PARTLY DISSENTING OPINION OF JUDGE VILLIGER

I respectfully disagree with the majority of judges in this case.

As a lawyer I can of course agree that an irreducible sentence raises different and at times highly problematic issues. But as a judge bound by the Convention, I am obliged to analyse this issue solely through the prism of Article 3.

My disagreement stems from the method which this judgment chooses to examine the alleged breach of Article 3 of the Convention, namely that the irreducible sentence imposed on the applicants runs counter to this provision as such.

The Court has a time-honoured case-law as to the standards and conditions of applying Article 3, starting with its 1978 judgment in Ireland v. the United Kingdom (18 January 1978, § 162, Series A no. 25). In that case and in literally countless subsequent cases it has affirmed that whether or not an issue arises under Article 3 will depend on all circumstances of the individual case; that this provision contains different thresholds (namely “inhuman”, “degrading” and “torture”); that a minimum of severity has to be reached to attain the first threshold; and that the assessment of this minimum will be relative (see for a more recent case M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 219, ECHR 2011).

In the present judgment, the Court essential ly finds a violation of Article 3 as there is currently no prospect of release and no possibility of review of the three applicants ’ sentences. It adduces, inter alia, the arguments that the balance of the justification for detention may shift over time (at § 111 of the judgment); that whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable (at § 112); and implicitly that an irreducible sentence runs co unter to human dignity (at § 113 ). The crucial point is that the judgment takes the position that the question of an irreducible sentence ’ s compatibility with Article 3 must be analysed from the perspective of the moment when a prisoner begins serving that sentence. Thus, at § 122 of the judgment it is stated:

“[A] whole life prisoner should not be obliged to wait and serve an indeterminate number of years of his sentence before he can raise the complaint that the legal conditions attaching to his sentence fail to comply with the requirements of Article 3.”

In my opinion, this manner of analysing the complaints does not comply with the standards and conditions of Article 3 of the Convention as developed in the Court ’ s case-law for the following reasons.

To begin with, I note that in the judgment (for example, at §§ 121 et seq.) reference is made to the “standards” and “requirements” of Article 3. However, nowhere in the judgment are these standards and requirements explained, analysed and applied.

Second, the judgment assesses the situation for all prisoners serving whole life orders, thus in fact providing for a generalised interpretation of Article 3. However, Article 3 would normally require an individualised assessment of each applicant ’ s situation.

Third, by taking a prospective view of the prisoners ’ situation ‑ extending to many decades ahead in the prisoners ’ lives (and also after the Court ’ s examination of the present case) – the judgment provides for an abstract assessment and fails to undertake a concrete examination of the each applicant ’ s situation at the time when it is examining the case. How can the Court know what will happen in ten, twenty or thirty years?

Fourth, this general and abstract application of Article 3 to the present case does not, in my view, square easily with the principle of subsidiarity underlying the Convention, not least when, as the judgment itself recognises, issues relating to just and proportionate punishment are the subject of rational debate and civilised disagreement (§ 105 of the judgment).

Finally, and not least, this manner of proceeding overlooks the different thresholds in Article 3. The judgment makes no reference as to whether the minimum severity of treatment has been attained in respect of the applicants in order to bring about the application of Article 3. Neither is there a qualification as to whether the irreducible prison sentence amounts to inhuman or degrading punishment, or indeed to torture. Reference is made solely to “Article 3” (see, for example, at § 122 of the judgment).

This manner of analysing Article 3 cannot, in my view, do justice to the cardinal importance of this provision within the Convention, as interpreted by the Court in its case-law.

I submit that, had the standards and requirements of the Court ’ s case-law as to Article 3 been applied, the following conclusions would follow:

Clearly, the considerations in the judgment as to the problematic issues of irreducible sentences are relevant and valuable, but they have to be examined individually. Furthermore, in the context of such an individual examination, it is not the circumstances which existed at the outset of the sentence which are relevant, but rather the concrete circumstances which exist at point in time when the Court comes to examine the case. Indeed, it is only an examination at this point of time which would enable the Court to do justice to the length of prison time which each applicant had already served. Very pertinently, the judgment states at § 111:

“the balance between (the) justifications for detention is not necessarily static and may shift in the course of the sentence. What may be the primary justification for detention at the start of the sentence may not be so after a lengthy period into the service of the sentence.”

However, the judgment does not appear sufficiently to examine the shift, if any, in the justifications for detention in respect of the various applicants. In fact, from its perspective the judgment could not have examined the shifting of justifications.

In the present case, the first applicant, Mr Vinter , has been serving his sentence for just over five years, the second applicant, Mr Bamber , for nearly twenty-seven years, and the third applicant, Mr Moore, for nearly seventeen years.

In my opinion, in light of my considerations above as to the required individual and concrete examination of the case, Article 3 does not come into play as regards the first applicant (just over five years) and the third applicant (nearly seventeen years).

The second applicant (twenty-seven years) is approaching a borderline situation. However, bearing in mind the reasons for his conviction and sentence, i.e., multiple murders, I would consider that the justifications for detention have not (yet) shifted and that the primary justification for his detention, namely punishment, remains decisive. In this respect I am satisfied that, in 2008 and 2009 respectively, the High Court and the Court of Appeal examined this particular point and concluded that the grounds of punishment and deterrence continued to prevail in respect of the second applicant (see § 23 of this judgment).

For these reasons, I have voted against the finding of a violation of Article 3 of the Convention.

[1] An English translation of extracts of the judgment, with commentary, can be found in D.P. Kommers , The Constitutional Jurisprudence of the Federal Republic of Germany (2 nd ed.), Duke University Press, Durham and London , 1997 at pp. 306-313.