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You are here: BAILII >> Databases >> European Court of Human Rights >> KAFKARIS v. CYPRUS - 21906/04 [2008] ECHR 143 (12 February 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/143.html Cite as: 25 BHRC 591, (2009) 49 EHRR 35, [2008] ECHR 143, [2010] 1 Prison LR 1 |
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GRAND CHAMBER
CASE OF KAFKARIS v. CYPRUS
(Application no. 21906/04)
JUDGMENT
STRASBOURG
12 February 2008
This judgment is final but may be subject to editorial revision.
In the case of Kafkaris v. Cyprus,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa,
President,
Nicolas Bratza,
Boštjan M.
Zupančič,
Peer Lorenzen,
Françoise
Tulkens,
Loukis Loucaides,
Ireneu Cabral
Barreto,
Nina Vajić,
Snejana
Botoucharova,
Anatoli Kovler,
Stanislav
Pavlovschi,
Javier Borrego Borrego,
Elisabet
Fura-Sandström,
Dean Spielmann,
Sverre
Erik Jebens,
Danutė Jočienė,
Ján
Šikuta, judges,
and Michael O'Boyle, Deputy
Registrar,
Having deliberated in private on 24 January 2007, on 27 June 2007 and on 5 December 2007,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
There appeared before the Court:
(a) for the Government
Mr P. Clerides,
Attorney-General
of the Republic of Cyprus, Agent,
Mr B.
Emmerson, Q.C.,
Mr S. Grodzinski, Barrister-at-law,
Mrs M.
Clerides-Tsiappas, Senior Counsel of the Republic, Counsel;
(b) for the applicant
Mr A. Demetriades,
Barrister-at-law, Counsel;
Mrs J. Loizidou,
Barrister-at-law,
Ms S. Bartolini, Advisers.
The Court heard addresses by Mr Demetriades and Mr Emmerson and the answers of the parties' representatives to questions put by judges. The Government requested, and were granted, permission to complete their reply in writing. Furthermore, the applicant requested, and was granted, permission to reply to the Government's comments of 23 January 2007.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
“The Law on the basis of which the accused has been found guilty on three counts of premeditated murder, provides that:
'Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life'.
It follows, therefore, that for the offence in question life imprisonment is imposed by the court as a mandatory sentence.
Mr Kyprianou, on behalf of the Prosecution, has invited the court to examine the meaning of life imprisonment and decide whether it means imprisonment of the convicted person for the rest of his life or whether it means, as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”) as provided by Reg. 2 of the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”), adopted under section 4 of the Prison Discipline Law (Cap 286), imprisonment for a period of 20 years. Mr Kyprianou has suggested that in the event that the court concludes that life imprisonment is interpreted as being for twenty years, an interpretation which, if we understood him correctly, he claimed as the correct one, then the issue as to whether the sentences should be imposed consecutively or concurrently would arise. It was, finally, his suggestion, which was in fact the purpose for which he referred to this matter, that, if this was the outcome, it would be correct in the present case, taking into account the special circumstances of the commission of the offences, that the sentences should be served consecutively.
The same issue, in substance, was put before the Nicosia Assize Court in case no. 31175/87 between the Republic of Cyprus v Andrea Costa Aristodemou, alias Yiouroukkis. In that case the Assize Court, in its detailed judgment, in which reference is made to the general principles governing the issue and also to the jurisprudence, concluded that the meaning of life imprisonment lies in the clear meaning imparted by the words, and that the Assize Court was not competent to examine the validity of any regulations or to take into account any possible repercussions they could have on the sentence. We completely agree with this judgment to which we refer. Concerning the validity of the Regulations, the Attorney-General of the Republic could probably have looked for other mechanisms for deciding the matter at the time when the competent authorities attempted to implement the specific regulation. We do not make mention here of the constitutional right of the President to grant pardon. With regard to the court's observation that the repercussions of such regulations, if it is assumed of course that they are valid, are not taken into account, we refer in addition to the decision in Anthony Maguire Frederick George Charles Enos 40 Cr. App. R. p. 92, Martin Derek Turner 51 Cr. App. R. p. 72 and R. v. Black (1971) Crim. L.R. 109.
We consider that imprisonment for life means imprisonment for the remainder of the convicted person's life. It is therefore pointless to consider whether the sentences will run concurrently or whether they will be served consecutively”.
B. Habeas corpus proceedings before the Supreme Court
1. First instance proceedings
In his judgment Kallis J stated, inter alia, the following:
“...What is of importance in the present case is the principle set out in the case of Hogben and not the differences in the details of the facts. The principle then that has been laid in the case of Hogben is that Article 7 applies only to the sentence that is imposed and not to the manner of serving the sentence. Therefore Article 7 does not prohibit a retrospective change in the law or in practice concerning release or conditional release from prison of a prisoner.
I am therefore of the view that the principle set out in Hogben can be applied in the present case. Everything that the learned counsel of the applicant has pleaded has to do with the practice of release from prison. In the instant case the Assize Court imposed a sentence of life imprisonment on the applicant and explained to him at the same time that life imprisonment meant imprisonment for the remainder of his life. What the prison authorities then did, with the F5 form, constitutes an action concerning the execution of the sentence. After the case of Hadjisavvas the Regulations on the basis of which the prison authorities gave the applicant the F5 form, have ceased to apply, with the result that the sentence of life imprisonment imposed on the applicant by the Assize Court is applicable. What happened was a change in the legal situation concerning the time of the applicant's release. As in the Hogben case, Article 7 § 1 of the Convention is not applicable.
...
I endorse the principle set out in Hogben. I consider that the applicant cannot derive a right to judicial review on the basis of Article 5 § 4 of the Convention because of the alleged change in the date of his release from prison which does not change the legal basis for his detention. It should be emphasised that his detention is founded on the sentence of life imprisonment imposed on him by the Assize Court and this had been explained to him as 'imprisonment for the remainder of his life'. It follows that the relevant suggestion by Mr Demetriades does not stand and is dismissed.
On this occasion, I should add that the decision of the Commission on the issue of interpretation of Article 5 § 4 of the Convention is in line with the jurisprudence of the European Court of Human Rights (see De Wilde, Ooms and Versyp cases 'Vagrancy cases' Series A: judgment of 18 June 1971, p. 12) ...
...
The fact that Hogben is a decision of the Commission does not render it less persuasive. It constitutes a decision of a specialised organ with vast experience in interpreting the Convention. It therefore constitutes an authority of great persuasiveness. I am satisfied about the correctness of the Commission's decision in Hogben, which I have endorsed.
It was further the suggestion of Mr Demetriades that 'this kind of sentence imposed on the applicant without the possibility of examination by a Parole Board does not conform with Article 3 of the Convention'.
...
I endorse the above approach [in Hogben]. Its essence is that the change in release policy does not constitute a violation of Article 3 of the Convention. The existence or not of a Parole Board does not form part of the ratio of the decision. This answers the suggestion of Mr Demetriades concerning the absence of a Parole Board in Cyprus. Consequently, his suggestion based on Article 3 of the Convention does not stand and is dismissed.
...
Finally, I must note that the applicant has sought his release from prison through an order of habeas corpus. As stated, however, in the case of Doros Georgiades (Civil Appeal no. 11355, 3 October 2002), adopting the relevant position of English jurisprudence (see Halsbury's Laws of England, 4th edition, Volume 11, §§ 1472 and 1473):
'In general the writ of habeas corpus will not be granted to persons convicted or in execution under legal process, including persons in execution of a legal sentence after conviction on indictment. The writ of habeas corpus will not be granted where the effect of it would be to review the judgment of one of the superior courts which might have been reviewed on appeal or to question the decision of an inferior court or tribunal on a matter within its jurisdiction; or where it would falsify the record of a court which shows jurisdiction on the face of it.'
