CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 11 avril 2006

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display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sC202EACC { clear:both; mso-break-type:section-break }     SECOND SECTION     CASE OF LÉGER v. FRANCE     (Application no. 19324/02)     JUDGMENT       STRASBOURG   11 April 2006     THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 30/03/2009   This judgment may be subject to editorial revision. In the case of Léger v. France, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   A.B. Baka , President ,   Mr   J.-P. Costa ,   Mr   R. Türmen ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni,   Mrs   E. Fura-Sandström, judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 21 March 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19324/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Lucien Léger (“the applicant”), on 6   May 2002. 2.     The applicant, who had been granted legal aid, was represented by Mr   J.-J. de Felice, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs. 3.     The applicant alleged, in particular, that his continued detention as a result of his life sentence – which in practice amounted to a whole-life term   – was arbitrary, in breach of Article 5 § 1 (a) of the Convention, and constituted inhuman and degrading treatment within the meaning of Article   3. 4.     The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. 5.     In a decision of 21 September 2004 the Chamber declared the application partly admissible. 6.     A hearing took place in public in the Human Rights Building, Strasbourg, on 26 April 2005 (Rule 59 § 3).   There appeared before the Court:     (a)     for the Government Mr   J.-L. F lorent , Deputy Director of Legal Affairs, Ministry of Foreign Affairs,   Agent , Mr   G. Dutertre , magistrat , on secondment to the Human Rights Section, Legal Affairs Department, Ministry of Foreign Affairs, Counsel ; Mr   F. Amegadjie , rédacteur , European and International Affairs Department, Ministry of Justice, Mr   M. Barate , Head of the Security Section, Prison Service, Ministry of Justice, Mr   R. Dubant , Head of the Sentence Enforcement and Pardons Office, Criminal Affairs and Pardons Department, Ministry of Justice,   Advisers ; (b)     for the applicant Mr   J.-J. de Felice ,   Counsel .   The Court heard addresses by Mr de Felice and Mr Florent, and their replies to questions put to them by its members. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1937 and lives in Landas. A.     The applicant’s conviction in 1966 8.     In July 1964 the applicant was prosecuted for the abduction and murder of Luc Taron, an 11-year-old boy, on 26 and 27 May 1964. 9.     On 5 July 1964, while in police custody, the applicant signed a confession which he stood by for the first ten months of the investigation. Later that day he was placed in pre-trial detention. The investigating judge questioned him on several occasions about the reasons for his conduct, which was inconsistent with his confession, but the applicant refused to offer an explanation. 10.     On 21 December 1964 a panel of experts in neuropsychiatry submitted a report. The experts submitted that the applicant had not been suffering from mental illness at the time of the events and contended that the physiological and psychological abnormalities observed, coupled with the applicant’s alleged memory loss at the time of the killing, “[made] it impossible to rule out the presence of an epileptic symptom with a twilight state and dimming of consciousness”. They concluded that the applicant was “dangerous” and “liable to a criminal penalty” and that “the organic disorders observed would be amenable to palliative treatment alone and dictate[d] that his social rehabilitation [could] be envisaged only with the utmost caution”. 11.     A second report was submitted on 30 April 1965. It concluded that the applicant was “not mentally ill and should not be admitted to a psychiatric hospital. He is fit to stand trial. He must answer for his actions in court. He is a danger to public safety.” 12.     On 11 June 1965 the applicant retracted his confession but refused to expand on his muddled and limited explanations. He has protested his innocence ever since. 13.     In a judgment of 7 May 1966 the Seine-et-Oise Assize Court found the applicant guilty of abduction and subsequent murder, with mitigating circumstances. The Assize Court held that the offence should not be classified as premeditated murder ( assassinat ). Although the prosecution had not sought a specific penalty, the applicant was sentenced to life imprisonment, but no minimum term was set (see paragraph 34 below). After the verdict had been read out by the President of the Assize Court, the applicant protested that there had been a miscarriage of justice and gave the name of a person who, according to him, was guilty. An appeal on points of law by the civil party was dismissed on 29 November 1966. 