“Deprivation of Liberty, Penal Policy and Proportionality in the Case-Law of the European Court of Human Rights”, lecture by Robert Spano, Judge of the European Court of Human Rights.
Bergen Lecture in Criminal Law and Criminal Justice is an annual lecture given at the Faculty of Law, University of Bergen by a distinguished international expert of criminal law and criminal justice.
This year the lecture will be given by
Robert Spano, Judge of the European Court of Human Rights. In his lecture, Judge Spano will address the subject “Deprivation of Liberty, Penal Policy and Proportionality in the Case-Law of the European Court of Human Rights”.
“In the landmark Grand Chamber judgment of the European Court of Human Rights in Vinter and Others v the United Kingdom (2013) the Court examined the system of “whole life prisoners” in the UK within the context of Article 3 of the European Convention on Human Rights. The GC held that there is no Article 3 breach just because a life sentence is imposed or, in fact, served in full, so long as a life sentence is de jure and de facto reducible. However an irreducible life sentence does amount to a breach of Article 3. The Court based its reasoning firstly on grounds of “human dignity” as it held that the imposition of a life sentence cannot be imposed without providing the offender with a “prospect of release”. The Court thus considered it axiomatic that a prisoner cannot be detained unless there are “legitimate penological grounds” for that detention. Secondly, the Court placed emphasis on European penal policy on rehabilitation, this element having now been further clarified in the recent Grand Chamber judgment in Murray v the Netherlands (2016). Thirdly, the Court considered that an irreducible life sentence creates a risk that the offender can “never atone for his offence”. Fourthly, emphasis was placed on the argument that the balance between the different justifications for detention, i.e. punishment, deterence, public protection and rehabilitation, “is not necessarily static and may shift in the course of a sentence”, and fifthly, that an irreducible life sentence is a “poor guarantee of just and proportionate punishment”.
In the Bergen lecture 2016, Judge Spano will critically examine these individual as well as interconnected components in the reasoning of ECtHR in Vinter and Others and attempt, if possible, to articulate their underlying doctrinal premises, also taking into account other elements in the Court’s case-law dealing with deprivations of liberty, both under Articles 3 and 5 of the Convention. It has long been argued that an assessment of what should be deemed to constitute just and proportionate punishment or inhuman or degrading punishment in a particular circumstance can legitimately produce different answers in different countries and even different answers at different times in the same country in the light of changing social, cultural and political factors. Also, it has been submitted that the formulation and implementation of penal policy is to be considered inherent in the concept of national sovereignty and thus fall within the exclusive domain of democratic debate and decision-making. These arguments are currently being heavily relied upon in the ongoing reformulation of European penal policy in the light of the threat of terrorism facing the continent. However, as can be derived from the case-law of the European Court of Human Rights these arguments are in tension with an individualistic and dignitarian conception of human rights rooted in the philosophical doctrines of liberalism that underpin international human rights norms, such as Article 3 of the Convention, which prohibits torture and other forms of inhuman or degrading punishments, as well as Article 5 of the same Convention prohibiting disproportionate and arbitrary deprivations of liberty, both of which have been examined in depth in the case-law of the ECtHR.”