DISSENTING OPINION OF JUDGE KŪRIS

1 . I have not joined my distinguished colleagues in finding that in the present case there has been a violation of Article 3 of the Convention. On the surface, this opinion may seem to be in some disagreement with the Court ’ s case-law, as expounded in 2013 in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts)) and just a few months ago in Murray v. the Netherlands ( [GC], 10511/10, §§ 58-65, 26 April 2016) . This is not so. True, I do find the case ‑ law pertaining to life imprisonment to be to some extent problematic. But only to some extent, and not in essence. What I find more problematic is how that case-law has been employed in the present case. The manner in which it has been employed renders the attribution of the actual violation to the respondent State not really proven.

2 . The finding of a violation of Article 3 is based on two circumstances. The majority sums them up in paragraph 50 of the judgment:

“In view of the lengthy period the applicants are required to wait before the commencement of the mandatory clemency procedure, coupled with the lack of sufficient procedural safeguards in ... the ... review procedure as provided for by the new legislation, the Court is not persuaded that, at the present time, the applicants ’ life sentences can be regarded as reducible for the purposes of Article 3 of the Convention”.

The forty-year “waiting” period in issue may appear to be the main problem, especially given the fact that the judgment deals with this aspect more extensively than with the “procedural safeguards” (mostly related to the mandatory clemency procedure). Like the majority, I also find this lengthy period difficult to explain in strictly penological terms. However, the expression “coupled with” suggests that the two elements are cumulative. Therefore, the forty-year period in itself might not have sufficed for finding a violation of Article 3 and, vice versa, the “lack of sufficient procedural safeguards” could possibly have been alleviated by a relatively short “waiting” period. In my opinion, the manner in which these two elements have been cumulatively invoked in the present case is not unquestionable. For instance, a wholly impracticable period which a hypothetical applicant should complete in order to become eligible to request mandatory clemency could in itself render such a request – and, by extension, the possibility (and hence the hope) of release – illusory. Still, with regard to the two applicants in the present case this period is not impracticable (compare paragraph 6 below).

3 . Let us go back to 2006 and 2010, when the applicants were sentenced to life imprisonment. Vinter and Others (cited above) was not in place, including its much-noted requirement that a prospect of release and a possibility of review “must exist from the imposition of the sentence” (as summarised in Murray , cited above, § 99).

Instead (with regard to the second applicant, who was sentenced at a later date than the first one), at that time there was the still very recent judgment adopted in Kafkaris v. Cyprus ([GC], no. 21906/04, §§ 68-76, ECHR 2008), which did not contain any such requirement. Did Hungary have an obligation to comply with that requirement of Article 3, as interpreted in the Court ’ s case-law, before it was introduced by this Court? Could it have done so?

4 . What is more, in 2011 the Hungarian Government were given an explicit indication and guidance by this Court to the effect that the forty ‑ year period established by that country ’ s legislation did not raise an issue under Article 3. In Törköly v. Hungary ((dec.), no. 4413/06, 5 April 2011), the Court considered that “it has not been established that the applicant has been deprived of all hope of being released from prison one day” (§ 2).

More specifically, in Törköly , that lengthy period did not raise an issue under Article 3, either in itself or “coupled with” the procedure of presidential pardon, which in its turn was considered at that time, from the perspective of the Convention, to be a sufficient remedy for seeking release. As was stated in Kafkaris (cited above) as late as 2008:

“[Notwithstanding that] the prospect of release for prisoners serving life sentences in Cyprus is limited, any adjustment of a life sentence being only within the President ’ s discretion, subject to the agreement of the Attorney-General [and despite] certain shortcomings in the ... procedure, ... life sentences in Cyprus [cannot be seen as] irreducible with no possibility of release; on the contrary, it is clear that in Cyprus such sentences are both de jure and de facto reducible” ( § 103).

