CONCURRING OPINION OF JUDGE WOJTYCZEK

(Translation)

1. This judgment touches on an important question that is currently the subject of public debate in a number of countries and is a matter of significant public concern, namely the choice of penal policies.

2. I would note in that context that the Court ’ s role was defined restrictively in Article 19 of the Convention: “to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. Furthermore, under Article 3 of Protocol No. 1 to the Convention, the States Parties have undertaken to hold elections under conditions ensuring the free expression of the opinion of the people in the choice of the legislature. The implementation of this Article presupposes the establishment of a parliament with legislative power and the ability to make policy choices expressed through legislation. It is not for the Court to interfere in the political sphere, which falls within the exclusive competence of national parliaments and governments. Hence the choice of penal policies is a matter for national parliaments. They may, in principle, opt either for a more repressive policy, requiring a greater number of prison places, or for a more lenient policy, requiring a lower number of places in custodial facilities.

It should equally be borne in mind that criminal penalties, whether or not they entail deprivation of liberty, constitute a crucial interference in the sphere of individual liberty. If such interference falls within the ambit of the rights safeguarded by the Convention, it must be proportionate to the weight of the values that the Convention protects. When limiting the rights safeguarded by the Convention, the State should choose instruments entailing the least restriction of those rights.

On the other hand, the Convention may require the implementation of appropriate criminal legislation that is capable of ensuring effective protection of the rights and values proclaimed in that treaty. The lack of severity of a criminal penalty in the case of certain types of human rights violations may engage the State ’ s responsibility. Insufficient interference with individual freedom may thus amount to a violation of the Convention (see, for example, Nikolova and Velichkova v. Bulgaria , no. 7888/03, §§ 61 ‑ 62, 20 December 2007; Ali and AyÅŸe Duran v. Turkey , no. 42942/02, § 66, 8 April 2008; and A. v. Croatia , no. 55164/08, §§ 66-67 and 78, 14 October 2010).

3. I note that in a number of judgments concerning prison overcrowding, the Court has emphasised that States are free to choose the means to redress this problem and has sought to remain neutral in disputes concerning the choice of penal policies (see, for example, Torreggiani and Others v. Italy , nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10, 8 January 2013, and Neshkov v. Bulgaria , nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015).

4. I would observe that in the present case the Court has expressly stated a position as to what penal policy would be advisable, firstly by advocating measures to reduce the number of people receiving custodial sentences (see paragraphs 115 and 118 of the judgment) and secondly by expressing reservations regarding the possibility of solving the problem through a new prison-building programme (see paragraph 119 of the judgment).

It is true that research in social science has shown that harsh penal policies do not have the desired effects. However, de lege lata , the Court does not have jurisdiction to rule on the rationality of choices made in the field of penal policy.

5. In order to be able to make rational recommendations on changes that would be advisable in the field of penal policy, it is essential to carry out a detailed prior examination of a number of factors, in particular the nature and scale of crime in the society in question, the criminal law in force and the number of prison places viewed in the context of existing crime levels. Any recommendation in this field that was not based on careful analysis of the above considerations would have no persuasive force.

However, the Court has issued recommendations on future penal policy without having carried out a sufficiently thorough analysis of the aforementioned questions. It does not seem convincing to make recommendations on softening Romanian penal policy without first having shown that the current state of criminal law in Romania would enable less severe penalties to be introduced in the specific context of crime levels in that country ’ s society without undermining the protection of fundamental values and individual rights. Moreover, even the least punitive penal policies will necessarily lead to overcrowding in prisons if the number of prison places remains insufficient in relation to the needs resulting from a particular crime level. In general, a rational penal policy must above all, as far as possible, be tailored to the nature and extent of crime rather than to prison capacity, although the question of the optimum allocation of the available resources is an important factor which must inevitably be taken into account.

6. I would observe that the question of policy choice in this sphere is especially sensitive, given that measures taken by the Romanian government to relax criminal policy on corruption (Government Emergency Ordinance no. 13/2017 on amending and implementing Law no. 286/2009 on the Criminal Code and Law no. 135/2010 on the Code of Criminal Procedure, published in Official Gazette no. 92/2017 and repealed on 5 February 2017 – Ordonanţa de urgenţă nr. 13/2017 pentru modificarea şi completarea Legii nr. 286/2009 privind Codul penal şi a Legii nr. 135/2010 privind Codul de procedură penală ) gave rise to mass demonstrations across the country .

[1] Rectified on 9 June 2017: Mr Mavroian was referred to as the second applicant.

[2] http://anp.gov.ro/informatii/dinamica-efectivelor-2

[3] . https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805c8e2d