Consequently, the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal.”
2. Appeal proceedings
“The existence on the date on which the sentence was imposed on the convicted person of the Regulation that defined a sentence of life imprisonment as being twenty years, the issuing of the F5 notice, the admission that the applicant would have been released on 2 November 2002 if the aforementioned Regulation had been applicable and the sudden annulment of all the above constituted inhuman and degrading treatment.
The Republic cannot behave in this way towards the applicant's life without any consequences for anyone apart from the applicant, who had to live with this uncertainty.
The aforementioned change of twenty years' imprisonment to imprisonment for life following an error by the House of Representatives and/or the Attorney-General of the Republic and/or the President of the Republic constitutes, without any fault on the applicant's part, inhuman and degrading treatment which, on account of its uncertainty, violates Article 3 of the Convention.
The aforementioned change from the imposed twenty years' imprisonment to a death sentence, which will take effect on an unknown date given the fact that there is no possibility of re-examining the matter, constitutes inhuman treatment contrary to Article 3 of the Constitution. Indeed, this becomes even more obvious, when one considers that the death penalty has already been abolished in Cyprus.”
“The appellant is essentially raising one issue. And his learned counsel has acknowledged that judgment as to this [issue] will determine the conclusion ... We summarise the appellant's positions as set out in the grounds of appeal as explained.
He does not invoke the Regulations as an autonomous ground for his release, especially since ... they are not applicable any more. Furthermore, he does not suggest or attempt a review of the Assize Court's judgment, as was wrongly perceived at first instance. We are not going against, as he explained, the Assize Court's judgment but the Republic as a whole. The Regulations were then applicable at that time and since the Assize Court had not annulled them for being unconstitutional, we must conclude that it considered them valid. And since the law does not provide a definition of the term 'life imprisonment', it was an element of the regulation of the sentence provided. As Mr Demetriades put it, the overall legal situation at the time of the imposition of the sentence, indicated that life imprisonment meant in essence twenty years' imprisonment. In addition, even if there was doubt, this had to be taken to the applicant's benefit. Hence, in view of this fact, there was no reason to lodge an appeal against the Assize Court's judgment especially since the applicant had been served with the F5 notice.
...
The suggestion of the appellant presumes that a judicial assessment of unconstitutionality, or, more precisely, that the Regulations are ultra vires in relation to the law on the basis of which they were issued, brings about legislative change of whatever form. However, as has been decided (see Georgios Mavrogenis v. The House of Representatives and Others (1996) 1 A.A.D 315, at 341 and Alekos N. Clerides v. The Republic of Cyprus, 20 October 2000), judicial assessment necessarily adjudicates retrospectively on the law or regulation and, as the principle of separation of powers dictates, it does not entail a legislative development. It is a fact, however, that this question, both at first instance and before us, has not been touched upon from this point of view so as to raise the issue of Law 62(1)/96.
In any event the Assize Court imposed a sentence of life imprisonment on the appellant, expressly specifying that this meant imprisonment for the remainder of his life. This was the reason for which it did not examine the question of possible consecutiveness and the appellant's perception that it is inferred that the Assize Court recognised the Regulations as valid is wrong. The Assize Court essentially considered that the Regulations were not connected with the issue of the sentence envisaged for it did not consider that the then existent Regulations changed the fact that in accordance with the law, imprisonment for the remainder of the appellant's life was imposed.
Was this approach wrong? Did in reality the law, viewed as a whole, even in the light of the interpretation suggested by the appellant comparing Article 7 § 1 of the Convention with Article 12 (1) of the Constitution, envisage imprisonment for only twenty years? We would say that the first instance judgment was not wrong in finding that this situation corresponded to the one in the case of Hogben. The principle applied, namely that Article 7 § 1 of the Convention does not concern the enforcement of the sentence, which remains one of life imprisonment, is not in question. The Regulations were made on the basis of and for the purposes of the Prison (Discipline) Law, whereas it is the Criminal Code that determines the sentence, in this case mandatory life imprisonment and no other.
Nevertheless, and as Mr Demetriades also agreed, we are not reviewing the correctness of the judgment of the Assize Court. Such review does not fall within the [court's] jurisdiction in the context of a habeas corpus application.
...
The appellant is being detained on the basis of an Assize Court judgment after being sentenced to life imprisonment, determined as imprisonment for the remainder of his life. Thus, he is being detained on a lawful basis and his application for release was correctly rejected with the final observation that 'the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal'.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Life sentences
“Any person who causes the premeditated death of another person by an unlawful act or omission is guilty of the crime of premeditated murder.”
“Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life.”
Before its amendment by Law 86/83, the above Section provided the mandatory sentence of the death penalty for the offence of premeditated murder.
“The first objective of Article 7 (2) [of the Constitution] is to sanction the death penalty for the limited class of grave crimes specified therein. The second, to vest competence in the legislature to fix such measure of punishment as mandatory in exercise of its legislative power.... The expression 'a law may provide' in the second part of Article 7 (2) imports discretion leaving it to the legislature to ordain the death penalty for premeditated murder as a matter of legislative policy. They are not bound but may do so if they deem it appropriate. By necessary implication they may ordain any other fixed measure of punishment including, no doubt, a sentence of life imprisonment. ... Obviously the constitutional legislation singled out the crimes listed in 7 (2) for exceptional treatment in view of their gravity and their repercussions on the well being of society. In the case of premeditated murder what marks the gravity of the offence is the element of premeditation that necessarily renders the crime particularly heinous. In agreement with the Assize Court, we rule that sections 29 and 203 (2) of the Criminal Code are not unconstitutional and as such make a sentence of life imprisonment obligatory upon conviction for premeditated murder.”
B. Provisions concerning the release of prisoners
1. The Constitution
“1. The President or the Vice-President of the Republic shall have the right to exercise the prerogative of mercy with regard to persons belonging to their respective Community who are condemned to death.
2. Where the person injured and the offender are members of different Communities such prerogative of mercy shall be exercised by agreement between the President and the Vice-President of the Republic; in the event of disagreement between the two the vote for clemency shall prevail.
3. In case the prerogative of mercy is exercised under paragraph I or 2 of this Article the death sentence shall be commuted to life imprisonment.
4. The President and the Vice-President of the Republic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of the Republic, remit, suspend, or commute any sentence passed by a court in the Republic in all other cases.”
2. Prison Discipline Law (Cap. 286)
Section 4 - Regulations for prison discipline
“The Governor in Council may make regulations for the proper custody and support of prisoners, for the nature and amount of labour to be performed by them, for the classification of prisoners according to their different sentences, for the punishment of offences committed by prisoners, and for the maintenance of good order and discipline in prisons. All such regulations, before coming into force, shall be published in the Gazette.”
Section 9 (1) - Remission for good conduct
“Regulations made under section 4 may make provision whereby, in such circumstances as may be prescribed by the regulations, a person serving a sentence of imprisonment may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct; and on the discharge of a person from a prison in pursuance of any such remission as aforesaid his sentence shall expire.”
Section 11(1) - Release on licence of persons serving imprisonment for life
“The Governor may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Governor may from time to time determine.”