5 . Even if later judgments of the Court went much further than Kafkaris (cited above) in tightening, step by step (but in rapid succession), the Convention standards for the review of life sentences, the position of principle quoted above was never openly abandoned in the Court ’ s case ‑ law. On the contrary, it was reiterated (not necessarily using the same phrasing) in a number of later judgments (see, for example, Iorgov v. Bulgaria (no. 2) , no. 36295/02, §§ 58-60, 2 September 2010, and Harakchiev and Tolumov v. Bulgaria , nos. 15018/11 and 61199/12, § 244, 8 July 2014; but compare and contrast László Magyar v. Hungary , no. 73593/10, § 58, 20 May 2014). Most recently, these doctrinal provisions were reaffirmed in Murray (cited above) by the Grand Chamber, which stated as follows:

“ ... presidential clemency may ... be [considered as] compatible with the requirements flowing from [the Court ’ s] case-law” ( § 99).

Thus, the said tenet is not history. It continues to be the law of the Convention. It is also quoted in the present judgment ( see paragraph 38).

6 . It is difficult to discern much difference between the situation examined in Törköly (cited above) and that under examination in the present case (despite the formal, although on some points not unimportant, amendments to the relevant national statute). If, however, one can be discerned, it is that in Törköly the Court observed:

“ ... the applicant will become eligible for conditional release ... when he will be 75 years old. Notwithstanding his representations to the effect that his life expectancy in statistical terms may be shorter than that, the Court is satisfied that the judgment imposed on the applicant thus guarantees a distant but real possibility for his release” (ibid.).

This argument is, of course, shaky. It is hardly plausible. Nevertheless, the message which such reasoning by the Court sent to the Hungarian authorities, as late as 2011, was unambiguous. Bear in mind that this message was sent to the national authorities after the applicants in the present case had been sentenced.

Moreover, compared to the “life expectancy argument” employed in Törköly , in the present case the applicants will both be 65 when they become eligible for the mandatory clemency procedure. Not an insignificant difference.

How could the Hungarian authorities foresee that a “distant but real possibility for release” of a person who must wait till he is 75 would turn into impossibility for a person who will be eligible at 65?

7 . The majority states:

“ ... in the light of the Grand Chamber ’ s subsequent ruling in Vinter and Others ..., the Court considers that it cannot adopt the same approach in the present case” ( § 47).

Thus, Törköly (cited above) is now overruled , and this overruling is explicitly acknowledged . (Such open acknowledgments are a rare breed in the Court ’ s judgments.) The Court has finally said that after Vinter and Others (cited above) there can be no more reliance on Törköly !

But – for reasons nowhere explained(!) – this was not stated in another very recent post- Vinter case against the same respondent State, namely László Magyar v. Hungary (cited above) . On the contrary, in that case the Court explicitly contrasted the situation under consideration with that dealt with in Törköly . Hence, the Court treated the latter as valid law (see László Magyar , §§ 55-56), a precedent potentially to be taken into consideration. This, with hindsight, seems even more surprising since the decision adopted in Törköly was contested in László Magyar both by the applicant (see § 30) and by the third-party intervener (see § 41).

What were the Hungarian authorities to make of all that? Only that in 2014 Törköly was still valid law, that is to say, whatever requirements stemmed from László Magyar had to be read together with and not in disregard of those stemming from Törköly .

8 . On the basis, inter alia , that Törköly (cited above) – today(!) – no longer constitutes valid law, t he Chamber found a violation of Article 3 of the Convention.

“[T]here has been a violation of Article 3” says the judgment (point 3 of the operative part). A typical formula, used in all judgments of the Court in which a violation is found.

9 . Violations of law, not excluding the law of the Convention, are not merely something which “has been”. Violations of law are committed . And the commission of a(ny) violation of law does not just exist like space and time, which, as science authoritatively tells us, have no beginning. Violations of law do have a “beginning”, namely the date when they were committed. They also – no less importantly – have a transgressor, a “contributor”, without whose intervention (or lack thereof) there would not have been a violation. Even if a violation is attributed to a Member State (which is a useful, even an indispensable legal fiction), in fact there always has to be an institution or an official of that State whose intervention makes the violation a reality.

10 . I ask: when were the violations of the a pplicants ’ rights under Article 3 actually committed, and by whom ? (Unlike the majority, I use the plural because there are two separate applicants who are not even remotely related to each other; hence, in fact, two violations of Article 3 have been found.)

Several answers to these questions are possible.

11 . The first version is the following. It is apparent from the reasoning that these violations were committed by the Hungarian courts , because it was the Hungarian courts which sentenced the applicants to life imprisonment in the absence of “a prospect of release and a possibility of review [at the time of] the imposition of the sentence”. (In order to save space and time, I will not deal separately with the comparable episodes entailing the upholding of the judgments by the appellate courts and the dismissal of the applicant ’ s petitions for review by the Supreme Court.)

