D ISSENTING OPINION OF JUDGE KALAYDJIEVA

I voted against the conclusion of the majority that the applicant ’ s complaints are admissible in so far as they concern the compatibility of whole life sentences as such with Article 3 of the Convention. To the extent that these complaints concern the availability of de jure and de facto possibilities for release, their admissibility might be questionable in so far as it is unclear whether the applicant ever availed himself of the opportunity to apply to the Secretary of State for Justice in order to test the manner in which the latter would exercise his power to assess whether any exceptional circumstances justified the applicant ’ s release. The applicant was entitled to do so at any time after 16 May 2008, when Tugendhat J found it “right that the applicant should remain in prison for the rest of his life by way of punishment” and ordered “that the early release provisions are not to apply to [him]”.

It should be noted that Mr Hutchinson ’ s application (no. 57592/08) was registered (one and two years respectively) earlier than those in the cases of Vinter and Others (nos. 66069/09, 130/10 and 3896/10) which were examined by the Grand Chamber of this Court in 2013. To the extent that the majority in the present case considered the applicant ’ s complaints admissible and identical to the ones in Vinter , I find no reasons to disagree with the observation of the respondent Government of 14 January 2014 that “the principles of the judgment of the Grand Chamber in this case appear on their face to apply to this case” as well.

The reasoning of the majority in the present case is based on the premise that the Grand Chamber erred in its understanding of the domestic law as expressed in the case of Vinter and Others in 2013, and also on the fact that, since “it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation” (see paragraph 24 of the judgment), they were prepared to accept that the correct interpretation of the domestic law was provided in the post- Vinter judgment delivered by the special composition of the Court of Appeal on 18 February 2014 in the case of R v. Newell; R v. McLoughlin [2014] EWCA Crim 188. In that judgment, the Court of Appeal disagreed with the Grand Chamber ’ s views on the clarity and certainty of the domestic law as first set out in R v. Bieber [2009], and reaffirmed that this interpretation was sufficiently clear and certain. Assuming that this is so, I fail to see the bearing of this progressive development of the law on the applicant ’ s situation a year earlier, in 2008, when his complaints were submitted to the Court, or at the time of their examination by the Court in 2015.

Unlike in the unanimous judgment of the same Section in the case of Harakchiev and Tolumov v. Bulgaria (nos. 15018/11 and 61199/12 , ECHR 2014) , the majority in the present case failed to express any view as to whether, how and at what point the interpretation of the domestic law established in Bieber [2009] and R v. Newell; R v. McLoughlin [2014] changed, ceased to apply or made the applicant ’ s situation more compatible with the principles laid down by the Grand Chamber in examining the situation of the applicants in Vinter .

The issue in the case of Mr Hutchinson is not whether the Court ( see paragraph 25) “must accept the national court ’ s interpretation of the domestic law” as clarified in the process of “progressive development of the law through [the] judicial interpretation” (paragraph 24) provided by the Court of Appeal after Vinter as being the correct one, but whether or not in 2008 the applicant was in fact “entitled to know, at 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” as required by the principles established in Vinter (§ 122). These principles were not in themselves contested either by the 2014 judgment of the Court of Appeal or by the representative of the respondent Government in the present case.

I do not deem myself competent to determine whether the Court of Appeal expressed an ex tunc trust or an ex nunc hope that, even though to date the Secretary of State for Justice has not amended the content of the Lifers Manual after Vinter , he was, is and always will be “bound to exercise his power ... in a manner compatible with Article 3” (see paragraph 23). I have no doubt that the Grand Chamber was informed as to the scope of his discretion and the manner of its exercise in reaching their conclusions in Vinter . In this regard, and in so far as the Court of Appeal ’ s part in the admirable post- Vinter judicial dialogue said “Repent!”, I wonder whom it meant?