CONCURRING OPINION OF JUDGE K ŪRIS

1. Having dissented in a very recent similar case, T.P. and A.T. v. Hungary (nos. 37871/14 and 73986/14, 4 October 2016), where the Court found a violation of Article 3 of the Convention on account of the irreducibility of life prison sentences under Hungarian law, I am, however, not able to maintain the same legal position in the instant case, because the present judgment is based on the law of the Convention as it stands today. I am far from being satisfied with that law; to be more precise, I am critical not so much with regard to what it says, but more with regard to how it has arrived at saying it.

2. Since T.P. and A.T. v. Hungary (cited above), the Court adopted the landmark judgment in Hutchinson v. the United Kingdom ( [GC], no. 57592/08, 17 January 2017), in which (although no violation of Article 3 was found) the Court consolidated its doctrine as to life prisoners ’ “right to hope” that their life prison sentences will be reviewed and that, as a consequence, they may be released earlier. Hutchinson , just like the instant judgment, goes on to refer to and cite not only Vinter and Others v. the United Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts)) and one of the most important post- Vinter judgments, Murray v. the Netherlands ([GC] no. 10511/10, ECHR 2016), but also the earlier judgment in Kafkaris v. Cyprus ( no. 21906/04, ECHR 2008). Applying Kafkaris standards (had these (or at least some of them) not become by now a dead letter, one which nevertheless continues to adorn many judgments pertaining to life imprisonment), the examination of the instant case could – and should – have brought about a different result, namely that no violation of Article 3 was to be found. However, under the Court ’ s case-law as it has been developed to the present day (most recently in Hutchinson ), such a finding is no longer possible.

3. The Court ’ s case-law pertaining to life imprisonment continues to be developed further. This has been a breathtakingly fast process. One of the elements of this development, albeit not yet an outstanding one (at least to the outside observer), is the slow but steady and purposeful movement from the admission – as in Vinter and Others (cited above, § 120), which is, to a much greater extent than the post- Vinter case-law, permeated with the spirit of the then still recent judgment in Kafkaris (cited above) – that the review of life prison sentences “should entail either the executive giving reasons or judicial review, so that even the appearance of arbitrariness is avoided” (see paragraph 181 of the judgment, emphasis added) to the effective rejection, whenever possible, of the “executive alternative”. This is so despite repeated verbal assurances that the “executive alternative” is not impossible, at least in theory. If one looks more attentively at what arguments, employed in earlier cases pertaining to life imprisonment, are selected for recapitulation in later cases or at how the emphasis at times shifts from some arguments to others (even without any of them being rephrased), or at how prominence is given to certain provisions of hard or even soft law that are “external” to the Convention (see, for instance, paragraph 174 of the judgment), one could perhaps predict that sooner or later this movement will arrive at its logical destination. As to when , at last, this will take place, is a matter for the prophets. It is also true that today this logical destination has not yet been reached. For instance, in Hutchinson (cited above) the “executive alternative” was not dismissed, in particular owing to the fact that in the British system the executive does provide reasons for not commuting life prison sentences; moreover, these reasons are amenable to judicial review . Be that as it may, one cannot but observe how far the case ‑ law has moved away from Kafkaris ( cited above).