Thus, ironically enough, these courts violated the Convention by performing their constitutional function, namely by administering justice according to the applicable national law and sentencing the applicants to life imprisonment (no one claims undeservedly) in a legislative environment which some years later was found by this Court to be incompatible with Article 3 of the Convention. Both the performance of the courts ’ constitutional function and the violation of the Convention merged, as in an amalgam, into a single act of administration of criminal justice.

Moreover, the courts violated the Convention despite the fact that, at the material time , that legislative environment was considered by the Court not to be Convention-unfriendly and this consideration was explicitly stated in Törköly (cited above).

To put it briefly, the Hungarian courts violated Article 3 because this Court changed its approach . I do not want to be misunderstood. I am not saying that the change was not for the better. Still, should the domestic courts (not only Hungarian) have foreseen such a development? Could they have done so? I doubt it.

12 . It may be said that, as it now transpires, the domestic courts were faced with an unenviable choice between (i) sentencing the applicants to life imprisonment in a domestic legislative environment which was not Convention-compatible (they had somehow to foresee this incompatibility) and (ii) imposing on them other sentences which would not be found by this Court to be incompatible with Article 3, even if the domestic law required life imprisonment to be imposed for the crimes committed. Faced with such an invidious choice, the domestic courts could hardly be held responsible for the violations found in the present case.

13 . But maybe the violations in question were not committed by the courts? Still, if not the courts, who should be held responsible for the violations?

Let us explore the alternative version. One could assert that it is the President of the Republic who has to be considered to have been the main “contributor” to the unlawful interference with the applicants ’ rights under Article 3. For it was he who, in 2013 and 2014, dismissed the applicants ’ requests for pardon and commutation of their life sentences to twenty-year fixed terms and thus effectively deprived them of any hope of early release. At least, it was his word (or deed, or decision) which was the last one in bringing about, at the national level, the result that the applicants were not released. One could assert that, even if the applicants might have entertained such a hope when applying for pardon, that hope was effectively reduced to nought by the President of the Republic.

14 . First of all, one has to bear in mind that the time served in prison by the applicants after their sentencing and up to the time of examination of the present case – eleven years by the first applicant and six years by the second applicant – is significantly shorter than the twenty-five years after the imposition of a life sentence which is the maximum indicative term after which that sentence has to be first reviewed (see Vinter and Others , cited above, § 120, and Murray , cited above, § 99).

The Hungarian Government (and, one can assume, not only they) saw that twenty-five year period only as an indication of a “tendency” rather than an “accepted standard” (see paragraph 31 of the judgment).

That period really is not clear-cut, a fact acknowledged also by the majority in this case ( see paragraph 44). The judgment rightly recalls, in paragraph 42, the case of Bodein v. France (no. 40014/10 , 13 November 2014) , where the formal thirty-year period was not held to be incompatible with the Article 3 requirements (as interpreted by the Court in Vinter and Others , cited above), because in that case the “ de facto ” period was twenty ‑ six years, since the applicant had been deprived of his liberty some four years before the imposition of the life sentence.

One can only guess whether the Court would have adopted the same position in Bodein had the applicant in that case been deprived of his liberty before the imposition of the life sentence for, say, two years, thus extending the twenty-six year period to twenty-eight years. I shall not engage in further speculation on this matter. I mention this only as an illustration of the sorts of difficulties which inevitably arise when the Court, indeed like a “real” legislator, creates an “exact” (albeit somewhat flexible) norm, a “numerical” standard which, although nowhere to be found in the text of the Convention, is nevertheless applicable from now on in the Court ’ s case-law and thus is imposed on the Member States. The latter are supposed to feel comforted by the reiteration of the assurance that they still enjoy some margin of appreciation in legislating on matters of penal policy (albeit a visibly narrower one than even a short time ago). Anyway, the difference between the twenty-five-year indicative term and the eleven years and six years actually served, respectively, by the applicants in the present case would be too obvious to be disregarded if the Court were to proceed to examine not only the legislative environment but also (and first of all) the factual situation of the applicants before it.

