v. the United Kingdom ((dec.), no. 36946/03, 29 November 2005), the essence of the applicant’s complaint was that a change in the regime for early release, brought about by intervening legislation (enacted in 1991), had the effect of imposing on him (when he was convicted in 1995) a further or additional “penalty” over and above the “penalty” that was applicable at the time when he had committed the offences (prior to 1983). Relying on Hogben (cited above) as well as Grava v. Italy (no. 43522/98, §§ 44-45, 10 July 2003), the Court held:

“Although... the licence conditions imposed on the applicant on his release after eight years can be considered as ‘onerous’ in the sense that they inevitably limited his freedom of action, they did not form part of the ‘penalty’ within the meaning of Article 7, but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed.

Accordingly, the application to the applicant of the post-1991 ... regime for early release was not part of the ‘penalty’ imposed on him, with the result that no comparison is necessary between the early-release regime before 1983 and that after 1991. As the sole penalties applied were those imposed by the sentencing judge, no ‘heavier’ penalty was applied than the one applicable when the offences were committed.”

This line of reasoning was then confirmed by the Grand Chamber in Kafkaris v. Cyprus ([GC], no. 21906/04, ECHR 2008), where, as paragraph 84 of the present judgment puts it, changes to the prison legislation had deprived prisoners serving life sentences – including the applicant – of the right to remissions of sentence. The Grand Chamber stated (at § 151):

“[A]s regards the fact that as a consequence of the change in the prison law ..., the applicant, as a life prisoner, no longer has a right to have his sentence remitted, the Court notes that this matter relates to the execution of the sentence as opposed to the ‘penalty’ imposed on him, which remains that of life imprisonment. Although the changes in the prison legislation and in the conditions of release may have rendered the applicant’s imprisonment effectively harsher, these changes cannot be construed as imposing a heavier ‘penalty’ than that imposed by the trial court... In this connection, the Court would reiterate that issues relating to release policies, the manner of their implementation and the reasoning behind them fall within the power of the member States in determining their own criminal policy ... Accordingly, there has not been a violation of Article 7 of the Convention in this regard ...”

We see no cause to depart from this reasoning in the present case, especially given that in both Uttley and Kafkaris (both cited above) the “right” to obtain a remission of sentence was removed completely. We do not see it as being material for the purposes of the applicability of Article 7 that in the present case the removal of the “right” of remission was effected by a changed judicial interpretation of the applicable Spanish legislation rather than by an amendment of the legislation itself, as in Kafkaris and Uttley .

We naturally accept that the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” (see paragraph 81 of the present judgment); and that the term “imposed” in the second sentence of Article 7 § 1 cannot be interpreted as necessarily excluding from the scope of Article 7 § 1 measures adopted in regard to the prisoner after the pronouncement of the sentence (see paragraph 88 of the present judgment).

We also well understand the humanitarian thinking behind the reasoning of the majority and recognise that the circumstances of the present case are quite extraordinary and, indeed, disquieting from the point of view of the fairness of treatment of prisoners, especially those who have the prospect of spending a large part of their life incarcerated.

However, despite these extraordinary circumstances, we are not able to agree with the majority that the dividing line between the “penalty” imposed on the applicant for the commission of criminal offences (to which Article 7 of the Convention is applicable) and the measures subsequently taken for regulating the execution of her sentence (which, for their part, do not attract the application of Article 7) was crossed in the present case as a consequence of the application to her of the so-called “Parot doctrine” in the calculation of her release date. While it is undeniable that the dividing line between the two concepts (of a penalty and of a measure regulating the serving of the sentence) is not always easy to draw, this does not justify blurring the dividing line out of existence, even in the presence, as in the instant case, of serious issues as to compliance with legal certainty and respect of legitimate expectations in relation to measures regulating the serving of the sentence. Our difference of opinion with the majority is thus as to the side of the dividing line on which the impugned decision in the instant case falls.

In order to arrive at its conclusion regarding the applicability of the second sentence of Article 7 § 1 to the measure complained of, the majority has taken up the distinction between “the scope of the penalty” and “the manner of its execution”, a distinction drawn in the Kafkaris judgment in relation to the lack of precision of the relevant Cypriot law applicable at the time of the commission of the offence (see paragraphs 81 et seq. of the present judgment).

As a matter of principle, the judgment appears to take a subsequent detrimental change in “the scope of the penalty” as being the determining factor for the application of Article 7. In the present case, “the scope of the penalty” imposed on the applicant is said to have been modified to her detriment by the changed judicial interpretation of the legislative provision on reduction of sentence on account of work done in prison (see paragraphs 109, 111 and 117 of the present judgment).

Even accepting recourse to the notion of the “scope of the penalty”, which is presumably meant to be more extensive than that of a “penalty”, we are not, however, convinced by the reasons given by the majority for being able to distinguish the circumstances of the present case from those of earlier cases, so as to take the present case outside the logic and rationale of the Court’s well-settled case-law.

We do not read the present judgment as saying that the decisive factor for the application of Article 7 is the mere fact of prolonging, by means of changes to the remission system or parole system, the time that the prisoner could expect at the outset of his or her sentence to spend in prison. That is to say, prolonging “the penalty” in this sense. That would mean that any unforeseeable change in the remission or parole system, whether accomplished by a legislative or regulatory text, by executive practice or by judicial case-law, would be contrary to Article 7, because the actual time of expected incarceration had been increased.