14.     The applicant’s wife died in unexplained circumstances in January 1970, after she had written to tell him that she knew he was innocent and that she had received death threats from one of the two real culprits. 15.     On 17 June 1971 the applicant, through his lawyer, who had nevertheless entered a guilty plea on his behalf, lodged an initial application for a retrial, which was apparently not examined. 16.     On 6 September 1974 the applicant’s lawyer lodged a second application for a retrial with the Minister of Justice. The application gave rise to an investigation, the findings of which were due to be disclosed to the lawyer. However, the lawyer died before the report was submitted and the findings of the investigation were never forwarded to the applicant. Several months later, the applicant was notified orally that the application had been dismissed. B.     Applications for release from 1979 to 2000 17.     On 5 July 1979, on the expiry of a “probationary period” of 15 years (see paragraph 39 below), the applicant became eligible for release. 18.     The applicant applied for release on licence on several occasions. In 1984 he received the support of the President of the Ligue des droits de l’Homme (Human Rights League). The civil party subsequently issued death threats against the applicant in the event of his release from prison. 19.     His applications for release on licence were transmitted in 1985, 1988, 1990, 1991, 1992, 1993, 1994, 1995 and 1997 to the Minister of Justice, who at the time was empowered to deal with such matters, and were refused, in many cases for his own safety despite “evidence supporting them”, as Mr Toubon, the Minister of Justice from 1995 to 1997, explained in a press article published on 8 June 2000. 20.     The applicant also made several applications for a presidential pardon. Some of them did not receive a reply. The last one, submitted in 1998, was refused after an expert medical assessment had concluded that the applicant’s state of health was compatible with detention. 21.     On 18 March 1999 a lawyer belonging to the Lille Bar applied for the applicant’s release on licence. The sentence enforcement board gave a positive opinion, but consideration of the application was adjourned pending the submission of a fresh expert report. 22.     On 4 October 1999 the experts submitted their report, which read: “... Previous expert reports Among the documents consulted, we have considered in particular the expert reports by the following psychiatrists: Dr Behague, Dr Cenac and Dr Dublineau, of 21 December 1964; Dr Petit-Dutaillis, Dr Heuyer and Dr Roumajon, of 5 April 1965; Dr Follin and Dr Roumajon, of 13 December 1984; Dr Bornstein, of 24 November 1989; Dr Cayet, of 13 May 1997 ... Observations We have studied the committal order by the Indictment Division and a number of expert reports. In their report dated 13 December 1984 Dr Roumajon and Dr Follin observed in Lucien Léger a mental distortion of reality bordering on the process of paranoia. They noted his pride, his taste for publicity and his need for a sense of self-worth. They referred to the substantial administrative file on Lucien Léger, whose time in custodial establishments had been highly eventful. The two experts emphasised that Lucien Léger was very keen to publish his version of events. This, they concluded, was likely to cause a quite considerable scandal. His release risked causing a significant disturbance to public order, and they believed that it could give rise to fears of a publicity stunt. Dr Boissenin, who had been unable to examine Lucien Léger as the latter had refused, expressed the view in his report of 18 May 1985 based on the file that the prospect of release was risky. On 13 May 1997 Dr Denis Cayet noted in his report that Lucien Léger’s intellectual faculties had remained intact. He observed that, despite a fairly warm appearance, there were still paranoid character traits centred on distrust, a suspicious and quibbling temperament, a general impression of persecution, difficulty in being self-critical, an underlying inflexibility and an inflated opinion of himself, accompanied by a latent sense of manipulation and provocation. Dr Denis Cayet concluded from this that Lucien Léger had scarcely changed since the assessment by Dr Follin and Dr   Roumajon, finding him to be just as combative, prone to look for hidden meaning, and seemingly determined to assert in future, by any possible means, what he considered to be his justification and the expression of the truth. In Dr Cayet’s opinion, the question of release was very difficult to assess, in view of the disturbance to public order and the media attention that were likely to ensue. During our examinations, Lucien Léger developed good relations with us. The general impression that emerged seems more balanced than that observed by the previous experts. One expression struck us in particular: ‘ I have continued to develop a structure while in prison .’ That does indeed seem to be the case, but it is impossible to assess whether, as things stand, Lucien Léger would be able to maintain this relative stabilisation on being released, if such a decision were taken. Lucien Léger appeared to us to be well informed about the current situation. He demonstrated great skill in pleading his own case, without, moreover, displaying excessive passion or exerting pressure on his interlocutors, so much so that questions may be raised as to the intensity of his current desire to be released. In any event, after thirty-five years of imprisonment, such ambivalence is not surprising. The idea of coming out of a system that is organised, restrictive and frustrating yet reassuring by its very monotony, with particular features such as a certain degree of respect on the part of most of the supervising staff, will undoubtedly cause him to wonder, quite naturally, about life as a free man, a life to which he is no longer accustomed: management of time and space, access to treatment, professional responsibility, social skills ... The version of events he submitted to the three experts is consistent with what he has written and with the version he gave to the previous succession of experts. It is not for us to pass judgment on its credibility. Is it a mythomaniac fabrication? What portion of truth is there in his current version of events? Is it quite simply a defence mechanism? Is it basically a defensive structure verging on the delusional? All these aspects, indeed, may well be interlinked. In any event, a certain progression can be seen from these various documents. In simplified form, it may be broken down into three phases: At first, Lucien Léger appeared to have a highly disordered personality, being prone to mythomaniac fabrication and a somewhat naive boastfulness. Next came the phase of multiple complaints and a defensive organisation bordering on paranoia. Currently there seems to be evidence of a relative softening of his character armour, although it is impossible to judge the impact of ‘ protection afforded by prison ’ and his reaction on experiencing the ‘ void of release ’. Our overall impression is therefore more qualified. To sum up, [the applicant] was imprisoned at the age of 27. At the time he appeared to have a disordered personality ... Thirty-five years later, most of his life has been spent in prison. ... Admittedly, a few paranoid personality traits may still be observed, but they are relatively well suppressed. Such traits essentially seem to be a form of character defence against accusations, a psychological survival response in order to ... ‘avoid losing a grip on reality’. He does not show any signs of systematic misjudgment, general over-simplification, deep suspicion, or a sense of current persecution ... at least, as soon as discussion moves away from the case in question. ... As further evidence against the presence of genuine paranoia, it is noticeable that he has maintained a certain sense of humour, a responsiveness to his surroundings and a degree of nuance.” The report concluded: “This assessment therefore focuses entirely on aspects of his personality from a strictly psychiatric and forensic standpoint. And from that standpoint, there do not currently seem to be any formal obstacles to his release.” The report also stated that the previous experts had already found that there did not appear to be a risk of a further offence involving a child and that only the risk of a surge of paranoia and protest had held them back. “That eventuality cannot be totally ruled out, although a number of clinical factors suggest that there has been a relaxation of his reactive faculties. In the event of his release on licence, which is not precluded by the findings of the clinical examination, it is ultimately the continuity, consistency and solidity of the reference points with which he is provided that should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him, at least initially, to receive support through psychological counselling.” The experts reported that the applicant was envisaging receiving such counselling “to reassure everyone and myself, and in case I get depressed”. 23.     On 7 February 2000 the judge responsible for the execution of sentences gave the following opinion: “Mr Léger is supported by the Bernhard family, who have regularly come to see him in the visiting room for about twenty years. Mr and Mrs Bernhard have offered to provide [the applicant] with accommodation. They have already welcomed other people in difficulty into their family. In addition, Mr Bernhard runs a company called ‘Le pain de nos ancêtres’. He will employ the prisoner to carry out administrative duties. [The applicant] will not be able to submit any other plans in view of his age (63) and his isolated family situation (as a widower with no children). The assessment recently conducted by a panel of psychiatric experts concludes that his personality has mellowed and that he has maintained his