In fact, we are dealing with even shorter terms – from the time when their petitions for review were dismissed by the Supreme Court (because only then did they become eligible to apply for a “general” pardon) to the time when the applicants requested pardon and commutation of their sentences to twenty-year fixed terms.

15 . Of course, I take account of the fact that the applicants petitioned the President of the Republic not under the mandatory clemency procedure but by taking advantage of the possibility of an earlier “general” pardon (which, however, was found by the majority to be insufficient to offset the deficiencies of the mandatory clemency procedure). I also take account of the fact that the counting of the maximum twenty-five-year indicative term from the imposition of the life sentence is justified by the ratiocination that it is from that day onwards that the life prisoner must know what he or she must do to be considered for release and under what conditions. The comparison of the time of actual deprivation of liberty after the imposition of the life sentence with the twenty-five-year maximum indicative term provided for in the preceding paragraph is not aimed at ignoring the aforementioned justification . (That said, I am not convinced by the reasoning whereby “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” (emphasis added). This reasoning migrates from one case to another (see, for example, Vinter and Others, cited above, § 122; László Magyar , cited above, § 53; and Harakchiev and Tolumov , cited above, § 245) and thus 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. To say that expecting the prisoner to work towards rehabilitation if he or she is not promised the prospect of release is “capricious” is, to put it mildly, an overstatement. But this is by the way.)

However, as already mentioned, at the time when the applicants ’ requests were dismissed by the President of the Republic, even these periods were significantly shorter: by then, the first applicant had served seven years (only five years after the dismissal of his petition for review by the Supreme Court), and the second applicant had served four years (three years after the dismissal of his petition for review).

Given the fact that the first applicant was convicted of murder committed with special cruelty and abuse of firearms, aimed at covering up a previous crime, and the second applicant of double murder and abuse of firearms, the dismissal by the President of the Republic of their requests for pardon and the commutation of their sentences does not appear at all unreasonable . I wonder whether the Head of any other Member State would have adopted a different decision in these situations, however deficient the national legislative environment might have been. Thus, Vinter or no Vinter , I am unable to see how the President of the Republic could be criticised, from the perspective of the Convention, for his intervention (or, to be more precise factually, his non-intervention).

16 . Again, I ask: did the applicants realistically expect that their request for pardon could be granted? Could they have entertained a hope of being pardoned already at that stage?! I admit that they could have hoped, but was that hope rooted i n naiveté (in which case it was hardly a hope but a fantasy) or in the “right to hope” as a legal category, as expounded in the Court ’ s post- Vinter case-law?

17 . Although the applicants complained that “ the possibility foreseen by the new procedure to consider a convict ’ s release only after forty years ... fully disregarded the changes in the applicants ’ personality and in the level of their dangerousness to society, or their efforts of changing and being able to be reintegrated into society” (see paragraph 25 of the judgment), there is not a single word in the whole judgment which could allow for any consideration of these matters. The applicants ’ progress, if any, is not even hinted at.

18 . This omission is not incidental, because what the judgment is concerned about is obviously not the applicants ’ factual situation and not the actual damage done to them by the alleged violations. Thus, it is not concerned with the question which should be fundamental for this Court in every case.

That underlying question is: has injustice been done to the applicants in this particular case ?

My prima facie answer would be: most probably not. Or maybe: not yet. But I could also assume that there have indeed been violations of the applicants ’ rights under Article 3. However, it is not possible to convincingly answer this question without a thorough examination of the applicants ’ factual situation. And that examination is what the present judgment lacks.

19 . The indifference (or insensitivity) to the applicants ’ factual situation, which, in my opinion, (also) had to be examined in the present case, culminates in one more striking omission which cannot be passed over in silence.

In Vinter and Others (cited above) the Court, having found a violation (or rather, violations) of Article 3, nevertheless considered it crucial to state:

“ ... the applicants have not sought to argue that, in their individual cases, there are no longer any legitimate penological grounds for their continued detention. The applicants have also accepted that, even if the requirements of punishment and deterrence were to be fulfilled, it would still be possible that they could continue to be detained on grounds of dangerousness. The finding of a violation in their cases cannot therefore be understood as giving them the prospect of imminent release” ( § 131).

