PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

1. I subscribe to the findings of the present judgment with the exception of the decision on Article 41. For the reasons already stated in my opinion in Murray v. the Netherlands [1] , I cannot agree with the majority position in the present case that “the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant in relation to his complaint concerning his irreducible life sentence” [2] . In addition to the arguments set out on the occasion of Murray , I would underline that it is essential to distinguish between the obligation to acknowledge the violation of Article 3 of the European Convention on Human Rights (“the Convention”), on the one hand, and the obligation resulting therefrom, to ensure full reparation, on the other [3] . The majority failed to ensure such reparation in the present case, although it acknowledged the violation.

2 . While I fully subscribe to the Chamber ’ s finding that there has been a violation of Article 3, due to the lack of medical care available and the applicant ’ s irreducible life sentence in the present case, I do not agree with the Chamber ’ s reasoning in paragraph 178, insofar as it states that “having regard to the margin of appreciation which must be accorded to Contracting States in matters of criminal justice and sentencing, it is not its task to prescribe the form (executive or judicial) such a review should take” and that subsequently “the review should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided”.

In my view, the implied perspective, namely that the obligation to give reasons for the decision and the obligation to provide judicial review are alternative and not cumulative ones, does not comply with the Grand Chamber judgment delivered in the above mentioned Murray case. Hence, the present judgment aggravated the lack of clarity and consistency of the Court ’ s own case-law.

3 . It has been said that the Court does not prescribe the form which s hould take the review mechanism [4] . But in Murray the Grand Chamber went a step further, stating that:

“... The prisoner ’ s right to a review entails an actual assessment of the relevant information, and the review must also be surrounded by sufficient procedural guarantees. To the extent necessary for the prisoner to know what he or she must do to be considered for release and under what conditions, it may be required that reasons be provided, and this should be safeguarded by access to judicial review” [5] .

After two precursor cases, László Magyar v. Hungary and Harakchiev and Tolumov v. Bulgaria [6] , the development of the case law reached what seemed to be a point of no return in 2016 with the Murray judgment, the Grand Chamber having circumscribed the State ’ s positive obligation to ensure the existence of an effective and independent review mechanism. In order to be compatible with the Convention, a review mechanism should comply with the following five binding, “relevant principles”:

“(1) the principle of legality (“rules having a sufficient degree of clarity and certainty”, “conditions laid down in domestic legislation”);

(2) the principle of the assessment of penological grounds for continued incarceration, on the basis of “objective, pre-established criteria”, which include resocialisation (special prevention), deterrence (general prevention) and retribution;

(3) the principle of assessment within a pre-established time frame and, in the case of life prisoners, “not later than 25 years after the imposition of the sentence and thereafter a periodic review”;

(4) the principle of fair procedural guarantees, which include at least the obligation to give reasons for decisions not to release or to recall a prisoner;

(5) the principle of judicial review” [7] .

In the light of this last principle, it was apparently clear that the review mechanism “must [either] be under the authority of a court or at least subject to full judicial review of both the factual and the legal elements of the parole decision, as also provided by the universal standard established in Article 110 § 2 of the Rome Statute” [8] . The imperative language utilised by the Grand Chamber in paragraph 110 of Murray (“should be safeguarded by access to judicial review”) was intended to leave no doubt as to its intention.

Unfortunately, the Hutchinson judgment blurred the message of Murray. As a matter of principle, the Grand Chamber in Hutchinson referred to the “relevant principles” set out in paragraphs 99 and 100 of the Murray judgment, [9] but seriously distorted these principles when applying them. In this respect, the Hutchinson judgment represented “a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards” [10] . Six months after the delivery of judgement in Murray , which reflected the Court ’ s hands-on approach on the issue of the review mechanism, it was difficult to explain the hands-off approach in Hutchinson . [11] . The suspicion of double standards in the Court ’ s practice is compounded by Matiošaitis and Others v. Lithuania , in which the Court has performed a more thorough control of the Lithuanian review mechanism, as compared with the control of the British review mechanism in Hutchinson [12] .

In Matiošaitis and Others v. Lithuania , the Chamber stated that:

“I n order to guarantee proper consideration of the changes and the progress towards rehabilitation made by life prisoner, however significant they might be, the review should entail either the executive giving reasons or judicial review, so that even the appearance of arbitrariness is avoided. The Court has also stated that to the extent necessary for the prisoner to know what he or she must do to be considered for release and under what conditions, it may be required that reasons be provided, and this should be safeguarde d by access to judicial review” [13] .

In other words, in the Lithuanian case, the Chamber misinterpreted the obligation of judicial review, which had been the main added value of the Murray judgement. While in Murray this obligation was logically attached to the obligation of reasoning, as a complementary guarantee against arbitrariness, in Matiošaitis and Others it was converted into an alternative guarantee to the latter. This alternative is logically untenable. The requirement of provision of reasons only makes sense if they can be tested by an independent authority. Asking the governmental or administrative authority to provide reasons regarding the penological needs for continued incarceration, but depriving the detained person of the benefit of the supervision of these reasons by a court, means little, if anything at all, in terms of restricting arbitrariness on the part of the Government or the authorities.

It is therefore recommended that the Grand Chamber shoulders its responsibility and clarifies once and for all what it meant with the requirement that the review mechanism “should be safeguarded by access to judicial review” in paragraph 100 of the Murray judgment. The State ’ s obligation to provide for a mechanism of review of the penological needs for continued incarceration cannot be taken seriously when judicial review is not acknowledged .