intellectual faculties and his grasp of reality. There does not appear to be any risk of his committing a further criminal offence involving a child. The findings of the clinical examination do not stand in the way of his release on licence. The solidity of the reference points with which he has been provided should prevent a reaction of psychological destabilisation after such a lengthy period of incarceration. It would be helpful for him initially to receive support through psychological counselling, according to the experts. I am forwarding the file on [the applicant] because I consider that after almost 35 years in prison it is appropriate to review of his situation and thus assess the purpose of his sentence. Releasing him on licence would enable him to undergo compulsory medical and psychological treatment and to regain his liberty within a clearly defined framework, unlike an individual pardon.” Following the reform of the post-sentencing system, including the procedure for granting release on licence to long-term prisoners, pursuant to the Law of 15 June 2000, the Minister of Justice refused the application for the applicant’s release and referred his case to the newly established courts. C.     The applicant’s subsequent applications and his release on licence in 2005 24.     On 16 January 2001 the applicant availed himself of this new judicial procedure. In his application he again stated that friends of his would provide him with accommodation in an outbuilding at their home and with employment in their bakery on his release. 25.     On 5 February 2001 the sentence enforcement board issued a unanimous opinion in favour of his release on licence. The applicant’s resettlement and probation officer also expressed an opinion strongly in favour of the application. 26.     At the hearing in the Douai Regional Parole Court the advocate-general submitted that the applicant’s application should be refused in view of his “lack of reform” in relation to the acts that had led to his conviction. 27.     In a decision of 6 July 2001 the Regional Parole Court, observing that the applicant denied having committed the offence of which he had been convicted, refused his application on the following grounds: “The extremely serious offence which [the applicant] denies having committed was punished by a sentence of life imprisonment. The psychiatric experts who examined [the applicant] (in 1965, 1984, 1989 and most recently 1999) could not rule out his potential dangerousness and the risk of his reoffending, the only means of averting such risks being through psychotherapeutic counselling or support, which by its very nature requires acceptance by the subject . [The applicant’s] position in relation to the offence committed and to the assessment which psychiatrists may make of a person’s mental state rules out any counselling of that kind and precludes a finding that he is making ‘serious efforts to readjust to society’ ... in spite of a coherent resettlement plan in terms of accommodation and employment.” 28.     Contending that that decision had required a confession as a new condition for release, the applicant appealed to the National Parole Court. His lawyer observed that the applicant was assured of work and accommodation on his release and that the most recent psychiatric report submitted by a panel of experts on 4 October 1999 had concluded that nothing stood in the way of his release on licence as there no longer appeared to be any risk of his reoffending. Relying on Article 3 of the Convention, the applicant’s lawyer argued that making his client’s release conditional on a confession was tantamount to a slow death sentence. 29.     On 12 November 2001 the applicant’s friends attested that their offer of accommodation and employment, which they had repeatedly made over a period of seventeen years, was still valid although their bakery was currently being sold to a private company founded by their children (a separate business registered at their home address). 30.     In a judgment of 23 November 2001 the National Parole Court upheld the decision of 6 July 2001 in the following terms: “... the offers of employment and accommodation referred to by the offender in support of his application as evidence of a social resettlement plan are closely interlinked and are currently in doubt as a result of the bankruptcy order against the person who made the offers. Furthermore, the paranoid tendencies still noted by the most recent expert would require psychological counselling, which the prisoner does not envisage undergoing.” 31.     Following a proposal to commute the applicant’s sentence, a fresh psychiatric report on him was completed in May 2004. It concluded: “... In our view there has been no particularly perceptible change in the offender’s mental state since the psychiatric assessments carried out in 1999. The character and personality traits observed do not make it possible to conclude with absolute certainty that he will not pose a significant danger in the community, in the psychiatric sense of the term. The forecast cannot be anything but reserved ... as to his ability to readjust. Prospects of change are barely perceptible, seeing that he is increasingly occupied with disparaging the experts’ methods rather than providing evidence to address the question of his plans for the future.” 