CONCURRING OPINION OF JUDGES ZAGREBELSKY AND TULKENS

(Translation)

We have not hesitated to vote in favour of finding a violation of Article 5 § 1 of the Convention and we fully agree with the reasoning of the judgment. We merely wish to add a number of considerations.

The special nature of this case and the Court's concern to confine its examination to the question of compatibility with Article 5 § 1 have led to a conclusion at the end of the judgment that might be interpreted in a way which, if it were to be followed, we would find problematical. We refer to the last part of paragraph 82: “The Court cannot accept that a decision-making power by the executive to detain the applicant on the basis of perceived fears of future non-violent criminal conduct unrelated to his original murder conviction accords with the spirit of the Convention, with its emphasis on the rule of law and protection from arbitrariness.” The assertion that the concentration of such power in the hands of the executive is unacceptable is self-evident, but should not imply, a contrario , that the same power entrusted to a judge would not give rise to a problem of compatibility with the Convention.

Such an interpretation would go beyond the scope of the decision, which – quite rightly – was intended to be confined to an examination of the case in point under Article 5 § 1, without addressing the issue from the standpoint of Article 7 § 1. If a domestic law conferring on the judiciary the powers exercised by the Secretary of State were to be held to satisfy the requirements of Article 5 § 1, it would leave open the question of its compatibility with Article 7 of the Convention.

The Court, agreeing with the Government's opinion on this point, found that the sentence here was of an indeterminate duration. However, the actual length of a mandatory life sentence is determined in accordance with the Secretary of State's policy of considering (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence; (b) whether it is safe to release the prisoner; and (c) the public acceptability of early release. These are clearly vague criteria, having regard to the rule that punishments shall be strictly defined by law, since the penalty knows no minimum or maximum duration. Furthermore, the second criterion, and above all the third one, do not refer to the offence committed or to the personality of the offender at the time when it was committed, but only to the condition of the prisoner and his dangerousness during his detention. Besides, the third criterion takes absolutely no account of the prisoner's responsibility since it refers to the demands of public opinion. Admittedly, it has been acknowledged that the third criterion is never in actual fact a determining factor in the policy of the Secretary of State, but it is nonetheless mentioned in the definition of the policy adopted in such cases.

We think that an indeterminate sentence, the duration of which is determined only in the course of its being served and on the basis of the above-mentioned discretionary criteria, could not be deemed to be laid down by law for the purposes of Article 7 § 1 of the Convention. The same reasoning would of course apply even if the power to fix the length of the sentence were entrusted to a judge. The position would be different if it were a question of stipulating the terms of enforcement of a sentence where the duration had already been determined by a court.

The necessity of providing a safeguard, which is satisfied by the rule requiring that offences and punishments shall be strictly defined by law, is a general one and also applies to judges. The requirements of precision, foreseeability and accessibility relating to the consequences of particular conduct cannot, in our opinion, be properly met by a sentencing structure such as the one here.