I am happy to present a guest comment by Dr Kanstantsin Dzehtsiarou of the University of Surrey on the recent judgment of Hutchinson v the United Kingdom:
The European
Court of Human Rights has recently delivered a judgment in the case of Hutchinson v the United Kingdom. The applicant in this case is serving a
life-long imprisonment sentence. It means that he will never be eligible for an
early release. Two years ago in the case of Vinter the Court ruled that such a
practice is incompatible with the Convention. This short comment examines
whether the new judgment develops or modifies the principles established in Vinter.
Vinter revolution
In July 2013 the
Grand Chamber of the European Court of Human Rights delivered a judgment in the
case of Vinter and others v the United Kingdom
in which it found that life imprisonment without a prospect of release violates
Article 3 of the Convention – prohibition of torture, inhuman and degrading
treatment and punishment. According to English law some convicted criminals can
be sentenced to life imprisonment without parole, and this was considered as a
violation of the Convention by the ECtHR. As judge Power-Forde stated in her
concurring opinion the prisoners should retain the right to hope. In Vinter, the ECtHR emphasised that the
right to hope builds on human dignity and fuels the indispensable purpose of
rehabilitation.
The Court found
a violation in this case because English law has not offered any real
opportunity to review life-long sentence without parole. This was held so, despite
the fact that in theory the Secretary of State had a power to release a
prisoner in exceptional circumstances. However, these exceptional circumstances
were narrowed down by the ‘Lifer
Manual’ to those prisoners who were terminally ill or physically incapacitated.
As was rightly pointed out by the Court such compassionate release cannot be even
considered as a release at all.
In Vinter, the Court did not demand an immediate
release of the applicants but only held that a legal system which does not
offer effective and clearly defined hope to release violates Article 3 of the
Convention.
Vinter is spreading
While the ECtHR
decision in Vinter did not
immediately help the applicants in that case it had significant implications on
the case law of the ECtHR itself. One of those implications is evident in the
case of Trabelsi v Belgium in which the Court found that extradition
of the applicant to the state where he could face life imprisonment without
parole would violate Article 3. The logic in this case is simple: if this type
of life imprisonment is a violation of Article 3, then the risk of such
treatment in the receiving state should halt the extradition.
Vinter has more
fundamental implications. In this judgment the Court emphasised its adherence
to the ideals of rehabilitation and reintegration of dangerous criminals. It is
hard to comprehend how life-long incarceration could support rehabilitation of
such prisoners – life-long sentences remove from both the prisoners and the
prison authorities any incentive to reintegrate the inmates into the society.
Effectively, a life-long imprisonment means the social death of the inmate. With
Vinter in mind, this approach has to
change. The Contracting Parties have an obligation to introduce programmes of
rehabilitation even for those who serve life imprisonment in order to make
release (although, remote) a possibility. A prisoner-centred penitentiary
system should leave an inmate a chance to reintegrate into the society.
Finally, Vinter is a logical step forward in
liberalisation of criminal punishment. Vinter
signalled the dissolution of the social contract according to which the death
penalty was replaced by a life-long sentence.
The Hutchinson counter-revolution
3 February 2015
the Chamber of the European Court of Human Rights delivered a judgment in Hutchinson v the United Kingdom. The
facts of this case are very similar to the ones in Vinter v the United Kingdom. The Chamber did not find a violation
of Article 3 of the Convention as the ECtHR was of the opinion that the English
Court of Appeal has now sufficiently clarified the law in relation to release
by the Secretary of State in exceptional circumstances.
The ruling of
the Court of Appeal was that despite the fact that the ‘Lifer Manual’ was not
amended, the Secretary of State is nevertheless bound directly by the decision
of the European Court of Human Rights in Vinter.
It effectively means that the manual is not good law any more. But which law is
good law then is still unclear. If the Secretary of State considered this part
of the Lifer Manual as invalid he would arguably have amended it by now. In Vinter the Court found a violation
because English law was not sufficiently clear; now English law is arguably
even less so. This ruling may prepare the ground for new litigation in England.
As it was rightly stated in the dissenting judgment by judge Kalaydjieva, this
judgment is pre-mature as it pre-empts effective changes in English law.
Undoubtedly, the
United Kingdom enjoys a broad margin of appreciation in regulating its penal
policy but this margin has its limits and the Court set clear limits in Vinter. One can therefore argue that the
Chamber of the ECtHR in Hutchinson
has effectively overruled the judgment of the Grand Chamber in Vinter. This has already been pointed
out by English
press. If this is the case, then the Court’s attitude to its own precedent
does not satisfy the conditions of the rule of law. The principles adopted in Vinter were upheld in Hutchinson but their application was
significantly curtailed.
It is highly
possible that this case might be referred to the Grand Chamber and then the
judgment of the Chamber might be revoked. According to the Convention the
parties to the case have 3 months to refer the case to the Grand Chamber. It is
up to a panel of 5 judges to accept this case for the Grand Chamber hearing or
not. It is likely that this case will be accepted. A similar scenario happened
in the Roma school children segregation cases. In DH v the Czech Republic the Grand
Chamber held that there was a violation of the anti-discrimination provisions
of the Convention. In the subsequent case of Orsus v Croatia the Chamber did not
find a violation in the situation significantly similar to DH. The Chamber judgment in Orsus was subsequently overruled by
the Grand Chamber. It is quite possible that the same will happen in relation
to Hutchinson v the United Kingdom.
In Hutchinson the Chamber has not explicitly
overruled the Grand Chamber judgment in Vinter
but the Court almost never does this explicitly. The concept of ‘bad law’ is not well developed
in the Court’s case law. According to this concept, the Court should explicitly
acknowledge overriding its previous judgment and explain its reasons for doing
that. The European Court of Human Rights often leaves this issue ‘up in the
air’ not clearly stating if the previous case-law is still valid. Having said
that, the doctrine of evolutive interpretation forces the Court to overturn its
previous rulings from time to time. The Convention itself does not make the
Court adhere to its own precedents which is nevertheless almost always done in
practice. It is possible that the Court decides that Hutchinson has only clarified Vinter.
This assumption however is highly contestable for the reasons mentioned above.
Game of Courts
Does this case
signal a trend in the Court’s case law? Are there going to be more highly
politicised judgments in favour of the United Kingdom prior to the 2015
elections? Is the European Court of Human Rights a strategic actor that can
sacrifice certain achievements in certain areas of human rights protection in
order to save the “Strasbourg project”? The Court’s judgments in the next few
months are crucial for answering these questions.
In England, the
level of hostility towards the European Court of Human Rights is indeed very
high and the behaviour of the United Kingdom towards the Court can determine
how influential the Court will be in the following decades. Having said all
that, one can wonder what price the Court should and is prepared to pay to have
the UK on board.