The Grand Chamber here set a very important standard against misinterpretation of its judgment(s). This standard must be followed. It indeed was (and I hope will be) followed in subsequent cases (see, for example, Harakchiev and Tolumov (cited above, § 268), and László Magyar (cited above , § 59).

Not in the present case though. Here, there is not even a hint of changes in the applicants ’ personality (if any) or a diminished level of dangerousness to society (if any), or of efforts to change with a view to being reintegrated into society (again, if any). Nor is there in the present judgment any caveat similar to the one quoted above.

20 . What does that omission suggest? At the very least it suggests that, irrespective of any efforts on the part of an applicant aimed at his or her rehabilitation and eventual reintegration into society (and even where his or her conduct runs counter to these goals), there will still be a violation of Article 3 if the Court finds major deficiencies in the domestic legislative environment. This would also apply to recalled criminals, to those life prisoners who do not admit their guilt, those who feel no remorse for their most heinous criminal acts and even those who commit further crimes while in prison. To all convicted prisoners.

The Court will find a violation no matter what – automatically, indiscriminately, in whatever circumstances.

21 . The majority states as follows:

“ ... alone the fact that the applicants can hope to have their progress towards release reviewed only after they have served forty years of their life sentences is sufficient for the Court to conclude that the new Hungarian legislation does not offer de facto reducibility of the applicants ’ whole life sentences. Such a long waiting period unduly delays the domestic authorities ’ review of ‘ whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds ’ ...” ( paragraph 48)

Once the earlier “general” pardon is dismissed, as if on its own “merits”, as insufficient (see paragraph 15 above), it is much easier to find the forty ‑ year “waiting” period unacceptable. But more important is the association of the life prisoner ’ s hope solely with that period and its dependence on that factor alone, however important. I fail to see how hope, which – despite the increasingly extensive use of this term in the Court ’ s case-law pertaining to life imprisonment – is (at least primarily) not so much a category of law as one of psychology and morale, can appear (or disappear) depending on a statutory period alone. (If personal self ‑ improvement is sought only for a legal trade-off, then it probably can.) Hopes grow and are dashed to the ground not because of laws alone.

22 . Life prisoners, as a rule, are convicted of aggravated murder (often multiple) and of other abhorrent and egregious crimes. Therefore, a more nuanced – and thus less dogmatic – approach would also have been desirable, whereby the life prisoners ’ “right to hope” (of release) is juxtaposed and contrasted with the no less legitimate hope that the perpetrators will serve at least some time and make some effort towards self-improvement before their hope – which, as something belonging to their inner world, no one can take away from them – becomes rooted in, or supported by, what is called the “right to hope”, that is, hope as a legal category.

That “other” hope with which the hope of the life prisoners could be juxtaposed is the hope of society, including those of its members on whom the perpetrators inflicted unspeakable suffering and whose lives they made (yes!) hopeless and at times meaningless by murdering their dear ones. For some reason, the Court does not speak of their crushed hopes in terms of a “human right” or any other “right”. But there is a world outside the ivory towers of courts.

23 . Again, I take account of the fact that the Court ’ s jurisprudence, as it stands now, is not very conducive to such nuances. Even so, that case-law – at least the Grand Chamber judgments in Vinter and Others and Murray (both cited above) – does not openly suggest, let alone require, that the Court should refuse even to look into the factual situation of an applicant, rather to the contrary (see, for example, Vinter , §§ 119-120, and Murray , §§ 110 and 116).

24 . The indifference I mentioned to the factual situation also means that the Court, at least in this case, is in fact concerned with the “quality of law” alone. The concept of the “quality of law applicable at the material time” served as a basis for finding a violation of Article 7 in Kafkaris (cited above, point 4(a) of the operative part), but not of Article 3 (point 1 of the operative part).

I can readily accept that the relevant Hungarian law, as such, is not above reproach from the point of view of Article 3 (and maybe other Articles of the Convention). I have already stated that the forty-year “waiting” period is difficult to explain in strictly penological terms; for some applicants it may be impracticable in itself (see paragraph 2 above). Still, the Court ’ s case-law is full of examples in which the application of vague, contradictory or otherwise faulty legislative provisions did not result in a finding of a violation of applicants ’ rights under the Convention.

25 . This consideration brings me to the third possible answer to the question raised in paragraph 10 above.