Contrary to the British legal and administrative situation, in a legal setting such as that of Lithuania the possibility of Convention-compatible “executive review” in the (sole) form of presidential pardon no longer seems to be fit for the purposes of compatibility with Article 3, especially given the fact that, as a rule, no presidential decree is issued in cases where the life prisoner ’ s plea for pardon is rejected by the President – either following the advice of the Pardon Commission or even in disregard of it. As a former constitutional judge, I am tempted to observe that such a practice of abstention would, to put it mildly, give rise to doubts as to its compatibility with the Lithuanian Constitution, under which “[t]he President of the Republic, implementing the powers vested in him, shall issue acts ‑ decrees” (Article 85, emphasis added), but such considerations would be beyond the scope of the instant case. On the other hand, the introduction into the Lithuanian legal system of periodic judicial review of life prison sentences does not appear to be an insurmountable task, albeit one which, for some reasons (to which I shall briefly come back later), the authorities have not yet undertaken. Moreover, introduction of the said judicial review would not require any change to the national Constitution or any fundamental alteration of the institution of presidential pardon, the essence of which, so far, has been clemency or grace. Most importantly, such introduction would be in conformity with the law of the Convention as it stands now and even as it will become – if not in theory (the soothing mantra about the possibility of the “executive alternative” will continue to be repeated), then almost inevitably in practice – in the (perhaps foreseeable) future.

4. “It is emphatically the province and duty of the judicial department to say what the law is” ( Marbury v. Madison , 5 U.S. 1 Cranch 137 (1803)). It is a “dogma or systematized prediction [of what the courts will do] which we call the law” (Oliver Wendell Holmes, Jr., “The Path of the Law”, 10 Harvard Law Review 457 (1897)). Or, to cite one of the former US Chief Justices (in a speech before he was made a Justice), Charles Evans Hughes, “the Constitution is what the judges say it is” (“ Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906-1908” (1908), p. 139).

In the same vein, and whether one likes it or not, the Convention is what the Strasbourg Court says it is . The “systematized prediction” (which for O. W. Holmes was the synonym of “dogma”) as to how cases pertaining to life prisoners ’ “right to hope” will be decided after Vinter and Others and Hutchinson (both cited above) is there.

5. Frankly, some ambiguity remains – and is not insignificant. In the science of logic, this ambiguity has a name. It is just one version of what is known as the Cretan (or Epimenides) paradox. Vinter and Others and Kafkaris (both cited above) – at least those parts of them which deal with the compatibility with Article 3 of an executive pardon as the main instrument for the commutation of life prison sentences (or even the only one, if release on compassionate grounds is not taken into account) – are to some extent at odds with each other and do not cohabit peacefully. They cannot both be relied upon at the same time. To wit, either a discretionary executive pardon, which gives no reasons for rejection and is not amenable to judicial review, is sufficient for the purposes of Article 3 (as in Kafkaris ), or it is not (as in Vinter and Others ). Yet the Court has never acknowledged that Kafkaris has been overruled.

But it has.

6. Under the Court ’ s case-law as it stands today, in cases such as the instant one it is the overall “quality” of the domestic law which is decisive for finding a violation of Article 3, and not so much the conduct of a particular applicant. In fact, that conduct is completely immaterial to finding the said violation: if no other form of review of a life prison sentence is provided for in the domestic legislation, offering life prisoners “hope” for review of their life prison sentences and, consequently, for earlier release, besides pardon by the Head of State or release on compassionate grounds, Article 3 will be found to have been violated from the very moment of imposition of the sentence on the applicant, with no regard being had as to when that sentence was imposed . Such a violation will be found irrespective of whether the applicant made any progress towards rehabilitation, whether there was sufficient time to make such progress and even when he or she made no efforts at all towards his or her own rehabilitation. If this sounds like a drastic exaggeration, see P. and A.T. v. Hungary (cited above). Such is the case-law as it has been developed up to the present day.

7. As to the contradictio in temporis whereby such violations may be – and actually are – found by the Court to have been committed in the pre- Vinter era, that is to say, when the Kafkaris principles really applied, I dealt with this in my dissenting opinion in T.P. and A.T. v. Hungary (cited above). With regard to the respondent State in that case, Article 3 was found to have been violated at the time of the imposition of life sentences on the applicants in that case, even in disregard of the Court ’ s own assessment in Törköly v. Hungary ((dec.), no. 4413/06, 5 April 2011), in which the Court had found the relevant domestic legislative framework to have complied with the requirements of Article 3.