32.     On 25 January 2005 the applicant lodged a further application for release on licence with the Arras Post-sentencing Court ( tribunal de l’application des peines ). The prison authorities recommended applying a probationary semi-custodial regime. The public prosecutor was opposed to the applicant’s release on licence, contending that such a measure would entail a dual risk for society, that of reoffending and that of psychological decompensation. 33.     In a judgment of 1 July 2005, which was upheld on 31 August 2005 by the Post-sentencing Division of the Douai Court of Appeal, the applicant was released on licence with effect from 3 October 2005 until 2 October 2015, on which date the monitoring and supervision arrangements would expire. In addition to the standard requirements which the applicant was to observe (place of residence, contact with the judge responsible for execution of sentences and Prison Service social workers, permission for travel), particular obligations were imposed on him: to submit to medical examinations, treatment or care, including in a hospital environment, and to refrain from contacting the victim’s mother, from distributing any publication or audiovisual work produced or co-produced by himself relating, in whole or in part, to the offence committed, and from making any public comment on the offence. The courts held that the applicant now satisfied the conditions laid down in Article 729 of the CCP and based their decision on three considerations. Firstly, he had a coherent plan in terms of both accommodation (long-standing friends who had already assisted a number of people in difficulty) and voluntary work for the Red Cross, such arrangements being stable and long-term. Furthermore, with regard to his attitude towards the victims, the courts pointed out that the applicant had not made the slightest gesture to them and took refuge behind his alleged innocence, but added: “It nevertheless appears that Mr Léger’s conduct does not, after 41 years of imprisonment, represent an obstacle to his release on licence as it might have done in the past.” Lastly, with regard to the prevention of further offences, they noted that the risk of his reoffending was limited (“a zero risk of reoffending is so rare”) and that the recent expert reports were generally in favour of his release on licence. The first-instance court concluded as follows: “There is no evidence to suggest that a more positive development may be expected in Mr Léger’s case, and there is cause to fear that even if his personality may have ‘mellowed’ according to the experts’ findings in 1999, it will not truly change. Accordingly, refusing his application for release on licence would amount to his virtually permanent exclusion from society, which does not seem justified in view of his resettlement plan and the limited nature of the risk of his reoffending.” II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Life sentences 34.     Under the legislation in force on the date of the applicant’s conviction, murder carried the death penalty if it was preceded, accompanied or followed by another serious crime, and was punishable by life imprisonment in all other cases. The death penalty was abolished on 9   October 1981. At the time of the applicant’s conviction life sentences were irreducible; the possibility of parole after a specified minimum term was introduced in a law of 22 November 1978. Article 132-23 of the Criminal Code currently provides for a minimum term of eighteen years in the case of life imprisonment. The term may be increased to a maximum of twenty-two years by a special decision of the Assize Court. Under the Law of 1 February 1994, it is now possible to set a minimum term of up to thirty years, or a whole-life term, where a life sentence is imposed for a certain category of offences, namely the murder, whether premeditated or not, of a minor under fifteen years of age preceded or accompanied by rape, torture or acts of barbarity (Articles 221-3 and 221-4 of the Criminal Code). B.     Parole in France 1.     Development of the parole system 35.     