3. The Prison (General) Regulations of 1981 (Regulatory Act 18/81)
Regulation 7 - Release of a prisoner
“No convicted person shall be discharged from the Prison before the expiration of his sentence except as provided by Article 53 paragraph 4 of the Constitution of the Republic of Cyprus.”
Regulation 94 – Remission of sentence for good conduct
“Every prisoner serving a sentence of nine years or more may be granted remission of one half of the sentence, on the ground of good conduct and industry.”
Regulation 96(c) – Calculation of remission for life prisoners
“Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life, remission of the sentence shall be calculated as if the imprisonment is for twenty years.”
Regulation 97 – Date of expiration of sentence
“The date of the expiration of the sentence and the earliest possible date of discharge shall be entered in the Personal Record of each prisoner, and in the Discharge Book to be kept at the prison and the Director shall inspect such records and Discharge Book at frequent intervals so as to ensure that the provisions of this Regulation are strictly complied with.”
Regulation 99 – Prisoners serving a life sentence
“The Director shall submit to the Minister for transmission to the Attorney-General of the Republic the name of every prisoner serving a life sentence who has served ten years of such sentence, or of every prisoner serving a sentence exceeding fifteen years who has served eight years of his sentence, who has attained, or is believed in the absence of positive evidence to have attained, the age of 60, for consideration of his case. The Director shall communicate this rule to every such prisoner. Prisoners must be made distinctly to understand that the submission of their name to the Minister in no way implies that any remission of sentence will be necessarily granted.”
4. The Prison (General) (Amending) Regulations of 1987 (Regulatory Act 76/87)
“In the present Regulations:
...
'imprisonment for life' means imprisonment for twenty years.
...”.
“(i) Every prisoner serving a sentence of imprisonment for life may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of such sentence.
(ii) The decision on the reduction of the sentence, as well as the extent of such remission for each aforesaid prisoner, shall not be taken unless the said prisoner has served fifteen years of his sentence.”
5. Domestic case-law and practice
“...the power for the enactment of subsidiary legislation must, in the nature of things, emanate strictly from the provisions of the enabling law. Any other approach would constitute an encroachment on the legislative powers of the House of Representatives, the body exclusively entrusted with legislative powers, under our Constitution. Subsidiary legislation enacted without just cause will be declared ultra vires ... A body to which power is delegated to legislate must derive authority from the provisions of the enabling enactment; any attempt to bypass or transgress the limits set thereto will be struck down as ultra vires. They cannot infer the existence of any authority to legislate, other than that expressly conferred by law, and must, therefore, confine themselves to the four corners of the enabling enactment. Any relaxation of this approach would certainly undermine the system of separation of powers that pervades our system of law and finds expression in the Constitution.”
“...Under Article 53 (4) of the Constitution the President of the Republic remitted the sentence passed by the Court and not the sentence that would have been served in the light of Regulation 94. This is clear from the wording of Article 53 (4) which in so far as material on this point says that 'The President... remits... any sentence passed by a court in the Republic....”
“The accused has been sentenced to life imprisonment after being found guilty of premeditated murder. This sentence is imposed by the Court mandatorily; since it is the only one provided by the Criminal Code, Cap. 154, as amended by Law 86/83, which also amends section 29 of the Criminal Code, the Court cannot impose another sentence for the crime of premeditated murder. After the abolition by this Law of the death penalty, the legislature provided for the above sentence so it would be in agreement with Article 53 (3) of the Constitution. This article provides for the commutation of a death sentence to a sentence of life imprisonment, in the event that the President of the Republic exercises his right of pardon on the basis of paragraph 1 of that article.
...
Counsel for the accused suggested that the Court should order that the sentence of life imprisonment that was imposed on the accused should run concurrently with the one he is already serving.
...
...[i]n support of his suggestion he referred to the case of R v. Foy (1962) 2 All E.R. 246.
...In contrast, Mr Kyprianou argued that the Court must order that the sentence imposed should be served after the one already being served by the accused because, on the basis of the Regulations of 1987 (Official Gazette of the Republic, Annex 3, Part 1 of 13/3/87), which were made by the Council of Ministers and published in the Official Gazette of the Republic after being put before Parliament, the interpretation of the term 'life imprisonment' is given as meaning 'imprisonment for 20 years'. Regulation 93 of these Regulations provides that a person sentenced to life imprisonment may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of this sentence. Therefore, Mr Kyprianou continued, the sentence of life imprisonment has been determined at a period of 20 years, or 15 if the convicted person demonstrates good conduct. Consequently, what Lord Parker said in the case of R. v. Foy, on which counsel for the accused relied, does not apply. Mr Kyprianou also showed his concern, as Senior Counsel of the Republic, about the possible cases, such as the present one, where one person commits many murders but is only given one sentence of imprisonment for 15 or 20 years.
Our opinion is that neither Mr Kyprianou nor Mr Clerides is treating the legal issue correctly.
...
On the basis of everything said by Lord Parker [in the case of R v. Foy (1962) 2 All E.R. 246], life imprisonment means imprisonment for the remainder of the time for which the applicant is alive. Accordingly, and since a sentence of life imprisonment has been imposed on the accused, no other such sentence can follow. Mr Clerides suggests, however, that the court must issue this order, for he is also basing himself on the Regulations of 1987 and is concerned that, since these Regulations are in force, the accused may possibly be released in fifteen years and thus is not facing the danger of serving another prison sentence of fifteen or twenty years, if the second sentence follows the first one.
Article 12 (1) of the Constitution provides that a court may not impose a longer sentence than that provided for by the law at the time of the commission of the offence. The Criminal Code indeed provides that the sentence of life imprisonment is mandatory and the only sentence following conviction for premeditated murder. In our judgment, the sentence 'imprisonment for life' means exactly what is stated by the simple Greek words, that is, imprisonment for the remainder of the biological existence of the convicted person. This interpretation was also given by the Court of Appeal of England in the case of R v. Foy ... As we have already stated, section 203 (2) of the Criminal Code is the only provision prescribing the sentence of life imprisonment as mandatory, and this in the light of the provisions of Article 53 (3) of the Constitution. The Regulations of 1987 were drawn up on the basis of the Prison (Discipline) Law (Cap. 286), which still applies on the basis of the provisions of the Constitution even though it was enacted just when Cyprus became an English colony. The provisions of this law, however, have to be applied in such a way that they comply with the express provisions of the Constitution. We wonder whether these Regulations are not unconstitutional and whether the interpretation of the term 'imprisonment for life', which is encountered in the Constitution and the Criminal Code, so as to mean 'twenty years', is arbitrary. We say 'we wonder' since such an issue has not been raised before us and thus we have no right in this procedure to convey an opinion on this. Another observation that can be made, however, is the following: it appears that the drafters of the Regulations, even if they are valid, did not notice the special provision of section 11 of the above Law (Cap. 286) which concerns life prisoners and provides that they may be released on licence by a decision of the “Governor”, which may be revoked. The life sentence is specifically provided for in the above Law to last for life, along the lines of the English legal system. This is why Lord Parker stated what we quote above. Another issue that is raised, even for the purposes of academic debate, is to what extent a law or regulation can provide for the remission, suspension or commutation of a convicted person's sentence in view of the express provision of Article 53 (4) of the Constitution which bestows this privilege on the President of the Republic with the concurrence of the Attorney-General.