In the instant case, the applicants were sentenced to life imprisonment (or to death, but their death sentences were changed to life imprisonment ) between 1993 and 2010. At that time the prospects for their earlier release, as provided for in the domestic legislation, were no higher than they are now. Perhaps lower. Yet, under the Court ’ s pre- Vinter case-law, such a situation was compatible then with Article 3. It no longer is.

In my dissenting opinion in T.P. and A.T. v. Hungary (cited above), I argued that “the Hungarian courts violated Article 3 because this Court changed its approach ” and asked whether the domestic courts could and should have foreseen such a development ( see paragraph 11 of the dissenting opinion). I doubted it.

The same applies, to a very great extent, to the instant case. Many of my arguments in the said dissenting opinion also apply to the instant judgment, and I shall not repeat them all here.

8. Still, one important aspect distinguishes the instant case from T.P. and A.T. v. Hungary (cited above). In that case, the Hungarian authorities could have quite reasonably expected that, in similar subsequent cases against that State, the Court would remain faithful to itself and coherently follow the line of reasoning it had adopted in Törköly (cited above) and would not declare that the domestic legislative framework, which was found to be in compliance with the Convention only five years earlier, was no longer in harmony with the latter (this was one of the reasons for my disagreement with the majority in that case). However, the Lithuanian authorities did not have this advantage (“right to hope”?), because the instant case happens to be the first one against Lithuania in which the alleged irreducibility of life imprisonment is challenged.

The Lithuanian authorities clearly had to be aware of the prevailing – and very strong – trend in the post- Vinter development of the Court ’ s case-law pertaining to the alleged irreducibility of life imprisonment. They were obliged not to dismiss or disregard this trend, but to take it into account, even if this enters into the domain of pro-active penal policy rather than being strictly confined to the domain of the law of the Convention, as interpreted in the pre- Vinter case-law.

After Vinter and Others (cited above), the Court adopted a series of judgments which made it glaringly obvious that the Government ’ s case was doomed to failure. To highlight just a few: Öcalan v. Turkey (no. 2) (nos. 24069/03, 197/04, 6201/06 and 10464/07, 18 March 2014); László Magyar v. Hungary (no. 73593/10, 20 May 2014); Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12, ECHR 2014 (extracts)); Čačko v. Slovakia (no. 49905/08, 22 July 2014); Trabelsi v. Belgium (no. 140/10, ECHR 2014 (extracts)); Murray (cited above); T.P. and A.T. v. Hungary (cited above); and, finally, Hutchinson (cited above).

It is hard to understand therefore why the Lithuanian authorities chose to tarry until the Court delivered its judgment in the applicants ’ case . They explicitly acknowledged the deliberate character of their procrastination in introducing the indispensable legislative changes (see paragraphs 60 and 181 of the judgment). One could surmise that the said procrastination was due to a lack of political will on the part of the legislative authority (and the executive authority, too, because it is the executive branch which initiates most of the bills), as well as to subservience to public opinion which, as publicly available research allows us to conclude, would have been and probably still is very much against the introduction of even a formal possibility of periodic review of life prison sentences. So much against that it could not be comforted by the reminder, as in Öcalan v. Turkey (no. 2) (cited above, § 207), that the “finding of a violation [of Article 3] cannot be understood as giving the applicant the prospect of imminent release” and that the “national authorities must review, under a procedure to be established by adopting legislative instruments and in line with the principles laid down by the Court in paragraphs 111 ‑ 113 of its Grand Chamber judgment in the case of Vinter and Others ..., whether the applicant ’ s continued incarceration is still justified after a minimum term of detention, either because the requirements of punishment and deterrence have not yet been entirely fulfilled or because the applicant ’ s continued detention is justified by reason of his dangerousness”?