Parole is the longest established means of relaxing the conditions of sentences. It was introduced by the Law of 14 August 1885. The Law initially entrusted decisions on parole to the Minister for the Interior and subsequently, in 1911, to the Minister of Justice, when the latter was assigned responsibility for the Prison Service. The provisions of the 1885 Law were incorporated into the 1958 Code of Criminal Procedure. The Laws of 17 July 1970 and 29 December 1972 removed the requirement of good conduct in prison, making “serious evidence of readjusting to society” the criterion for release on licence, and empowered the judge responsible for the execution of sentences to decide whether to grant a licence to prisoners serving sentences not exceeding three years (this power was extended to sentences not exceeding five years by the Law of 4 January 1993). In the late 1990s the prison authorities were faced with a worrying decline in the number of licences granted, particularly in the case of longer sentences. The powers vested in the Minister of Justice were also strongly contested. In 1999 the Minister of Justice decided to appoint a commission to make proposals for revitalising the parole system. In February 2000 the Study Commission on Parole, chaired by Mr D. Farge, a judge of the Court of Cassation, submitted its report. 36.     Law no. 2000-516 of 15 June 2000 on reinforcing the presumption of innocence and victims’ rights included many of the proposals made in the report. It made radical changes to the laws on parole by removing the Minister’s powers and replacing them with an adversarial judicial procedure, and by broadening the conditions for release on licence. 37.     The Law of 9 March 2004 on adapting the justice system to trends in crime (which came into force on 1 January 2005) completed the process of transferring post-sentencing powers to the judicial system by establishing the post-sentencing courts as ordinary courts. It lays down provisions on post-sentencing measures based on the principle of adapting sentences to the individual (Article 707 of the Code of Criminal Procedure (CCP)): “... The execution of sentences shall encourage the integration or reintegration of convicted persons into society and the prevention of recidivism, while respecting the interests of society and the rights of victims. To that end, sentences may be adjusted during the course of their execution to take into account changes in the convicted person’s personality and circumstances. The adaptation of sentences to the individual must, wherever possible, allow the gradual return of offenders to liberty and ensure that they are not released without any form of judicial supervision.” 2.     The post-sentencing courts 38.     Prior to the Law of 15 June 2000 the competent authority was either the judge responsible for the execution of sentences or the Minister of Justice. In both cases the proceedings did not observe the adversarial principle or due process. Since that date, applications for release on licence falling outside the sphere of competence of the judge responsible for the execution of sentences (persons sentenced to more than ten years’ imprisonment with more than three years remaining to be served) have been examined by judicial bodies: at first instance, the regional parole courts, instituted by the above-mentioned Law (see paragraph 27 above) and subsequently replaced by the post-sentencing courts pursuant to the Law of 9   January 2004 (see paragraph 32 above), and, on appeal, the National Parole Court (see paragraph 28 above), now replaced by the Post-sentencing Division of the Court of Appeal (see paragraph 33 above). Since 1 January 2005, cases have been referred to these courts on an application by the convicted person or on the recommendation of the public prosecutor (Article 712-7 of the CCP). The post-sentencing court gives judgment after obtaining the opinion of a Prison Service representative, following adversarial proceedings in which it hears the public prosecutor’s submissions and the observations of the convicted person and, where appropriate, his or her lawyer (ibid.). An appeal against the post-sentencing court’s judgment may be lodged within a ten-day period (Article 712-11 of the CCP). The Post-sentencing Division of the Court of Appeal comprises, in addition to the president and two other judges, an official from an association for the resettlement of offenders and an official from a victim-support association (Article 712-13 of the CCP). An appeal on points of law may be lodged within five days after the judgment of the appellate division has been served (Article 712-15 of the CCP). 3.     Conditions for release on licence 39.     As regards temporal conditions, Article 729 § 3 of the CCP provides that life prisoners may not apply to be released on licence until a probationary period has elapsed (fifteen years before the Law of 9 January 2004 and eighteen years since). Whereas it was previously impossible to apply for release on licence before the minimum term in relation to the sentence had expired, there is now an exception to this rule: the Law of 9 January 2004 entitles prisoners to ask for the conditions of their sentence to be relaxed even where a minimum term has been set (Articles 720-4 to 720 ‑ 5 of the CCP) if they have shown “serious evidence of readjusting to society”. Lastly, Article 730 of the CCP provides that the situation of convicted persons is reviewed at least once a year if they satisfy the conditions laid down in Article 729 of the CCP. 40.     