It has been established by judicial precedent that when the court imposes a sentence, it does not take into account regulations, even if they are applicable, that allow for the remission of the sentence when a convicted person displays good conduct. The Regulations of 1987 were made in order to serve the purposes to which the court does not refer when passing the sentence, which is determined on the basis of the applicable legislation and the Constitution. It is therefore up to the competent authorities, when and if the matter is raised at the appropriate time, to take into account what we have mentioned above in the form of legal observations. We have already imposed on the accused the sentence that the law envisages, that is, life imprisonment, and we have nothing else to add.”
“In reply to your letter dated 26 September 1991 and file no. F162/2/a, I would inform you that the convicted person Andreas Aristodimou Yiouroukkis, to whom your letter refers, was sentenced to life imprisonment by the Nicosia Assize Court on 5 February 1988 in criminal case no. 31175/87 and this was interpreted in the Assize Court's judgment to mean imprisonment for the rest of his biological existence.
This legal approach concerning the nature of life imprisonment was also adopted in a subsequent case, no. 23069/87, by the Limassol Assize Court on 10 March 1989.
In view of the above, the duration of the sentence in the case of a sentence of life imprisonment is not determined and is not reduced in accordance with Regulation 2 and Regulation 93 (1) of the Prison (General) Regulations 1981 and 1987 respectively, but the sentence in question is subject to remission or suspension by the President of the Republic, in accordance with Article 53 (4) of the Constitution, who in exercising his powers, may take into account, among other things, the spirit of the abovementioned Regulations 2 and 93 (1).”
“In reply to your letter dated 3 December 1991 and file no. Y.D. 12.7.01, concerning the duration of the life imprisonment of the convicted person, Andreas Aristodimou Yiouroukkis, I observe the following:
...
In the present case the Nicosia Assize Court, when it imposed the sentence of life imprisonment on the above-mentioned convicted person, interpreted section 203 (2) of the Criminal Code, Cap. 154 (as amended, for this purpose, by Law 86/83) and judged that life imprisonment means imprisonment for the rest of the convicted person's biological existence. Consequently, there is a court judgment for the duration of the sentence of the specific convicted person which has not been overruled on appeal and is binding and mandatory for all the authorities of the Republic.
The interpretation of the relevant provision of the Criminal Code given by the Nicosia Assize Court, was followed ..., in a subsequent case, by the Limassol Assize Court and since this interpretation has not been questioned by another Assize Court or overruled by the Supreme Court, it must be regarded as the correct judicial interpretation of the Criminal Code provision in question and must be applied in the future to all situations where an accused is sentenced to life imprisonment, even if reference is not made in the judgment to the fact that such imprisonment means imprisonment for the rest of his biological existence.
...
No issue of unequal treatment of prisoners who are serving a sentence of life imprisonment in comparison with prisoners who are serving sentences of a shorter term can be raised, because the sentence of life imprisonment, owing to its nature, differs radically from any other sentence of imprisonment and issues of unequal treatment can arise only when comparing similar, and not dissimilar, things.
Furthermore, there is no possibility of applying secondary legislation, such as the Prison (General) Regulations of 1981 and 1987, when this conflicts with primary legislation such as the relevant provision of the Criminal Code. This is why, to the extent that the Regulations in question conflict with the relevant provision of the Criminal Code as it has been interpreted judicially, they cannot be applied.
...
...when the President of the Republic, in cooperation with the Attorney-General, examines the possibility of remission of the sentence in accordance with Article 53 (4) of the Constitution, in the case in which the convicted person is serving a sentence of life imprisonment, he will have in mind that the sentence, unless there is a remission, means imprisonment for the remainder of the biological existence of the convicted person and will act accordingly in the light of the circumstances of the case.”
“The Criminal Code provides a mandatory sentence for the crime of premeditated murder: '...a sentence of imprisonment for life' (see Section 203(2) of the Criminal Code as amended by Law 86/83). The constitutionality of this provision of the law was examined in the case of Politis v. Republic (1987) 2 C.L.R. 116 and was held to be correct in the light of the provisions of Articles 7 (2) and 12 (3) of the Constitution. The sentence of life imprisonment is not equated by the legislature with a prison sentence for any period of time, neither where it is imposed as a mandatory punitive measure on the basis of section 203 (2) nor as a discretionary measure under section 29 of the Criminal Code, Cap. 154. This would anyhow be contrary to the provisions of these two sections of the Criminal Code since life imprisonment is mandatory for the crime of premeditated murder whereas for the purposes of section 29, where life imprisonment is a discretionary measure, the courts have the discretion to impose a sentence of a shorter period. A prison sentence for a period shorter than life imprisonment may comprise a sentence longer than imprisonment for twenty years with which life imprisonment is equated on the basis of Regulation 2 of the Prison Regulations. In the case of Georghios Aristidou v. Republic (1967) 2 C.L.R. 43 the Court of Appeal imposed a sentence of imprisonment of twenty-five years following the commutation of the appellant's conviction for premeditated murder to manslaughter.
Mr Pourgourides [the applicant's advocate] suggested that the enactment of the Prison (General) (Amendment) Regulations of 1987 (Regulatory Administrative Act 76/87) by the Council of Ministers with the approval of the Parliament, as provided by the enabling Law for the Submission to the House of Representatives of Regulations issued under the Law of 1985 (N. 51/85) and the Prison Discipline (Amendment) Law of 1983 (N. 85/83) resulted in the amendment of the relevant provisions of the Criminal Code so that a sentence of life imprisonment entailed only imprisonment for twenty years. In support of his position he referred to Bennion, Statutory Interpretation, 2nd edition, pp. 154-155, where it is stated that in the United Kingdom the amendment of secondary legislation by Parliament entails its transformation into primary legislation.
This suggestion ignores:
(a) the fact that the Prison Regulations were made within the scope of the authority granted by the Prison (Discipline) Law and not on the basis of the Criminal Code;
(b) the direct connection between the Regulations of 1987 with the authority granted by section 4 of Cap. 286 and the fact that authority for their issue is drawn exclusively from the provisions of that law;
(c) the strict separation of powers which applies in Cyprus and the restriction of the executive to the enactment of secondary legislation on the basis of express authority which is granted by primary legislation (see Police v. Hondrou & Another, 3 R.S.C.C. 82; Malachtou v .Attorney-General (1981) 1 C.L.R. 543, and Payiatas v. Republic (1984) 3 C.L.R. 1239).
Acceptance of Mr Pourgourides's position would have, inter alia, as a consequence the involvement of the executive in the enactment of primary legislation in violation of Article 61 of the Constitution and the principle of separation of powers. In President of Republic v. House of Representatives (1985) 3 C.L.R. 2165 and President of Republic v. House of Representatives (1986) 3 C.L.R. 1159, it is noted that the participation of Parliament in the creation of secondary legislation does not transform its nature into primary legislation.
In Republic v. Sampson (Civil Appeal 8532, decided on 26 September 1991) the full bench of the Supreme Court had the opportunity to examine the legal status of the Prison Regulations in relation to the enabling law, the Prison (Discipline) Law, Cap. 286. At the outset we noted that this law was enacted in 1879 and, as with any other colonial law which was in force at the time of the proclamation of the Republic, the provisions of Cap. 286 are applied while being adjusted 'to the necessary extent to the Constitution” (Article 188 (1) of the Constitution). This adjustment, as we have pointed out, is within the competence of the judiciary (see, inter alia, Diagoras Development v. National Bank (1985) 1 C.L.R. 581, and United Pibles Societies (Gulf) v. Hadjikakou (Civil Appeal 7413, decided on 28 May 1990).