One can speculate as to which will come first: whether the necessary legislative changes will be introduced into the domestic legal system, which would allow for judicial(!) review of life prison sentences, or whether a new case against Lithuania, pertaining to the alleged irreducibility of life imprisonment, will be decided by the Court, in which a violation of Article 3 is found on the same account as in the instant case. Given that, according to the Government ’ s submissions, there are well over a hundred life prisoners in Lithuania (see paragraph 83 of the judgment), such new cases are not at all unlikely.

9. I have no problem with the Court pointing out to the respondent State in the instant case (as it did with a number of other respondent States in previous cases) that its penal legislation must be amended. After all, such amendment would be an important step toward the humanisation of the domestic penal law. This is the positive side – undoubtedly so.

10. What raises concerns is that although the judgment describes in detail – and correctly! – the factual situation of each of the applicants ( in the “Facts” section of the judgment; in this respect the instant judgment is quite some way ahead of and less openly dogmatic, less blinkered than, say, the judgment adopted in T.P. and A.T. v. Hungary (cited above) ), that factual situation is in no way taken into account in the reasoning and the overall assessment of the applicants ’ individual situation. The Court follows reasoning which (as I already argued in my dissenting opinion in T.P. and A.T. v. Hungary ) migrates from one case to another and “ uncritically makes personal self-improvement, in essence a moral phenomenon, virtually a matter of a legal trade-off, devoid of the element of sincere repentance” (see paragraph 15 of my dissenting opinion) by asserting that “in cases where the sentence, on imposition, is irreducible under domestic law, it would be capricious to expect the prisoner to work towards his own rehabilitation without knowing whether, at an unspecified, future date, a mechanism might be introduced which would allow him, on the basis of that rehabilitation, to be considered for release” (see Vinter and Others, cited above, § 122; László Magyar , cited above, § 53; and Harakchiev and Tolumov , cited above, § 246; emphasis added).

The “capriciousness” clause exempts the Court from examining whether an applicant made any progress on “working toward his rehabilitation”.

11. In the instant judgment, the Court did not incorporate verbatim the doctrinal statement quoted above (at least it did not use the word “capricious” when speaking on its own behalf; but see the arguments of the third-party intervener in paragraph 152 of the judgment).

Still, that idea is there.

12. The applicants complained that although a “life prisoner was entitled to know, at the start of his sentence, what he must do to be considered for release”, the Government “provided no indication that ... a rehabilitation plan had been drawn up for each applicant to provide the necessary guidance for meaningful reform” and that “[i]n the absence of any such tangible plan for release at least at some point in the future and with no clear indications from the rejection of the pardon plea, [they] had been left in ultimate uncertainty and despair” (see paragraph 131 of the judgment).

The Court uncritically agreed, by the way, without even taking a closer look at these rehabilitation plans so that their “tangibility” could be examined. What is more, although the Code for the Execution of Sentences and the Rules for Correctional Facilities explicitly require that such plans must be in place, and the Government assert that they are in place, and although a number of social rehabilitation programmes providing life prisoners with assistance and guidance for meaningful reform are organised at the prison in which the applicants are being held, and the applicants themselves were involved in various programmes of adaptation, social rehabilitation and personality transformation (see paragraphs 101-03 and 144-46 of the judgment), none of this is taken into consideration. The applicants assert that they do not “know” what they “must do” – and the Court believes them, whatever the Government say. The Government submit that information about prisoners ’ personality and behaviour, and the results of their social rehabilitation, is kept in their prison file (see paragraph 147 of the judgment), but the applicants (two of them) argue that they were not shown their character assessments (see paragraph 130 of the judgment). But did the applicants ask for this information? They do not say so. Which means that they did not ask. Still, the Court prefers the applicants ’ assertion to that of the Government.

As if it were obvious that one can win the lottery without buying a ticket.

The applicants ’ progress toward rehabilitation, if any, was likewise not looked into by the Court. It was not even considered, even incidentally, whether, objectively, there had been sufficient time for them to make such progress, at least with regard to some of the applicants who, at the time their applications were lodged with the Court, had served only three and a half years of their prison sentence (see paragraph 18 below). The Court merely found it established that “presidential pardon in Lithuania de facto does not allow a life prisoner to know what he or she must do to be considered for release and under what conditions” (see paragraph 181 of the judgment).

