CONCURRING OPINION OF JUDGE GARLICKI

I agree with the finding of no violation. I agree that, in view of the pardoning powers of the State Governors, the Kafkaris test has been satisfied in both cases (see paragraphs 140 and 142).

At the same time, however, I am not ready to support those parts of the reasoning that, by reproducing the position adopted by the majority in Vinter and Others v. the United Kingdom (nos. 66069/09 and 130/10 and 3896/10), may suggest that, in some circumstances, an irreducible life imprisonment may not be incompatible with Article 3 of the Convention (see the joint partly dissenting opinion of Judges Garlicki, David Thór Björgvinsson and Nicolaou in Vinter and Others ).

CONCURRING OPINION OF JUDGE KALAYDJIEVA

I have voted with the majority and I adhere to the final conclusions of my esteemed colleagues that the applicants’ extradition would not expose them to a real risk of treatment contrary to Article 3 in view of the prospect of their facing life sentences. The Court has already had occasion to express the view that such punishment is not per se incompatible with the prohibition of inhuman and degrading treatment or punishment.

I agree with the conclusion that an Article 3 issue will arise when it can be shown that a “continued incarceration no longer serves any legitimate penological purpose ” (§140). Indeed, a reasonable assessment of this factor may only be carried out after a substantial period of imprisonment has elapsed and on the basis of the overall correctional and punitive effect of the sustained regime and conditions of imprisonment, which in certain circumstances may have a debasing effect on an individual.

However, in cases of extradition to a non-member State of the Council of Europe, a post factum assessment will clearly come too late to prevent potential treatment in violation of Article 3. In this regard there is little to distinguish the means used for establishing the risk of exposure to treatment contrary to Article 3 in the present cases, including matters relating to the burden of proof, from cases of removal to countries outside the Council of Europe for other purposes – such as expulsion in furtherance of domestic immigration policy. In addition to the information provided by the parties, the Court could have availed itself of the abundant independent sources of information on the objective risks attached to the prison regime and its accompanying conditions and the extent to which a punishment consisting of life imprisonment without eligibility to parole is designed and enforced so as to serve a legitimate penological purpose.

I have serious doubts as to whether the assessment of the risk of “gross disproportionality” (§ 139) between the acts allegedly committed and the sentence which may be imposed on the applicants falls to be considered by this Court. I am not convinced that such consideration would assist the development of its views on the important issue of the compatibility of life imprisonment with Article 3. A closer look at the views of different other jurisdictions on this matter (see §§ 62 – 81) may raise questions as to whether their conclusions on this point might have been different at least as concerns the first applicant, who was under 20 years of age at the time of committing the offence and feared the imposition of a mandatory life sentence regardless of whether or not he had had the intention to kill. It seems to me that instead of the long-needed clarification of the Court’s case-law on the compatibility of irreducible life imprisonment with the requirements of Article 3 of the Convention, the application of the “gross disproportionality” criterion may lead to confusion as regards the appropriateness of States’ criminal policy.