Some annoyance has been expressed in the United Kingdom over the Strasbourg court's Grand Chamber decision in Vinter v United Kingdom [2013] ECtHR 645 (9 July 2013). The Court held that procedures in England and Wales for the release of prisoners serving life sentences imposed without right to apply for parole were so unclear as to leave such inmates without hope. This was a breach of Article 3 of the European Convention on Human Rights, which states:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The essence of the decision was expressed by Judge Power-Forde in his concurring opinion:
"...Article 3 encompasses what might be described as "the right to hope". ... [H]ope is an important and constitutive aspect of the human person. Those who commit the most abhorrent and egregious of acts and who inflict untold suffering upon others, nevertheless retain their fundamental humanity and carry within themselves the capacity to change. Long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed. They ought not to be deprived entirely of such hope. To deny them the experience of hope would be to deny a fundamental aspect of their humanity and, to do that, would be degrading."
Article 3 has a corresponding provision in the ICCPR, Article 7, which has been ratified by many countries, as can be seen from this Wikipedia entry.
Nevertheless, imprisonment for life without the right to apply for release on parole is something that many people find acceptable for the worst offenders. For example, in New Zealand s 103(2A) of the Sentencing Act 2002, and s 20(5) of the Parole Act 2002, both introduced on 1 June 2010, reflect the legislature's acceptance of this form of life sentence. The compassionate release provision in s 41 of the Parole Act 2002 appears to apply to these prisoners, but they have to be "seriously ill and unlikely to recover".
The Vinter controversy raises numerous elementary questions. If a law is enacted by a democracy, can it be called immoral? [Yes.] Who, outside the democracy, can call this law immoral? [Anyone.] When, if ever, should the democracy pay attention to an outsider's opinion about the morality of its law? [Big question. Subjectively: only if the democracy has decided to pay attention. Objectively and pragmatically: if it would be wise for the democracy to pay attention. Objectively and morally: if it would be right for the democracy to pay attention.] Can the democracy change its mind about paying attention to an outsider's opinion about the morality of its law? [As a practical matter, yes, if it insists that it has sovereignty in this respect.] Can the democracy simply ignore the outsider's opinion? [Yes, although it might be more comfortable doing so if there was clear democratic support for ignoring the opinion.] If ignoring the outsider's opinion amounts to breach of international treaty obligations, will there be consequences? [Probably "only" political ones in the form of criticism and perhaps loss of esteem (moral regard) in the context under discussion here.]
The same questions arise if the law was enacted not by a democracy but by a dictatorship, and if the "outsider" is more accurately seen as part of the legal system (a sort of sharer of sovereignty). In all cases the difference over what is moral is settled, as far as the legal system is concerned, by legislation.
A person whose Convention (or Covenant) rights have been breached may find it hard to get a remedy. The ECtHR often declares a breach and then says that the declaration is itself sufficient satisfaction. But as Judge Ziemele said in a concurring opinion in Vinter:
"...where a human rights court, in a dispute between a State and an individual, establishes a violation and where the individual concerned, an injured party, has claimed damages, the declaration that a finding of a violation is sufficient satisfaction does not answer that claim."
The tendency to say that a declaration of a breach is itself sufficient satisfaction reflects the political nature of international relations: there are occasions when what is said is all that can be done. But Judge Ziemele's point was that the court should address damages and if it thinks there should be no damages it should say so, otherwise it should say what is to be paid.
So, the United Kingdom is entitled to have whatever laws it wishes, although getting them may require some adjustment of current international law arrangements. If it wants laws that are internationally regarded as immoral, so be it.