13. To say that expecting the prisoner to work towards rehabilitation if he is not promised the prospect of release is “capricious” is an overstatement (here I repeat what I wrote in my dissenting opinion in T.P. and A.T. (paragraph 15)) . If it is “capricious” to expect the prisoner to work towards his own rehabilitation without what amounts to a “legislative promise” that he will be “considered for release”, and if, moreover, it is “capricious” to expect that a life prisoner himself should know, from the outset of his sentence, “what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought” (see Vinter and Others, cited above, § 122 ), then really nothing else matters . Neither when the life prison sentence was imposed, nor for what it was imposed , nor whether the prisoner made any progress towards rehabilitation, nor whether he made any efforts towards rehabilitation, nor the legitimate expectations of society , whatever they may be. What matters is the “legislative promise” (or the absence thereof) and the predictability of its being kept.

14. Thus, t he finding of a violation of Article 3 in this case (as well as in a number of other similar cases) is – and will be – ­ based on the fact that the “quality” of the domestic law was insufficient for the purposes of Article 3, as interpreted in the Court ’ s case-law, because the domestic law does not provide for the possibility of review of life imprisonment sentences. The applicant ’ s conduct does not matter at all, let alone his progress towards rehabilitation.

15. But that conduct warrants being looked into – both as a matter of principle and in the instant case.

If and when one looks into the actual conduct of the applicants, one can hardly continue to believe, let alone aver, that they did not “know what [they must] do to be considered for release and under what conditions” (see paragraphs 12 and 13 above).

Even conceding that some of them might not know everything they must do , they definitely knew – or should have known! – what they must not do , but nevertheless did .

The things that some of the applicants actually did would disqualify them from being considered for release in any legislative setting .

Let us briefly summarise these acts.

16. Mr Matiošaitis: “refused to work, explaining in writing that he would not work with prisoners belonging to a lower caste”; “had not made serious resolutions” as to his guilt; “a knife, sharpened pieces of tin, needles and other prohibited objects were found in his cell” (see paragraph 12 of the judgment).

Mr S. Katkus: admitted his guilt only “partly”; “had been found slightly inebriated” (see paragraph 24 of the judgment).

Mr Beleckas: had “been found in possession of a mobile phone, which was forbidden under the prison regulations”; had “no remorse about the crimes he had committed and had not made any serious resolutions”; “committed a number of other small violations of the prison rules”; was “likely to attempt to escape”; “prohibited objects had been found in his cell” (see paragraphs 29 and 30 of the judgment).

Mr Lenkaitis: “had committed four disciplinary violations, including use of physical violence against another inmate and possession of prohibited objects”; “had only partly acknowledged his guilt” (see paragraph 36 of the judgment).

Mr Kazlauskas: after being transferred to Pravieni š k ė s Correctional Institution “to serve the remainder of his life imprisonment sentence ... the applicant attempted to kill another life prisoner by stabbing him with a knife [and was] convicted of attempted murder”; “partly acknowledged his guilt but had shown no remorse at all for his crimes”; explicitly asked “to be transferred back to Luki škės P rison [from Pravieni š k ė s Correctional Institution] and never to be returned to freedom, because he was afraid of liberty” (see paragraphs 41 and 42 of the judgment). Of course, as the years went by he might have changed his mind, but this detail is somewhat telling.