The adjustment of the provisions of Cap. 286 ensures that its provisions are compatible with the principle of the separation of powers, which constitutes the judiciary as the sole judge of the punishment of offenders (see, inter alia, Politis (cited above) and The District Officer of Nicosia v. Hadjiyiannis, R.S.C.C. 79; The District Officer of Famagusta v. Demetra Panayiotou Antoni, 1 R.S.C.C. 84; The Superintendent Gendarmerie of Lefka v. Christodoulos Antoni Hadjiyianni, 2 R.S.C.C. 21; Morphou Gendarmerie v. Andreas Demetri Englezos, 3 R.S.C.C. 7; The District Officer of Nicosia v. Michael Ktori Palis, 3 R.S.C.C. 27; The District Officer of Famagusta v. Michael Themistocli and Another, 3 R.S.C.C. 47; Nicosia Police v. Djemal Ahmet, 3 R.S.C.C., 50; The District Officer of Kyrenia v. Adem Salih, 3 R.S.C.C. 69; Miliotis v. The Police (1975) 7 J.S.C. 933).
Consequently, to the degree and extent that section 4, in conjunction with section 9, of Cap. 286 confers power for the determination of the duration of a sentence of imprisonment on an authority other than a judicial one, it is contrary to the Constitution and has ceased to be in force following the proclamation of the Republic. Besides, the granting of power to the Director of Prisons to remit the sentence because of good conduct and industry, under the provisions of Regulation 93, is contrary to the principle of the separation of powers, which precludes the involvement of an executive or administrative organ in the determination of the punishment of an offender. The only authority on whom power is conferred by the Constitution to remit, suspend or commute a prison sentence is the President of the Republic, acting with the concurrence of the Attorney General. The examination of the power to make secondary legislation conferred by sections 4 and 9 of Cap. 286 is not directly required in this case, since neither of the two provisions concerns the serving of a sentence of life imprisonment. The serving of life imprisonment is regulated specifically by the provisions of section 11 of Cap. 286, from which it emerges that life imprisonment means imprisonment for the remainder of the life of the convicted person, subject to the right granted to the President of the Republic to suspend the sentence for such period of time as may be fixed on the release of the convicted person on licence. Section 11 of Cap. 286 is in harmony with the Constitution and has maintained its force after the proclamation of the Republic inasmuch as it is consistent with the powers conferred on the President of the Republic by Article 53 § 4 of the Constitution.”
“Dear Mr President,
Anastasis Savva Politis (convict no. 7035 in the Central Prisons) was sentenced by the Nicosia Assize Court to life imprisonment for premeditated murder.
On the basis of the applicable Prison (General) Regulations 1981 and 1987, it was considered that life imprisonment was equal to imprisonment for twenty years and it was announced to him, the day after he was sentenced, that his sentence would be twenty years' imprisonment from 26 December 1986.
In the meantime his sentence was reduced to eight years' imprisonment on account of a presidential pardon in respect on 1/5th of the sentence (four years), on the occasion of the election of the new President of the Republic in 1988, and on account of the remission of eight years for good conduct and industry, in accordance with the Prison (General) Regulations, and the date of his release was determined as 25 December 1994.
On 5 February 1988 the Nicosia Assize Court, in another case, judged that life imprisonment was for the remainder of the biological existence of the convicted person and, hence, on 29 January 1992, I gave the opinion that in such a case the relevant Regulations cannot be applied in a way that would automatically reduce life imprisonment to twenty years' imprisonment.
In the light of all the above, I suggest that this convicted person's sentence should be commuted to twenty years' imprisonment and reduced by four years on the basis of the presidential pardon of 1988 and by such an additional period that he may be immediately released.
The life prisoners Andreas Soteriou Lemonas, and Demetris Xadjisavvas and Demetris Miliotis were afforded the same treatment, the first two in April 1993 and the last-mentioned recently.
I take this opportunity to suggest, on humanitarian grounds, that the sentences of all life prisoners whose date of release was determined, on the basis of the Prison (General) Regulations 1981 and 1987, as falling within the years 1993 and 1994 should be commuted to twenty years' imprisonment and reduced so they may be released immediately and not kept in a state of agony as to whether they will eventually receive the same treatment.
The next date determined, on the basis of the above Regulations, for release of a life prisoner is the year 2000.
The relevant order is enclosed for your signature in the event that you agree with my above suggestion.”
“Because the convicted person Anastasis Savvas Politis (no. 7036) was sentenced, on 27 January 1987, in criminal case no. 537/87, by the Nicosia Assize Court, to life imprisonment for premeditated murder, and
Because the Attorney-General of the Republic, after taking into account the special circumstances of the case, has recommended, based on Article 53 (4) of the Constitution, commutation of the sentence to imprisonment of twenty years and its remission so that he may be released immediately;
For this reason, on the recommendation of the Attorney-General of the Republic, by this Order, on the basis of Article 53 (4) of the Constitution, the convicted person's sentence is commuted to twenty years' imprisonment and is remitted so that he is released immediately.”
“The President of the Republic, on the basis of recommendations to this end by the Attorney-General of the Republic, and with the opportunity of the first anniversary of the Independence of the Republic of Cyprus during his presidential term, has decided to remit the sentences, so that they are released immediately, of the following life prisoners, who, if their sentences had been assessed on the basis of twenty years' imprisonment, would have been released in 1993 or 1994:
Ian Michael Davison
Abdel Hakim Saado El Khalifa
Khalet Abdel Kader El Khatib
Saadeldin Mohammad Idress
Achilleas Georgiou Avraam
Anastasis Savva Politis.”
6. The Prison Law of 1996 (Law 62(I)/96), as amended
“(1) No prisoner who is serving a sentence of imprisonment may be discharged from prison until he has served his sentence in accordance with the provisions of this law except in the case provided for by Article 53 (4) of the Constitution of the Republic or any other law in force.”
“(1) In accordance with the provisions of this Law, a person who is serving a prison sentence shall obtain remission of his sentence if he displays good conduct and industry, unless a sentence of life imprisonment has been imposed on him.”
“(1) Subject to the provisions of the Constitution, the President of the Republic, with the agreement of the Attorney-General of the Republic, may order by decree the conditional release of a prisoner at any time.
(2) A prisoner who is conditionally released by virtue of this section, may, until the expiry of his sentence, be under the supervision and inspection of a person specified in the Decree of Conditional Release and shall conform to whatever other conditions and restrictions are set out in the said Decree.
(3) The President of the Republic, with the agreement of the Attorney-General of the Republic, may at any time by a new decree amend or nullify the conditions and restrictions contained in the decree issued by virtue of subsection (1) above.
(4) If before the expiry of the sentence of the prisoner who is released, as referred to above, the President of the Republic, with the agreement of the Attorney-General of the Republic, is satisfied that the said person has failed to comply with any valid condition or restriction set out in the decree, he may by a new decree revoke the convicted person's conditional release and order his return to prison to serve the rest of his sentence.
(5) After the convicted person's return to prison he shall be entitled to the benefits provided in section 12 of this Law only after one year has elapsed from the date of his return to prison and provided that during this year he has displayed industry and good conduct.
(6) The period of time from the date of the decree for the release of the prisoner on the basis of this section until the date of its revocation shall be included in the period of the sentence served by the prisoner.
(7) A prisoner who does not comply with the decree revoking his release shall be deemed to be a fugitive from lawful detention.”
C. Additional relevant provisions of the Constitution
1. Part II: Fundamental Rights and Liberties
Article 7 (2)
“No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law.”
Article 8
“No person shall be subjected to torture or to inhuman or degrading punishment or treatment.”
Article 12 (1)
“No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed.”