As regards substantive conditions, Article 729 § 1 of the CCP gives a precise indication of the criteria to be taken into account in examining an application for release on licence: “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an educational or vocational training course, or have taken part in a work experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment, or that they have made efforts to compensate their victims.” 4.     Recent statistics provided by the Government on life prisoners released on licence 41.     On 31 December 2001 there were 578 prisoners serving life sentences; during that year, 48 were released on licence. In 2002, out of a total of 554 life prisoners, 40 were released on licence. In 2003 and 2004 the figures were 543 and 538 prisoners and 22 and 15 licences respectively. 5.     Reports by the National Assembly and Senate commissions of inquiry 42.     The relevant passages of the report by the National Assembly commission of inquiry (“France faced with its prisons”, no. 2521, 28 June 2000, p. 122) and the report by the Senate commission of inquiry on detention conditions (“Prisons: a humiliation for the Republic”, no. 449, 28   June 2000 – section on “The lack of prospects for ‘long-term’ prisoners”) read, respectively: “The abolition of the death penalty in 1981 calls for reflection on how to punish the most heinous crimes and on expectations of prison. Depriving people of their liberty for ever means leaving them to die slowly; opposition in principle to the death penalty implies, on the contrary, that society should envisage in due course the reintegration of those who appeared to have been permanently excluded on account of the atrocity or repetition of their crimes ... Abolition of the death penalty must therefore be translated into a demanding attitude on the part of society towards the prison system. It would be deeply hypocritical to abolish the death penalty without changing conditions of detention, without envisaging reintegration into society and without also accepting the risks to society that such reintegration entails ...”   “France’s prisons house an increasing number of prisoners serving long sentences. They appear to be deprived of all prospects and, in such conditions, form a population that is extremely difficult for prison staff to manage. The post-sentencing scheme, which is supposed to allow sentences to be adapted to the individual, seems to be experiencing difficulties in its implementation, while there has been a worrying decline in measures to relax the conditions of sentences. ... The current scarcity of such measures accounts for the difficulty in implementing a proper post-sentencing scheme. The commission of inquiry has seen in the Netherlands that offenders have genuine prospects of having their sentences relaxed after a certain period of detention; this encourages them to become fully focused on reintegration. ... While the length of detention is increasing, in particular because sentences are becoming more and more severe, measures to relax the conditions of sentences, notably release on licence, are being used only to a limited extent.   ... In enacting the Law on reinforcing the presumption of innocence and victims’ rights, Parliament has decided to carry out a thorough reform of the rules on granting release on licence. The eligibility criteria for such a measure, which were considered overly restrictive, have been broadened. ... The fact remains that the prison system today appears quite helpless in dealing with long-term prisoners.” III.     RELEVANT COMPARATIVE EUROPEAN LAW AND PRACTICE A.     Instruments adopted by the Committee of Ministers of the Council of Europe 43.     Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners: “... I.     Recommends that the governments of the member states: ... 9.     ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted; 10.     grant the prisoner conditional release, subject to the statutory requirements relating to time served, as soon as a favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release; 11.     adapt to life sentences the same principles as apply to long-term sentences; 12.     ensure that a review, as referred to in 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals; ...” In its general report the sub-committee responsible for drafting the resolution stated: “... it is inhuman to imprison a person for life without any hope of release. A crime prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.” Beyond this aspect relating to human dignity, the Committee of Ministers pointed out in Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation that parole was one of the most effective means of reducing overcrowding. 44.     