17. So if any life prisoner (not necessarily any of the five dealt with in paragraph 15 above) argues that his personality has been transformed for the better to the extent that he is now ready for fully-fledged reintegration into society as a valuable member, but does not know what to do in order to be eligible for earlier release, albeit by way of presidential pardon, here – in a nutshell – are some tips. Begin by erasing the criminal sub-culture from your personality by not regarding other people as belonging to lower castes. Fully admit your guilt for the crimes committed. Feel remorse for you have done. Make serious resolutions about it. Do not commit disciplinary violations. Do not hide prohibited objects in your cell, especially knives or sharpened pieces of tin. Do not consume alcohol in prison – it is illegal. Do not behave in such a way that the authorities have reasonable grounds to believe that you will attempt to escape. And, of course, do not use physical violence against anyone. Trying to kill someone is also a no-no. Is it “capricious” to expect that persons spending their life behind bars ought to know this?

Of course, the list is not exhaustive.

18. I do not want to generalise and to draw the same conclusion as to the disqualifying nature of the applicants ’ conduct regarding each and every one of them.

In particular, the case file does not contain any prima facie disqualifying information regarding the second applicant, Mr Maksimavičius. Still, having been sentenced to death in 1993 and having had this sentence changed to life imprisonment in 1995 ( a propos , by way of a presidential pardon(!), see paragraphs 16 and 17 of the judgment), this applicant (the longest-serving of all of them) has not yet completed the period of twenty ‑ five years which, according to the Court ’ s case-law, is the maximum indicative term after which the sentence has to be first reviewed (see Vinter and Others , cited above, § 120, and Murray , cited above, § 99). This, however, does not mean that the review of his sentence, albeit by way of presidential pardon, could not take place earlier (and, indeed, he could plead for presidential pardon after serving ten years of his sentence, as provided for by the domestic legislation). It is not clear, however, why his pleas for pardon were rejected in 2012 and 2014 (see paragraph 20 of the judgment). This applicant claims that his plea was rejected despite a positive character assessment, and that he was left with an “open question as to what else he must do, and how and in what manner he should seek to improve in order to demonstrate that he posed no danger to society and was ready to be re ‑ integrated” (see paragraph 130 of the judgment, emphasis added). This is rather convincing, even very convincing (at least, if the eternal philosophical question as to the goals of punishment is set aside). Here, one might say, a real problem exists – and not only that of the particular prisoner ’ s rights, but also of the transparency of executive decisions.

19. As to the other two applicants not yet mentioned, Mr Gervin and Mr Svotas (the seventh and eighth applicants), they were sentenced to life imprisonment in 2010 and are still not entitled to apply for presidential pardon. At the time their applications were lodged with the Court, they had served only three and a half years each (see paragraphs 46, 48, 49 and 51 of the judgment). Could they realistically expect to be released at that stage? Most likely not.

Are the complaints of these two applicants also rooted in the fact that they do not “know what [they must] do to be considered for release and under what conditions” (see paragraphs 12, 13 and 15 above)?

Well, there are two things which they really know – or at least should know – that they must do : (i) serve some considerable period of time in prison (yes, considerable, because, after all, it was not the theft of a bike that they were convicted of) and (ii) do it without breaking prison rules. It is not “capricious” at all to expect them to have this knowledge. As it transpires from the case file – and I observe this to the benefit of these two applicants – they have successfully complied, so far, with the second condition. As to the first one, it must be met too, and it is not “capricious” at all for the State to require this, especially bearing in mind that the State – let it not be forgotten – also represents the victims of the crimes of life prisoners, including those whose lives were deprived of any hope when their dear ones were murdered by those who claim their “right to hope” (not only the two applicants dealt with here). What about some balancing of these two hopes?

Unfortunately, there is not a trace of such remembrance of the victims in the Court ’ s post- Vinter case-law.

20. Also, Mr Katkus (already mentioned in paragraph 11 above), although eligible, did not apply for presidential pardon. Had he applied for it, it is very unlikely that his plea would have been granted, given that he admitted his guilt only “partly” (see paragraph 16 above).