Article 12 (3)
“No law shall provide for a punishment which is disproportionate to the gravity of the offence.”
2. Part IX: The Supreme Constitutional Court
Article 144
“1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court.
2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the Court by which such question has been reserved.
3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.”
3. Part VI: The Independent Officers of the Republic
“1. The President and the Vice-President of the Republic shall appoint jointly two persons who are qualified for appointment as a judge of the High Court one to be the Attorney-General of the Republic and the other to be the Deputy Attorney-General of the Republic.
...
2. The Attorney-General of the Republic shall be the Head and the Deputy Attorney -General of the Republic shall be the Deputy Head of the Law Office of the Republic which shall be an independent office and shall not be under any Ministry.
...
4. The Attorney-General and the Deputy Attorney-General of the Republic shall be members of the permanent legal service of the Republic and shall hold office under the same terms and conditions as a judge of the High Court other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of the High Court.
....”
“1. The Attorney-General of the Republic assisted by the Deputy Attorney-General of the Republic shall be the legal adviser of the Republic and of the President and of the Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law.
2. The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.”
D. Extracts from the ex officio report by the Commissioner for Administration (Ombudsman) of the Republic of Cyprus on the penitentiary system of Cyprus and the conditions of detention in the central prisons dated 26 May 2004
“...
Life imprisonment
79. In the Central Prisons there are currently twelve prisoners who have been sentenced to life imprisonment. The matter of the sentence of life imprisonment, in the light of the regime in force, is being discussed both by the House of Representatives and by the competent committee under the aegis of the Ministry of Justice and Public Order, which also had the initiative in promoting the subject. The central component of this process now in progress is the regulating by law of life imprisonment in a way which will give the possibility to those serving life sentences of being released once they have served a significant part of their sentence and previously received the appropriate treatment and preparation. Reservations are expressed about whether such regulating is constitutional.
80. I am of the opinion that the regulating by law of the matter is permitted by the Constitution. It is not a procedure for granting a pardon but the regulating of the serving of a sentence which in no way conflicts with the prerogative of the President of the Republic of to remit, commute or suspend a sentence by virtue of Article 53(4). In accordance with the separation of powers, the regulating by law of the matter could include, in the case of the imposition by the courts of the sentence of life imprisonment, empowering the same court to fix a minimum term for the sentence which would be served obligatorily before examination of the possibility of the conditional release of the prisoner. I am of the opinion that this minimum term of the sentence should not exceed 20–25 years. Within the framework of the proposed regulation a committee may be set up with an advisory role which, on the basis of enacted criteria and in accordance with the rehabilitation progress of each prisoner serving a life sentence and the particular circumstances of each case, could recommend conditional release.
...
Conclusions – Recommendations Suggestions
...
- In relation to the matter of prisoners serving life sentences, I consider essential the acceleration of the process of the regulating by law of the matter in a way which will fix a minimum time limit for serving the sentence, which will not exceed 20-25 years, after the expiration of which and according to the circumstances of each case the possibility of the conditional release of a prisoner serving a life sentence can be examined.
....”
E. The operation of the Regulations of 1981 and 1987 by the executive and administrative authorities and the legal validity of Regulation 93
III. INTERNATIONAL MATERIALS
A. Extracts from relevant Council of Europe texts
1. Instruments adopted by the Committee of Ministers of the Council of Europe
Article 21 – Discrimination clause
“...
3. Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to the death penalty or, where the law of the requested Party does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested Party is under the obligation to extradite if the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.”
“The Committee of Ministers,
...
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 the time served, as soon as 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;
....”
“... 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.”
“...
23. The development of measures should be promoted which reduce the actual length of the sentence served, by giving preference to individualised measures, such as early conditional release (parole), over collective measures for the management of prison overcrowding (amnesties, collective pardons).
24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community.
25. In order to promote and expand the use of parole, best conditions for offender support, assistance and supervision in the community have to be created, not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option.
26. Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders, to reduce recidivism, to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options.
...”
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that it is in the Council of Europe member states' interest to establish common principles regarding the enforcement of custodial sentences in order to strengthen international co-operation in this field;
Recognising that conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community;
Considering that it should be used in ways that are adapted to individual circumstances and consistent with the principles of justice and fairness;
...
Considering, therefore, that it is desirable to reduce the length of prison sentences as much as possible and that conditional release before the full sentence has been served is an important means to that end;
Recognising that conditional release measures require the support of political leaders, administrative officials, judges, public prosecutors, advocates and the public, who therefore need a detailed explanation as to the reasons for adapting prison sentences;
Considering that legislation and the practice of conditional release should comply with the fundamental principles of democratic states governed by the rule of law, whose primary objective is to guarantee human rights in accordance with the European Convention on Human Rights and the case-law of the organs entrusted with its application;
...
Recommends that governments of member states:
1. introduce conditional release in their legislation if it does not already provide for this measure;
2. be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to this recommendation;
3. ensure that this recommendation on conditional release and its explanatory memorandum are disseminated as widely as possible.
Appendix to Recommendation Rec(2003)22
...
II. General principles
3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.
4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.
4.b. If prison sentences are so short that conditional release is not possible, other ways of achieving these aims should be looked for.
5. When starting to serve their sentence, prisoners should know either when they become eligible for release by virtue of having served a minimum period (defined in absolute terms and/or by reference to a proportion of the sentence) and the criteria that will be applied to determine whether they will be granted release ('discretionary release system') or when they become entitled to release as of right by virtue of having served a fixed period defined in absolute terms and/or by reference to a proportion of the sentence ('mandatory release system').
6. The minimum or fixed period should not be so long that the purpose of conditional release cannot be achieved.
...
IV. Granting of conditional release
Discretionary release system
16. The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law.
17. The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period.
18. The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners' personalities and social and economic circumstances as well as the availability of resettlement programmes.
19. The lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release. Efforts should be made to find other forms of occupation. The absence of regular accommodation should not constitute a ground for refusing or postponing conditional release and in such cases temporary accommodation should be arranged.
20. The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens. It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria.
21. If the decision-making authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the decision-making authority as soon as their situation has changed to their advantage in a substantial manner.
Mandatory release system
22. The period that prisoners must serve in order to become entitled to release should be fixed by law.
...
VIII. Procedural safeguards
32. Decisions on granting, postponing or revoking conditional release, as well as on imposing or modifying conditions and measures attached to it, should be taken by authorities established by law in accordance with procedures covered by the following safeguards:
a. convicted persons should have the right to be heard in person and to be assisted according to the law;
b. the decision-making authority should give careful consideration to any elements, including statements, presented by convicted persons in support of their case;
c. convicted persons should have adequate access to their file;
d. decisions should state the underlying reasons and be notified in writing.
33. Convicted persons should be able to make a complaint to a higher independent and impartial decision-making authority established by law against the substance of the decision as well as against non-respect of the procedural guarantees.
34. Complaints procedures should also be available concerning the implementation of conditional release.
35. All complaints procedures should comply with the guarantees set out in Rules 13 to 19 of the European rules on community sanctions and measures.
36. Nothing in paragraphs 32 to 35 should be construed as limiting or derogating from any of the rights that may be guaranteed in this connection by the European Convention on Human Rights.
...”.
“Part VIII
Sentenced prisoners
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.
...”
2. Relevant extracts from reports by the Commissioner for Human Rights
(a) Report by Mr Alvaro Gil-Robles on his visit to Cyprus of 12 February 2004 – Doc. Comm DH (2004) 2
“10. Meanwhile, the Parliament has passed amendments to the Penal Code allowing prison sentences to be replaced by community service. The Minister of Justice also disclosed current discussions in the Government on the penalty of life imprisonment, with a view to making termination of imprisonment possible subject to certain conditions.”