For this Court to judge that there has been a violation of a provision of the Convention solely on the ground that the applicable national law is deficient (whatever the nature of that deficiency may be) amounts to an admission that the institution which actually committed that violation is none other than the legislator. (Isn ’ t this approach indirectly and tacitly revealed also by the fact that, in the operative part of the judgment, the word “violation” is used in the singular, without adding “in respect of each applicant” or something of this kind; compare and contrast Vinter and Others , cited above, point 1 of the operative part?) At the same time it could be asserted that the violation existed even before the legislation was applied to the potential victim. And if the potential victim is a person convicted of his or her crimes and sentenced to life imprisonment, this sentencing merely “activates”, or propels, the violation which formally (legally) was already in place.

26 . In the present case, however, the quality of the Hungarian law, unsatisfactory as it may be, was explicitly endorsed by the Court itself in its case-law, including in a recent and almost identical case against Hungary ( Törköly , cited above) .

Moreover, the new – but still deficient – legislation effective as of 1 January 2015 was passed following the Court ’ s judgment in László Magyar (cited above) . That judgment did not deal with the period on expiry of which a life prisoner could request a review of his or her sentence. It merely stated that an “ indeterminate number of years” would “fail to comply with the requirements of Article 3 in this regard” ( § 53). First of all, a forty-year period, however long, is not “indeterminate”. True, one could deduce from Bodein (cited above), although perhaps not so directly from Vinter and Others (cited above), that a forty-year period does not fit the definition of what the Government considered to be merely a “tendency” (see paragraph 14 above) and could be, to put it mildly, problematic from the perspective of the Convention. But while Törköly (cited above) was a valid precedent (and indeed is, until this judgment comes into force) – one which, moreover, sent a clear and direct message to the same respondent Government as in the present case, the Hungarian Government – this was not so evident.

27 . All law inevitably has its jurisprudential element. All law evolves through the courts ’ case-law. Courts do not only interpret fully transparent provisions of legal acts, but – much more often – provisions that are uncertain, vague, obscure, ambiguous or downright contradictory. The need for their interpretation is triggered by the fact that there are disputes over them. Courts also re-interpret their own case-law and thus develop it, and sometimes modify it. Thus, there is nothing extraordinary in the fact that this Court, too, re-interpreted its earlier case-law and modified it. After all, the concept of the Convention as a “living instrument” also suggests precisely such development.

The transition from Kafkaris (cited above) and the post- Kafkaris case ‑ law to Vinter (cited above), though, was quite swift and radical. Moreover, it was intertwined and (still) co-exists with the case-law based on the pre- Vinter approach. This needed to be taken into account by the Chamber when assessing the quality of the Hungarian law in question. I fail to see that this was done in the present case.

28 . The Court ’ s conclusion cited in paragraph 2 above contains a caveat: “at the present time”. The national law, albeit with some flaws, was for a long time satisfactory for the purposes of Article 3. It is not satisfactory, however, “at the present time”. And that “present time” standard was brought about by the recent developments in the Court ’ s case-law pertaining to life imprisonment. This is not to say that these developments are not welcome in any way. But, especially at this stage, they require the Court to look at the factual side of the applicant ’ s situation with no less attention than the legislative environment, so that the judgment rendered is not a mere act of formal(istic) justice but provides a fair deal to both litigating parties.

29 . As it is the quality of law which has served as the basis – as it appears, the only basis(!) – for finding a violation (or rather, violations) of Article 3 in the present case, the essential difference between this Court as a court of human rights and a constitutional court is made more hazy.

The continuation of such an approach would be a rather disturbing development, one in which the examination of alleged violations of human rights is expanded so that it includes not only factual infringements of the rights under the Convention, but also the supervision of norms. This development would be even more disturbing if the examination of alleged violations of human rights could be satisfied by that supervision alone , without looking into whether there have been factual infringements of the applicant ’ s rights under the Convention, that is to say, into whether an applicant has not only formally but actually suffered injustice. Judicial policy and judicial will aimed at achieving this shift on a case-by-case basis (not only and not necessarily in cases under Article 3), employing what could be described as “salami tactics”, would mean that we are moving too fast, too far – and possibly in the wrong direction.

However, discussion of these matters of potentially most serious concern would go far beyond the scope of the present case.