21. How then is it possible in all seriousness (?!) to believe and assert that, at least with regard to these three applicants (Mr Gervin, Mr Svotas and Mr Katkus), there were “no clear indications from the rejection of the pardon plea” and that it was the absence of these “clear indications” which left the applicants “in ultimate uncertainty and despair” (see paragraph 12 above, emphasis added)? And how is it possible with no less seriousness to believe and assert that the other applicants, with the possible exception of Mr Maksimavičius, especially given their disciplinary record while in prison (and in the case of Mr Kazlauskas even his criminal record), did not know what the factual basis was for the rejection of their pleas? Did they not themselves contribute to their alleged “despair”?

22. I do not intend to suggest that all the applicants should necessarily have had their pleas for presidential pardon rejected on certain disqualifying grounds, or that those of the applicants who fully admitted their guilt and showed remorse and whose conduct was not tainted by various disciplinary violations, let alone crimes, should have had to wait for an inordinate number of years to submit such pleas. The Lithuanian legal framework is really in great need of improvement as regards the very restricted possibility for commutation of life prison sentences.

23. My major concern (in addition to the contradictio in temporis dealt with in paragraph 7 above, but also – even more extensively – in my dissenting opinion in T.P. and A.T. v. Hungary (cited above) ) is that the Court ’ s case-law pertaining to the alleged irreducibility of life imprisonment has been developed to the point where the Court confines itself to the examination and assessment not of the actual infringement of an applicant ’ s rights under the Convention, but of the “quality” of domestic law alone. Which equates, in Hans Kelsen ’ s words, to be(com)ing not a “court of men” but a “court of norms” – a characteristic which, so far, has been reserved for constitutional courts. Was that the intention of the founders?

24. One does not need to re-read David Hume to appreciate that there is a great difference between “ought” and “is”, between Sollen and Sein , between devoir- ê tre and ê tre . It goes without saying that the application, to a particular person, of even a “very good” law does not guarantee that that person ’ s right under the Convention will not actually be violated. In the same vein, the application of even a “very bad” law does not automatically mean that the right of a particular person has actually been violated. It is by no means impossible that that person himself or herself may have contributed to the fact that the right in question cannot be enforced in his or her case, whatever legislative framework is in place . Nor is it impossible that the actual conduct of a person and the lack of efforts and progress (which – let it be stressed once again – requires time) towards changing that conduct to make it more socially acceptable may mean that what, in the abstract sense, is the right under the Convention is not the enforceable right which that person actually enjoys.

25. By construing and applying the Convention, in so far as the latter sets forth requirements pertaining to life imprisonment (but, alas, also in relation to an increasing number of other aspects), in such a manner that the facts pertaining to the applicants ’ situation no longer matter (even if they are absolutely correctly described in the relevant part of the judgment), and confining itself to the examination and assessment – effectively, in abstracto – of the domestic legislative setting, the Court resembles – time and again, and more and more – the supranational constitutional court which it was not meant to be(come) .

[1] . The Lithuanian President’s internet site uses terms “Presidential Clemency” and “Presidential Pardon” interchangeably. Article 84 of the Lithuanian Constitution reads that “The President shall grant pardons…”. It this text the term “Presidential Pardon” is used for consistency.

[2] . Under Lithuanian law, after ten years in Luki š k ė s Prison a life prisoner may be transferred to a “correctional home ( pataisos namai )”, where the regime is milder than that in Luki š k ė s Prison. On the facts of the case it transpires that even though there is more than one “correctional home” in Lithuania (there are ones in Vilnius, Alytus, Kybartai, Marijampol ė and Pravieniškės ), life prisoners are transferred to only one correctional home - Pravieni škė s Correctional Institution . In the domestic court decisions on transfer the term “correctional home” is used mostly, without specifying that that is Pravieni škė s Correctional Institution. Therefore, in the Court’s judgment the terms “correctional home” and “Pravieni škė s Correctional Institution” are used interchangably.

[3] . Until the President of the Republic was elected, the Speaker of the Seimas was the Acting President.