(b) Follow-up report on Cyprus (2003-2005) “Assessment of the progress made in implementing the recommendations of the Council of Europe Commissioner for Human Rights”– Doc. Comm DH (2006) 12
“11. In her report concerning the detention conditions at the Central prison in 2004, the Ombudswoman criticised the Cypriot authorities' interpretation of life sentence as imprisonment for the rest of the convicted person's life. In most other Council of Europe member states life imprisonment does not entail imprisonment for the rest of the natural life of the convicted person. At the time of the Commissioner's first visit there were discussions in the Government about the possibility of terminating life imprisonment subject to certain conditions. A solution to this question has yet to be found, though. The Deputy Director of the Central Prison spoke of the difficulties in dealing with those currently serving life sentence, 14 men at the time of the Office's visit, both in terms of the prisoners' morale, and security issues. The usual incentives for encouraging good behaviour in prisoners were inevitably of no use in relation to those serving life sentences, and this posed security problems both for the warders and for the other prisoners.”
B. Extracts from relevant European Union texts
Article 5
“Guarantees to be given by the issuing Member State in particular cases
The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions:
...
2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure; ...”
C. Extracts from relevant International Law texts
“1. Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
....”
“1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court.
2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.
3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Arguments of those appearing before the Court
1. The applicant
2. The Government
B. The Court's assessment
1. General principles
2. Application of the above principles to the instant case
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;....”
A. Arguments of those appearing before the Court
1. The applicant
2. The Government
113. The Supreme Court's judgment in the case of Politis v. the Republic of Cyprus (see paragraph 35 above) made it clear that the Constitution had singled out certain categories of crimes, including premeditated murder, for exceptional treatment in view of their gravity and their repercussions for the well-being of society. This was irrespective of the fact that a life prisoner might, in practice, be released under the Constitution or the Prison Law of 1996. Likewise, in the case of Hadjisavvas, the Supreme Court had held that the legislature did not equate the sentence of life imprisonment to imprisonment for any time-span, either where this was imposed as a mandatory measure of punishment under section 203 (2) of the Criminal Code, or where it was imposed as a discretionary measure under section 23 of the Code.
114. For this reason the Government considered that the position in Cyprus was equivalent to that examined by the Court in the case of Wynne v. the United Kingdom (judgment of 18 July 1994, Series A no. 294 A), in which the Court held that a mandatory life sentence had been imposed automatically as the punishment for the offence of murder irrespective of the considerations pertaining to the dangerousness of the offender. The developments in English domestic law subsequent to the above case had no parallel in Cyprus where there was no equivalent of the tariff-fixing exercise.
B. The Court's assessment
1. General principles
2. Application of the above principles to the instant case
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
IV. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
A. Arguments of those appearing before the Court
1. The applicant
2. The Government
B. The Court's assessment
1. General principles
2. Application of the above principles to the instant case
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
A. Arguments of those appearing before the Court
1. The applicant
2. The Government
B. The Court's assessment
1. General principles
160. Furthermore, the Court notes that Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention. It safeguards persons who are in analogous or relevantly similar positions against discriminatory differences in treatment that have as their basis or reason a personal characteristic (“status”) by which persons or a group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, § 56 and Thlimmenos v. Greece, cited above, §§ 40-49).
2. Application of the above principles to the instant case
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
B. Costs and expenses
(a) CYP 8,075 plus value-added tax, for fees and expenses covering the work carried out by his lawyer for the preparation of the observations before the Chamber and the Grand Chamber, and for meetings and correspondence. The above amount was claimed in respect of a total of fifty-six hours' work, thirteen hours being charged at an hourly rate of CYP 125 and the remainder at an hourly rate of CYP 150;
(b) CYP 468 plus value-added tax, for out-of-pocket expenses mainly in respect of communication costs (faxes, telephone bills, mail), copying costs and the purchase of books concerning the issues raised in the case;
(c) CYP 9,150 plus value-added tax, for fees and expenses covering work carried out by his lawyer in preparation for the Grand Chamber and the attendance of his representatives at the Grand Chamber hearing; and
(d) CYP 863 plus value-added tax, for fees and expenses incurred in relation to the preparation by his lawyer, subsequent to the Grand Chamber hearing, of the reply to the Government's comments of 23 January 2007.
C. Default interest
FOR THESE REASONS, THE COURT
(a) by fifteen votes to two that there has been a violation of Article 7 of the Convention with regard to the quality of the law applicable at the material time;
(b) by sixteen votes to one that there has been no violation of this provision in so far as the applicant complains about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence;
(a) that the respondent State is to pay the applicant, within three months EUR 13,465 (thirteen thousand four hundred and sixty-five euros) in respect of costs and expenses, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 12 February 2008.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following opinions are annexed to this judgment:
(a) concurring opinion of Judge Bratza;
(b) partly dissenting opinion of Judges Tulkens, Cabral Barreto, Fura-Sandström and Spielmann;
(c) partly dissenting opinion of Judge Loucaides joined by Judge Jočienė;
(d) partly dissenting opinion of Judge Borrego Borrego.
J.-P.C.
M.O'B.
CONCURRING OPINION OF JUDGE BRATZA
I agree with the conclusions of the Grand Chamber on all aspects of the case and would only add a few remarks of my own as to the complaint under Article 3 of the Convention in view of the importance of the issue raised.
I consider that the time has come when the Court should clearly affirm that the imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3 of the Convention. What amounts to an “irreducible” sentence for this purpose has been variously explained by the Court as being a sentence for the duration of the life of the offender with no “possibility” or “hope” or “prospect” of release. As is observed in the Court's judgment, a life sentence is not “irreducible” merely because the possibility of early release is limited nor because, in practice, the sentence may be served in full.
In the present case, in common with the majority of the Court, I am unable to conclude that the applicant had no “prospect” or “hope” of release, having regard to the statutory powers which currently exist in Cyprus and which are set out in the judgment, to suspend, remit or commute a life sentence and to grant conditional release.
It is true that the exercise of these powers, including the power conditionally to release a life prisoner under the Prison Law 1996 as amended, is within the discretion of the President of the Republic, on the recommendation or with the agreement of the Attorney General, and that the exercise of the discretion is not currently subject to review by a judicial or other independent body. It is also true that there exist no procedural safeguards governing the exercise of the discretion: in particular, the discretion is not exercised according to any published criteria and there is no requirement to publish the opinion of the Attorney General or to give reasons for the refusal of an application for early release.
However, I do not consider that the absence of such independent review or procedural safeguards can be said to rob the applicant, as a life prisoner, of any “hope” or “prospect” of release, as those terms have been previously interpreted and applied by the Court. Nor, having regard to the way in which the powers have been exercised in practice in Cyprus (see § 52 of the judgment), can I accept the suggestion in the minority opinion that, in the absence of any independent review or procedural safeguards any prospect of release in the Republic is not “real and tangible” and that, consequently, the life sentence imposed on the applicant subjected him to inhuman and degrading treatment in violation of Article 3.
On the other hand, the absence of any such review and safeguards attaching to the executive discretion conditionally to release a life prisoner is not necessarily without significance in terms of the Convention. But its significance, if any, relates in my view not to Article 3 of the Convention but to Article 5 § 4, which provides that everyone who is deprived of his liberty by arrest or detention shall be entitled to have “the lawfulness of his detention... decided speedily by a court and his release ordered if the detention is not lawful.”
