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‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Tuesday, 17 January 2017

Grand Chamber judgment in Hutchinson v. UK: Review of whole life sentences in the UK is compatible with the European Convention


In today’s Grand Chamber judgment in the case of Hutchinson v. the United Kingdom (application no. 57592/08) the European Court of Human Rights held, by 14 votes to 3, that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights.

The case concerned the complaint by a man serving a whole life sentence for the murder of three members of a family and the rape of another that his sentence amounted to inhuman and degrading treatment as he had no hope of release.

The Court reiterated that the European Convention did not prohibit the imposition of a life sentence on those convicted of especially serious crimes, such as murder. However, to be compatible with the Convention there had to be both a prospect of release for the prisoner and a possibility of review of their sentence.

The Court considered that the UK courts had dispelled the lack of clarity in the domestic law on the review of life sentences. The discrepancy identified in a previous ECtHR judgment between the law and the published official UK policy had notably been resolved by the UK Court of Appeal in a ruling affirming the statutory duty of the Secretary of State for Justice to exercise the power of release for life prisoners in such a way that it was compatible with the European Convention. In addition, the Court of Appeal had brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of the Secretary of State to release a whole life prisoner where continued detention could no longer be justified. 

The European Court highlighted the important role of the Human Rights Act, pointing out that any criticism of the domestic system on the review of whole life sentences was countered by the HRA as it required that the power of release be exercised and that the relevant legislation be interpreted and applied in a Convention-compliant way.

The Court therefore concluded that whole life sentences in the United Kingdom could now be regarded as compatible with Article 3 of the European Convention:
"70. The Court considers that the McLoughlin decision has dispelled the lack of clarity identified in Vinter arising out of the discrepancy within the domestic system between the applicable law and the published official policy. In addition, the Court of Appeal has brought clarification as regards the scope and grounds of the review by the Secretary of State, the manner in which it should be conducted, as well as the duty of the Secretary of State to release a whole life prisoner where continued detention can no longer be justified on legitimate penological grounds. In this way, the domestic system, based on statute (the 1997 Act and the Human Rights Act), case‑law (of the domestic courts and this Court) and published official policy (the Lifer Manual) no longer displays the contrast that the Court identified in Vinter (cited above, § 130). Further specification of the circumstances in which a whole life prisoner may seek release, with reference to the legitimate penological grounds for detention, may come through domestic practice. The statutory obligation on national courts to take into account the Article 3 case-law as it may develop in future provides an additional important safeguard.
71. As the Court has often stated, the primary responsibility for protecting the rights set out in the Convention lies with the domestic authorities (see for example O.H. v. Germany, no. 4646/08, § 118, 24 November 2011). It considers that the Court of Appeal drew the necessary conclusions from the Vinter judgment and, by clarifying domestic law, addressed the cause of the Convention violation (see also Kronfeldner v. Germany, no. 21906/09, § 59, 19 January 2012).
72. The Court concludes that the whole life sentence can now be regarded as reducible, in keeping with Article 3 of the Convention.
73. As indicated at the outset (see paragraph 37 above), given that the parties’ submissions were confined to the current state of the domestic law, the Court has not found it necessary to examine separately whether the requirements of Article 3 in relation to whole life sentences, as laid down in the Vinter judgment, were complied with in the applicant’s case prior to the McLoughlin decision. It would nevertheless observe, as the Government themselves in effect recognised before the Court of Appeal delivered its judgment in McLoughlin, that at that time the material circumstances regarding the applicant’s whole life sentence were indistinguishable from those of the applicants in the Vinter case (see paragraph 23 above)."

The "seismic consequences" of the present judgment for Europe


From Judge Pinto de Albuquerque's dissent:
"35. The Court of Appeal stated that it was right in Bieber and that the Court was wrong in Vinter and Others. Now, the Grand Chamber is backtracking from Vinter and Others and admitting that the Court of Appeal was right and English law already had, since at least Bieber, a Convention‑compatible parole mechanism for lifers. This is not an isolated event. In Al-Khawaja and Tahery, the Grand Chamber accepted the principle set out in the Supreme Court’s Horncastle judgment, and in Horncastle v. the United Kingdom, the Chamber found no violation of Article 6 despite the use of hearsay evidence leading to the conviction. After the Al-Khawaja and Tahery retreat on the issue of conviction based solely or to a decisive extent on hearsay evidence, the RMT regression in the role of other international sources of law in the interpretation of the Convention labour rights, the Animal Defenders reversal on the issue of prohibition of political advertisement, and still suffering from the ongoing Hirst saga on the voting rights of prisoners, the Court is faced with an existential crisis. The pre-catastrophic scenario is now aggravated by the unfortunate spill‑over effect of Hirst on the Russian courts.
36. No great effort is needed to identify the source of the crisis. It lies in the attractive force of the Horncastle “rare occasions” argument. The problem is that “rare occasions” tend to proliferate and become an example for others to follow suit. Domestic authorities in all member States will be tempted to pick and choose their own “rare occasions” when they are not pleased with a certain judgment or decision of the Court in order to evade their international obligation to implement it, especially when the issue is about the protection of minorities, such as prisoners, LGBT people, asylum seekers, migrants, aliens, Roma and other non-State peoples living in Contracting Parties, such as, for example, the Kurdish people, to mention but a few. There is always a minority that the majority is prone to treat as a scapegoat for all the ills in society, by imposing on them objectionable restrictions and limitations on the exercise of Convention rights and freedoms.
37. The risk of self-interested manipulation becomes intolerably high when domestic authorities pretend that they are only bound by a “clear and constant” line of Strasburg case-law, denying the res interpretata effect to “incongruous”, “stray”, “overly broad” Chamber judgments or even Grand Chamber judgments. The domestic authorities’ test for acceptance of the Court’s judgments guidance then becomes even more discretionary, based on an admittedly very fluid distinction between clear/unclear, constant/not constant case-law, allowing for the rejection of the binding and interpretative force of any Court judgment on new or polemic issues. As if the Convention system did not have its own internal mechanisms for guaranteeing consistency and coherence, including, inter alia, referral to the Grand Chamber and the office of the Jurisconsult. As if any attempt by the Court to enter unchartered waters or to change course had to be accorded an ex post fiat by domestic authorities. As if, ultimately, the domestic authorities were entrusted with the power of Article 19 of the Convention, and not the Court.
38. In this context, the present judgment may have seismic consequences for the European human-rights protection system. The majority’s decision represents a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards. If the Court goes down this road, it will end up as a non-judicial commission of highly qualified and politically legitimised 47 experts, which does not deliver binding judgments, at least with regard to certain Contracting Parties, but pronounces mere recommendations on “what it would be desirable” for domestic authorities to do, acting in an mere auxiliary capacity, in order to “aid” them in fulfilling their statutory and international obligations. The probability of deleterious consequences for the entire European system of human-rights protection is heightened by the current political environment, which shows an increasing hostility to the Court." 
Comments:

"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."

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