The majority does, however, rely on the fact that “the applicant had every reason to believe that the penalty imposed was the thirty-year maximum sentence, from which any remissions of sentence for work done in detention would be deducted”; and that she “had no reason to believe that ... the Audiencia Nacional ... would apply the remissions of sentence granted to her not in relation to the maximum thirty-year term of imprisonment to be served, but successively to each of the sentences she had received” (see paragraphs 100 and 117 of the present judgment). The argument is that the (jurisprudential) change effected to the modalities of early release (in the instant case, the change in the method for calculating reductions of sentence for work done in prison) was such as to make the “penalty” imposed on the applicant “heavier”. In effect, as paragraph 103 in fine of the present judgment would seem to suggest, such reasoning amounts to incorporating into the definition of the “penalty” the existence and modalities of a given remission system at the time of sentencing, as an element of the “penalty” determining its potential length.

It is the case that persons convicted of criminal offences and sentenced to imprisonment will take the sentence and the relevant remission or parole scheme together at the outset of their sentence, in the sense of making calculations as to whether, how and when they are likely to be released from prison and of planning their conduct in prison accordingly. In ordinary language, they will take the sentence imposed and the possibilities and modalities of remission, parole or early release as a “packet”.

It is, however, quite clear from the Court’s settled case-law that Contracting States may, after the commission of the offence or even after sentencing, alter the prison regime in so far as it concerns the manner of serving the sentence, so as to make changes that have a negative impact on the early release of prisoners and thus on the length of time spent in prison, without entering into the scope of the specific protection afforded by Article 7 of the Convention. As shown by Kafkaris , such changes may include amending the legislation so as to remove completely for a given category of convicted prisoners any “right” to benefit from remission of sentence, as occurred in practice in relation to the present applicant as a result of the application to her of the “Parot doctrine”. Yet the present judgment does not purport to overrule or depart from that well-settled case-law.

Furthermore, although this is another consideration relied on by the majority (see paragraph 101 of the present judgment), we are not convinced that the difference between an automatic entitlement under the law to remission days on a prisoner’s satisfying certain conditions (such as work performed in prison), as in the present case, and discretionary release on parole for good behaviour is in itself decisive. There is a margin of appreciation available to the Contracting States with regard to how to regulate the prison system, in particular as regards the serving of sentences. The States may opt for rewards for good behaviour, or for measures facilitating reinsertion into society, or for schemes offering automatic credits for early release, and so on. It is up to the Contracting States whether they make the system chosen automatic or discretionary, executive or judicial in its operation, or a mixture. We do not understand how framing a condition for earlier release as an automatic consequence of a certain event, rather than as being discretionary or dependent on an assessment of conduct in prison or dangerousness, is in itself a factor capable of rendering Article 7 applicable.

Our analysis, on the basis of the Court’s existing case-law, is that the contested decision in the present case represents a measure affecting the serving of the sentence (how and when early release can be obtained) and not the “penalty” as such – so that although issues as to the fair treatment of prisoners, notably under the head of the principles of legal certainty and legitimate expectations, may be raised, the application of Article 7 and the very specific guarantee that it sets out are not brought into play.

It is true that the Supreme Court, by adopting the “Parot doctrine”, imposed a new method for calculating the reduction of prison sentences and overturned well-established case-law, thereby ultimately causing the time spent by the applicant in prison to be considerably extended; but this negative consequence is not the mischief that Article 7 is directed towards preventing. Although the result is that her “imprisonment is effectively harsher” (to quote from Hogben , cited above) than if she had benefited from the previously existing interpretative case-law and practice regarding implementation of the relevant 1973 legal provision, the detriment suffered by her relates to the execution of the sentence as opposed to the “penalty”, which remains one of thirty years’ imprisonment. Accordingly, it cannot be said that the “penalty” has become heavier than it was when initially imposed. The impugned decision concerns exclusively the way in which the lawfully prescribed sentence is to be executed; it does not raise issues under the principle nulla poena sine lege , the basic principle at the core of Article 7. The applicable criminal legislation remains the same, as does the prison sentence imposed, even though, as a result of the Spanish courts correcting what they deemed to be a mistaken interpretation and, thus, a mistaken implementation of that criminal legislation over previous years, a different method for calculating the reduction of the applicant’s prison sentence was applied. It is in this crucial respect that the circumstances of the present case are clearly distinguishable from those of other cases that have been held by the Court to come within the ambit of Article 7.

In short, we do not think that the applicant’s “penalty”, within the meaning of Article 7, was made heavier by the impugned decision, despite the latter’s very significant impact on the time that she has to spend in prison before the expiry of the thirty-year sentence of imprisonment imposed on her. The second sentence of Article 7 § 1 is not applicable to the measures concerning the execution of the sentence and the method by which days of remission are to be calculated or allocated. Our concern is that the majority appear to have stretched the concept of a “penalty”, even understood as being “the scope of a penalty”, beyond its natural and legitimate meaning in order to bring a perceived instance of unfair treatment of convicted prisoners within the ambit of Article 7.

As concerns Article 5

Whether the facts complained of fall within the scope of Article 5 and, if so, whether the requirements of that Article were met is another question, and on that we agree with the reasoning of the judgment.

As concerns Article 41

As to whether, in the particular circumstances of this case, it is “necessary” – this being the condition imposed by Article 41 of the Convention for the award of just satisfaction – to afford the applicant any financial compensation by way of just satisfaction for the violations of the Convention found by the Court, we would respectfully agree with the conclusion and reasoning expressed by Judges Villiger, Steiner, Power-Forde, Lemmens and Griţco in their separate opinion.