As the first post of the new year on the ECHR Blog, it is my pleasure to introduce a guest post by Kanstantsin Dzehtsiarou of the University of Liverpool on this week's Grand Chamber judgment on life sentences without parole in the case of Hutchinson v. the United Kingdom.
Is there
hope for the right to hope?
Kanstantsin
Dzehtsiarou, University of Liverpool
A disappointing Chamber judgment in Hutchinson v the UK led on 17 January 2017 to an equally
disappointing Grand
Chamber judgment in the same case. This case was a follow-up from the
Court’s judgment in Vinter v the UK in which the Court
ruled that life sentences without parole which cannot be reviewed are
incompatible with the Convention as they violate Article 3 ECHR – the prohibition
of torture and inhuman and degrading treatment and punishment. The Court has
poetically in this context come up with the term “a right to hope”, meaning
that a life prisoner should have hope to be released however remote this hope
might be. This blog post does not take a stand on the issue of whether the
judgment in Vinter was a correct
interpretation of the Convention. Rather I will argue here that Vinter’s overturn in Hutchinson lacks consistency and that it
is based on a very thin legal foundation.
I have already considered the facts
of Hutchinson case and its connection
with Vinter in my previous blog post
on this issue and therefore I will below only consider the reasoning of the
Grand Chamber of the Court.
Magic powers
of the Court: it can see something where there is nothing
In Hutchinson, the Court has
overruled its previous judgment. Usually, this is done by means of evolutive
interpretation. Arguably, in this case we have an instance of interpretation of
evolution which lowers rather than heightens human rights protection. Although
this is not unprecedented in the Court’s history, one can argue that the Court
needs serious reasons to depart from its own case-law not only in cases of ‘progressive’
evolution but especially in opposite cases. On more than one occasion the Court
itself has pointed out that evolutive interpretation should be justified by
particularly strong reasons. In the current climate when there is a growing
political appetite to curtail human rights, a Court interpretation towards
change in this direction without good reasons may create a dangerous precedent
for further reduction of basic human rights guarantees.
It is argued here that the Court simply
had no reason to depart from Vinter.
The Court focused on the McLoughlin
decision of the Court of Appeal of England and Wales which in the view of the
majority had clarified the applicable law and for that reason, unlike in Vinter, the Court could no longer find a
violation of Article 3 ECHR. I dare to suggest that the McLoughlin judgment merely reiterated what was known at the time
when the judgment in Vinter was
deliberated and therefore McLoughlin did
not provide a clear reason to depart from it.
This is so, for a number of reasons.
First, it was known at the time of the Vinter
judgment that the Secretary of State can revise a life sentence without parole in
a very narrow set of circumstances provided by the Lifer Manual. Despite the
findings of the Grand Chamber in Vinter,
the Secretary of State can still revise the life sentence accoridng to the same
Lifer Manual which is still in force.
Secondly, the Court of Appeal
suggested in McLoughlin that “The Manual cannot restrict the duty of
the Secretary of State to consider all circumstances relevant to release on
compassionate grounds. He cannot fetter his discretion by taking into account
only the matters set out in the Lifer Manual.”
This was also known at the time of Vinter.
Back then, the European Court had explicitly considered the earlier
judgment of the Court of Appeal in R v.
Bieber in which Lord Phillips ruled that “At present it is the practice of
the Secretary of State to use this power sparingly [power to release], in
circumstances where, for instance, a prisoner is suffering from a terminal
illness or is bedridden or similarly incapacitated. If, however, the position
is reached where the continued imprisonment of a prisoner is held to amount to
inhuman or degrading treatment, we can see no reason why, having particular
regard to the requirement to comply with the Convention, the Secretary of State
should not use his statutory power to release the prisoner.” It is quite clear
that Lord Phillips suggested that the Secretary of State can go beyond what is
provided for in the Lifer Manual under certain circumstances which were quite
ambiguous at the time of Vinter and that
they have not been clarified ever after. Moreover, it seems that neither at the
time of Vinter nor at the time of Hutchinson were these suggested broad
powers used by the Secretary of State in practice.
Thirdly, the Court referred to the
Human Rights Act of 1998, saying that the Secretary of State should take into
account the case law of the European Court in making his or her decision about
a possible release of the prisoner. The Human Rights Act came into force in the
year 2000. The Court delivered its judgment in Vinter in 2013 and it was known by the Court at that time that Strasbourg
jurisprudence should be taken into account by the Secretary of State. This
knowledge did not prevent the Court from finding a violation then. The
limitations of the Human Rights Act argument were also highlighted by the
dissenting judge Pinto de Albuquerque.
Finally, the Court was concerned in Vinter with the lack of clarity in
relation to the timeframe of review of the sentence, in other words there was
no minimal term after which this review should have taken place. In Hutchinson, the European Court stated
that it is not a problem any longer because the prisoner can apply to the
Secretary of State at any point during his or her sentence. Curiously, at the
time of Vinter I would suggest the
rule was exactly the same.
The conclusion is that the Court has changed
its stance without having a concincing explicit reason to do so. It seems that
the Court implicitly acknowledged that its judgment in Vinter was an incorrect reading of the Convention and Hutchinson has clarified this. The Court
did not state that but the very thin foundation of the reasoning in Hutchinson suggests so.
What comes after Hutchinson?
Arguably, the right to hope still
stands as this key standard has not been (at least explicitly) overruled by the
Court. It just changed how it defines the term– even a glimmer of hope is now
sufficient. Vinter had a significant influence
on the case-law of the ECtHR. Just to name a few examples: the Court prevented
extradition of the applicant to the country in which he could be sentenced to
life imprisonment without parole in Trabelsi v Belgium, the
Court used the fact that life prisoners can have a hope for release to justify
the need for rehabilitation of such prisoners and as a result found a violation
of the Convention in Khoroshenko v Russia for not providing family visits during
first ten years of life imprisonment. After Hutchinson, the clarity of the standards of Vinter is no longer applicable law.
Now, I can see two possible
consequences of the Grand Chamber judgment in Hutchinson. First, it will be a sui
generis standard for the United Kingdom while all other states will be
under a more stringent standard developed in Vinter. This outcome has an obvious disadvantage of creating double
standards in human rights protection. The second possibility is that Hutchinson will justify a broader margin
of appreciation for the Contracting Parties in this area and as a result it
will cause loosening of the standards that were developed in the recent case-law
of the Court.
As it is often said – every cloud has
a silver lining. It is possible for the Court to review its judgment in Hutchinson. If the Secretary of State
continues to use her powers very restrictively, and there will be no effective
way to facilitate the right to hope in practice, the Court can come back to
this issue. It has done that in the past. For example, in Sheffield and Horsham, the Court warned the UK that if it does
not improve transgender rights protection it will find a violation of the
Convention in the future. While not condemning the UK for a violation in Sheffield and Horsham, only four years later the Court found a
violation in the very similar case of Christine Goodwin v the UK.
Although the situation in Hutchinson and
in Sheffield and Horsham are
obviously different the Court might be asked to reconsider this situation when
an appropriate application is submitted.