JOINT CONCURRING OPINION OF JUDGES LEMMENS AND SPANO

I.

1. We concur in the judgment. However, we consider it necessary to write separately as parts of the reasoning do not, in our opinion, fully reflect the scope and content of the Court ’ s case-law in this area as it has developed since the Grand Chamber delivered its judgment in Vinter and Others v. the United Kingdom in 2013 ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts)).

2. The fundamental requirement in the Court ’ s case-law under Article 3 of the Convention is that life sentences be de facto and de jure reducible. The crucial element in the assessment of reducibility is whether domestic law provides the person serving a life sentence with a prospect of release based on a dedicated mechanism of review. The review mechanism must be formulated in a manner which mandates that the assessor, whether it be an executive or a judicial organ, examines after a certain period of time whether legitimate penological grounds justify continued imprisonment (see Vinter and Others , cited above, §§ 119-20). The review mechanism must also take account of the progress towards rehabilitation, as the Court emphasised in Murray v. the Netherlands ([GC], no. 10511/10, § 100, ECHR 2016).

3. In the recent Grand Chamber judgment in Hutchinson v. the United Kingdom ([GC], no. 57592/08, 17 January 2017), the Court elaborated further on the nature of the review mechanism, its scope and the criteria and conditions for its assessment (§§ 46-65). Firstly, the Court explained that, although the system of review does not necessarily have to be judicial in nature, it has to guarantee the independence and impartiality of the assessor, as well as certain procedural safeguards, and provide protections against arbitrariness. Secondly, the review mechanism must impose a duty on the authority to consider whether legitimate penological grounds justify continued imprisonment, and must not leave the decision fully to that authority ’ s discretion. Thirdly, and in line with the Court ’ s findings in Murray (see paragraph 2 above), there needs to be a degree of specificity or precision as to the criteria and conditions attaching to sentence review, in keeping with the requirements of legal certainty. Lastly, 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 also be required that reasons be provided, and this requirement should be safeguarded by access to judicial review (see Murray, cited above, § 100).

II.

4. In two important judgments the Court has applied these fundamental requirements, as regards a Convention-compliant post-conviction review mechanism for those serving life sentences, to presidential pardon or clemency systems in certain Contracting States. In the case of László Magyar v. Hungary (no. 73593/10, 20 May 2014), the Court found a violation of Article 3 of the Convention on the basis that the Hungarian presidential pardon system did not conform to the requirements of post ‑ conviction Vinter review for three reasons. Firstly, domestic law did not impose any obligation on the President to perform a Vinter -type review of the sentence. Secondly, although there was a duty to collect certain information about the prisoner, no criteria had been published in that regard. Thirdly, domestic law did not impose a duty on the Minister of Justice or the President to give reasons.

5. Subsequently, in the case of Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, ECHR 2014 (extracts)), the Court examined the Bulgarian presidential clemency system under Article 3 of the Convention. In so far as the complaint concerned the period between 2004 and 2012, the Court found firstly that it was not clear whether domestic law provided de jure for the reducibility of life sentences. Secondly, the life sentence was not de facto reducible as the appli ­ cant in question could not have known that a mechanism existed that would actually permit him to be considered for release. The Court noted, however, that in 2012 the incumbent President had set up a Clemency Commission. The rules governing the work of the Commission provided that in its work it had to take account of the relevant case-law of international courts and other bodies on the interpretation and application of the international human rights instruments in force in respect of Bulgaria. The Commission had published the criteria that would guide it in the examination of clemency requests, as well as the reasons for its recommendations to exercise the power of clemency in individual cases. Also, the Court considered it important that the Constitutional Court had in April 2012 given a binding interpretation of the Constitution that defined the scope of the power of clemency and held that it should be exercised in a non-arbitrary way, taking into account equity, humanity, compassion, mercy and the health and family situation of the convicted offender, and any positive changes in his or her personality. The Constitutional Court had gone on to say that while the President or the Vice-President could not be required to give reasons in individual cases, they were expected to make known the general criteria guiding them in the exercise of the power of clemency. Lastly, the Constitutional Court had held that a clemency decree was open to legal challenge before it, albeit subject to some restrictive conditions, in particular relating to standing. That ruling of the Constitutional Court had thus provided weighty guarantees that the presidential power of clemency would be exercised in a consistent and broadly predictable way. The Court concluded that if the President ’ s power of clemency was exercised in line with the practices adopted by the Clemency Commission and the precepts laid down by the Constitutional Court, the whole-life sentences could be regarded as de facto reducible.

III.

6. In the light of the fundamental requirements of the Vinter post ‑ conviction case-law of the Court, elaborated in paragraphs 2-3 above, and their application to presidential pardon or clemency systems (see paragraphs 4-5 above), we consider that the examination by the Court in this type of case should be limited to an abstract review of the general elements of the domestic system for its conformity with the structural requirements for de jure and de facto reducibility of life sentences. Therefore, the Court ’ s references in the reasoning to the individual circumstances of the applicants in the present case or other life prisoners in Lithuania should not have formed part of the Court ’ s analysis (see parts of the reasoning in paragraphs 175-79). In other words, in our view, it would have sufficed for the Court to find a violation of Article 3 of the Convention for the following three reasons.

7. Firstly, while we are prepared to accept that the Pardon Commission Regulations from 1993, as subsequently amended, may conform, as such, to the requirements of clarity under the Court ’ s case-law, we note that the Lithuanian system affords the President full and unlimited discretion to grant pardon. His power is not circumscribed by any procedural safeguards nor are the President or the Parole Commission under a duty to give reasons for their decisions. Also, the practice of the Pardon Commission or the President is not publicly accessible as no reports are issued providing insights into the manner in which they perform their functions.

8. Secondly, neither domestic law nor judicial practice imposes a positive duty on the Pardon Commission or the President to examine whether legitimate penological grounds justify continued imprisonment, in conformity with the Vinter standards.

9. Thirdly, and importantly, the decisions of the Pardon Commission or the President – the latter enjoying full discretion and neither of these organs providing reasons for its decisions – cannot be subjected to judicial review providing the necessary protection against arbitrariness.