Following on from Resolution (73) 5 on standard minimum rules for the treatment of prisoners, Recommendation No. R (87) 3 on the European Prison Rules takes the similar United Nations rules and adapts them for use at European level. A revised version of the rules was adopted by the Committee of Ministers on 11 January 2006 (Recommendation Rec(2006)2). Rules 102 (Objective of the regime for sentenced prisoners) and 107 (Release of sentenced prisoners) read: “ Objective of the regime for sentenced prisoners 102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” “ Release of sentenced prisoners 107.1 Sentenced prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law-abiding life in the community. 107.2 In the case of those prisoners with longer sentences in particular, steps shall be taken to ensure a gradual return to life in free society. 107.3 This aim may be achieved by a pre-release programme in prison or by partial or conditional release under supervision combined with effective social support. 107.4 Prison authorities shall work closely with services and agencies that supervise and assist released prisoners to enable all sentenced prisoners to re-establish themselves in the community, in particular with regard to family life and employment. 107.5 Representatives of such social services or agencies shall be afforded all necessary access to the prison and to prisoners to allow them to assist with preparations for release and the planning of after-care programmes.” 45.     These rules are to be read alongside Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole) (adopted on 24 September 2003 at the 853rd meeting of the Ministers’ Deputies) and Recommendation Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners (adopted on 9 October 2003 at the 855th meeting of the Ministers’ Deputies). B.     Comparative law 46.     In their presentations of Recommendations Rec(2003)22 and Rec(2003)23 at the ad hoc Conference of Directors of Prison Administration and Probation Service organised by the Council of Europe (Rome, 25-27 November 2004), Ms S. Snacken and Mr P. Tournier gave an overview of legislation on life imprisonment and conditional release in the member States. 47.     In her presentation on life sentences Ms Snacken stated: “A majority of Council of Europe Member States make legislative provision for life sentences. The extent to which such sentences can be, and are in fact imposed, varies. Life sentences do not necessarily imply imprisonment for the remainder of natural life. Most countries make provision for a review of life sentences with the possibility of granting release from prison. Some countries impose a very long period of mandatory detention for lifers, e.g. 30 years in Estonia, 26 years in Latvia, 25 years in Poland, Slovakia and Moldova, 20 years in the Czech Republic, Albania, Romania and Turkey, while in others release is possible after 10 years, e.g. in Belgium, or 15 years in France, Germany, Luxembourg and Switzerland ... Probably the most wide-ranging provisions for the use of life imprisonment are to be found in England and Wales. There, a life sentence is mandatory for murder and a discretionary life imprisonment can be imposed for other serious offences against the person. With mandatory life sentences, a tariff giving the earliest date at which conditional release may be granted is set. ‘Whole life tariffs’ mean that the imprisonment cannot be exhausted during the natural life of the prisoner. This tariff can be reviewed after 25 years. In addition, since 1997, an offender found guilty for the second time of serious sexual or violent crimes automatically receives a life sentence unless there are exceptional reasons for not imposing it (automatic life sentence). By contrast, five European countries, Croatia, Norway, Portugal, Slovenia and Spain, make no legislative provision for life imprisonment. In Croatia, the most severe sanction is a sentence from 20 to 40 years that may only be imposed exceptionally. Conditional release may be granted after one-half, exceptionally one-third, of the sentence has been served. Three persons were sentenced to exceptionally long-term imprisonment between 1998 and 2001. In Norway, the most severe sanction is a determinate sentence of imprisonment for 21 years. Conditional release is possible after 12 years has been served. In Portugal, the maximum prison sentence is for 25 years, exceptionally for 30 years. Slovenian legislation provides for a maximum of 30 years but such a sentence has never been imposed to date. Prisoners serving more than 15 years may be conditionally released after three-quarters of the sentence has been served. In Spain the maximum sentence is imprisonment for 30 years. In Iceland, the legislation provides for life sentences but no such sentence has been imposed since 1940.” Ms Snacken observed that there had been an increase in the number of long-term prisoners – those serving sentences of five years or more, according to the definition given in Rec(2003)23 – as a result of changes in crime policies. In western Europe this increase was linked to the growing number of convicted persons and the decreasing number of prisoners being released. These phenomena were combined with tougher policies