Rights of prisoners (Article 3 ECHR): Perpetual sentences to the European prism of the dignity and social reintegration of prisoners By Nicolas Hervieu

To remove from the shadows a penalty of social exclusion to expose it in the light of the principle of social reintegration of prisoners. In short, this is how the work of the European Court of Human Rights can be summarized in its Vinter judgment. By a resounding condemnation of the United Kingdom, the Grand Chamber made a remarkable progression on perpetual sentences. While the right of States to impose such penalties and to maintain them for a lifetime has not been denied, an obligation to reconsider over time has been established so that “no one may be detained unless Legitimate reason of a penological nature does not justify it “. Such a European refusal of incompressible perpetual punishments is rich in many potentialities. Without imposing disproportionate State efforts and without threatening in itself the current French penal system, the Vinter judgment lays down important milestones for the European future of the law on the execution of sentences.

“We do not know enough to decree that such a great criminal … be deprived of his own future, that is to say, our common chance of reparation” (Albert Camus, Reflexions sur la guillotine, Paris , Calmann-Levy, 1957, pp. 166). At the dawn of the twenty-first century, this famous assertion for the purpose of justifying the abolition of the death penalty might seem obsolete, at least in Europe where such a penalty no longer exists (ADL of 3 March 2010; In the rest of the world: ADL of 16 April 2013). Yet it is nothing. For if “the abolition of the death penalty contains a bet on the future, that of a society capable of reintegrating its delinquents, of allowing them to return” (Yannick Lecuyer, “Perpetuity, human dignity and The European Court of Human Rights “, in RPDP, No. 3, 2010, 570), this issue of social reintegration is equally acute for another sanction: the perpetual sentence of imprisonment. In the past, the Court of Human Rights has already had occasion to learn about this issue. But each time, the European Court of Human Rights has not managed to fully exhaust this litigation, source of fractures among the Strasbourg judges.

After the Kafkaris v. Cyprus decided in 2008 by a divided Grand Chamber (ADL of 13 February 2008), the case of Vinter and Others v. United Kingdom again testifies to the sensitivity of the subject. In 2012, only a tiny majority of the House formation found that there was no violation of the Convention due to the perpetual sentences served by three British detainees (ECtHR, 4th Sect 17 January 2012, Vinter and Others v. Kingdom -Uni, Req. No. 66069/09 – ADL of 24 January 2012). The referral of this case to the Grand Chamber opened the way for a solemn European position. In this respect, the judgment of 9 July 2013 did not disappoint. Admittedly, the United Kingdom’s conviction of almost unanimity must not be extrapolated. A thousand miles away from the crowd of populist and opportunist comments that welcomed him across the English Channel, the European solution largely preserves state freedom: a perpetual punishment can still be imposed and then fully served without hurting the Convention itself. However, after a rich analysis of the purpose of a sentence and by mobilizing strong elements of comparative law, the Court enshrined a promising progression: the requirement of a re-examination of perpetual imprisonment over time.

No one will be surprised, the protagonists of European litigation had each been involved in criminal cases of particular gravity. Declared guilty of several murders, they were sentenced in 2009 (§ 19), 1986 (§ 20) and 1996 (§ 28) to “whole life order” (§ 12). The imposition of such a sentence is exceptional in the United Kingdom. In the majority of cases, the British court of apportionment imposes a perpetual sentence of “a minimum term of imprisonment” which the prisoner must serve before he can be released on parole (§ 12). This is similar to the mechanism of the “security period” provided for by French law (up to a maximum of twenty-two years – Article 132-23 of the Penal Code – even thirty years – Articles 221-3 and 221- 4 of the Criminal Code). But British law also provides for the possible imposition of a penalty of “actual perpetuity”. This means that the detainee will be able to benefit from an enlargement only by virtue of a ministerial discretionary decision “on humanitarian grounds if the detainee is suffering from a terminal illness or is seriously handicapped” (§ 12).

Prior to the coming into force of the Criminal Justice Act of 2003, the Minister also intervened at the time of sentencing. For if life imprisonment were decided by the criminal court, it was up to him to impose “a lifetime punitive period” (excluding in principle any conditional release) (§ 12). But since the 2003 law, this power – as well as that of fixing the possible period of security – has been placed in the hands of the trial court (see § 34-58). It was therefore under this regime that the first applicant was tried in 2009 (§ 19). Prisoners who had been sentenced to life under the previous regime had a transitional mechanism: they were able to apply to the High Court for reconsideration, for which the court had the power to set a minimum period of imprisonment or impose perpetuity (§ 13). In 2008, the two other applicants initiated such a procedure. But it was in vain, since the High Court confirmed the sentence of real perpetuity (§ 22-25 and § 29-32). Consequently, in the absence of having successfully challenged these decisions in the United Kingdom, the three convicts turned to Strasbourg.

In line with the reasoning of the Chamber, the Grand Chamber essentially focused its analysis on the prohibition of inhuman and degrading treatment and punishment (Article 3). Under this conventional prism, European room for maneuver was very limited. Of course, this leverage is usually one of the preferred channels for “justice” to cross the “prison gate” in order to protect the dignity of detainees (see, for example, ECtHR, 5th Sect 25 April 2013 Canali c France, Req No. 40119/09 – ADL of 29 April 2013). But “improving the penitentiary condition is one thing, interfering in the criminal policies of states, especially those who have just abolished the death penalty, is another” (Anne Gillet and Émilie Cuq, “La Life imprisonment and the European Court of Human Rights “, in Yannick Lécuyer (Dir.), Perpetual perpetuity – Reflections on life imprisonment, PU Rennes, 2012, pp. 119). Precisely approaching the penalty of perpetual imprisonment leads to the very core of the penal policy of the States parties. The task is all the more dangerous when it concerns British criminal law, at a time when tensions between Strasbourg and London are still being exacerbated (see ADL of 18 April 2013 and ADL of 1 November 2012 in point 2).

But in spite of this sensitive and even explosive context, the Grand Chamber achieved a remarkable result. Certainly, prudence required the European judges to reaffirm at length and ostensibly the ample freedom of each State in the field of perpetual punishment (1 °). But this prelude aspired to prepare the consecration of a new conventional requirement: the obligation to re-examine perpetual imprisonment (2 °). Synonymous with the prohibition of incompressible perpetual punishments, this procedural progression gives substance to a genuine “right to hope”, of which no prisoner – even the worst of criminals – can be deprived.

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