In its Stafford judgment (Stafford v. the United Kingdom [GC] no. 46215/99, judgment of 28 May 2002) the Court was concerned with the continued detention of a mandatory life prisoner in the United Kingdom after the expiry of the so-called “tariff” representing the punishment element of the life sentence. The Court observed that, after the expiry of the tariff, continued detention depended on elements of dangerousness and risk associated with the objectives of the original sentence for murder. In the Court's view, since these elements might change with the course of time, new issues of lawfulness arose which required determination by a body satisfying the requirements of Article 5 § 4, that is an independent body with power to order release and following a procedure containing the necessary judicial safeguards, including, for example, the possibility of an oral hearing (see §§ 87 to 90).
The system which was there being examined by the Court has, currently, no equivalent in Cyprus, in that when imposing a mandatory life sentence a trial judge does not specify a tariff representing the element of punishment and the period of a life prisoner's detention is not notionally divided into pre- and post-tariff phases. Nevertheless, even in the absence of a tariff system, it appears to me that the Court's reasoning in the Stafford case may not be without relevance to a system such as exists in Cyprus where there is an express power of conditional release which is applicable even in the case of a mandatory life prisoner. The question whether conditional release should be granted in any individual case must, in my view, principally depend on an assessment of whether the term of imprisonment already served satisfies the necessary element of punishment for the particular offence and, if so, whether the life prisoner poses a continuing danger to society. As the Stafford judgment makes clear, the determination of both questions should in principle be in the hands of an independent body, following procedures containing the necessary judicial safeguards, and not of an executive authority.
In the end, however, it is neither necessary nor appropriate finally to decide the question whether the lack of independent review of the applicant's continued detention or of adequate procedural safeguards where an application for conditional release is made would give rise to an issue under Article 5 § 4 of the Convention, since, as the Court has found, the applicants' complaint under that provision was lodged after the decision on admissibility and since the matter has not been fully argued before the Court.
JOINT PARTLY DISSENTING OPINION OF JUDGES TULKENS, CABRAL BARRETO, FURA-SANDSTRÖM AND SPIELMANN
(Translation)
We do not share the opinion of the majority as regards Article 3 of the Convention and we wish to state our reasons for this. The issue at the heart of this case is whether a life sentence or an irreducible sentence is compatible with Article 3 of the Convention. In the current context, this is a crucial issue in view of the trend observed in many European countries towards longer custodial sentences.
Under the current system in Cyprus, any prospect a life prisoner has for release rests with the President of the Republic, who has the discretionary power, subject to the agreement of the Attorney-General, to remit, commute or suspend sentences (Article 53 (4) of the Constitution). Moreover, section 14 of the Prison Law of 3 May 1996 (as amended by Law 12(I)/97) extended the President's constitutional powers to cover conditional release. Hence, although the prospect of release for prisoners serving life sentences does exist in theory, it is in practice extremely limited. It is true that the mere fact that the prospect of release is limited is not sufficient in itself for a finding of a violation of Article 3 of the Convention (see Einhorn v. France (dec.), no. 71555/01, §§ 27 and 28, ECHR 2001-XI). However, the prospect of release, even if limited, must exist de facto in concrete terms, particularly so as not to aggravate the uncertainty and distress inherent in a life sentence. By “de facto” we mean a genuine possibility of release. That was manifestly not the case in this instance.
system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, this is so provided that the system chosen does not contravene the principles set forth in the Convention (see, mutatis mutandis, Achour v. France [GC], no. 67335/01, § 51, ECHR 2006-IV). The State's power in the sphere of criminal justice is therefore not unlimited.
As the Government expressly acknowledged, the procedure currently followed in Cyprus suffers from a number of shortcomings (see paragraph 91 of the judgment) and proposals for legislative reform were expected during 2007 (see paragraph 92). In particular, there is no obligation to inform a prisoner of the Attorney-General's opinion on his application for early release or for the President to give reasons for refusing such an application. Nor is this the President's practice. In addition, there is no published procedure or criteria governing the operation of these provisions. Consequently, a life prisoner is not aware of the criteria applied or of the reasons for the refusal of his application. Lastly, a refusal to order a prisoner's early release is not amenable to judicial review. This lack of a fair, consistent and transparent procedure compounds the anguish and distress which are intrinsic in a life sentence and which, in the applicant's case, have been further aggravated by the uncertainty surrounding the practice relating to life imprisonment at the time.
In this connection, we attach weight to the safeguards concerning conditional release recommended by the Council of Europe in the various instruments referred to in the judgment (see, in particular, paragraphs 69-72). Indeed, for this reason, the present case can be distinguished from other cases in which the Court has held that the life sentences in issue were compatible with Article 3 and in which the criminal justice systems under consideration had a number of safeguards in place in respect of conditional release (see, among other authorities, Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; Sawoniuk v. the United Kingdom, (dec.), no. 63716/00, ECHR 2001-VI; Einhorn, cited above, §§ 20-21, 27 and 28; Hill v. the United Kingdom (dec.), no. 19365/02, 18 March 2003; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).
In our view, such an assessment quite simply does not appear compatible with the relevant Council of Europe instruments which the judgment takes care to cite. For more than thirty years the Committee of Ministers and the Parliamentary Assembly have repeatedly concerned themselves with matters relating to long-term sentences and have expressly called on member States to “introduce conditional release in their legislation if it does not already provide for this measure” (Committee of Ministers Recommendation (2003)22 of 23 September 2003 on conditional release). The same Recommendation further acknowledges that conditional release – which is not a form of leniency or of lighter punishment but a means of sentence implementation – “is one of the most effective and constructive means of preventing reoffending and promoting resettlement”. The European Prison Rules adopted by the Committee of Ministers on 11 January 2006 (Recommendation (2006)2), reflecting the existing European consensus in this field, also refer to the question of release of sentenced prisoners: “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” (107.2). And very recently, in a statement of 12 November 2007, the Council of Europe's Commissioner for Human Rights firmly asserted that “the use of life sentences should be questioned”. He added that if release was denied persistently until the end of a detainee's life, this would amount to de facto life imprisonment.
The same trend can be observed at European Union level. Thus, Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, adopted by the Council of the European Union on 13 June 2002, provides for the execution in any Member State of a judicial decision issued in another Member State for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence but, crucially, makes this obligation subject to certain guarantees to be provided by the State, including the following:
“if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non-execution of such penalty or measure ...” (Article 5, paragraph 2)
Lastly, the most recent developments in international criminal justice reflect a similar approach. A life sentence may be imposed on a person found guilty of the crime of genocide, crimes against humanity, war crimes or the crime of aggression only “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person” (Article 77, paragraph 1 (b), of the Rome Statute of the International Criminal Court). The Statute also specifies the conditions for obtaining reductions of sentences:
“When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced.” (Article 110)
The judgment takes care to refer to and quote extensively from the majority of these instruments, which, on a European and universal scale, have contributed and are still contributing to forming a genuine body of law on sentences and prisoners in advanced democratic societies. However, it draws no practical inferences from them, thereby creating the risk of a backward step in the protection of fundamental rights.
PARTLY DISSENTING OPINION OF JUDGE LOUCAIDES
JOINED
BY JUDGE JOČIENĖ
I am in agreement with the judgment of the Court except as to the finding that there has been a violation of Article 7 of the Convention “with regard to the quality of the law applicable at the material time”. This is the first time that the “quality of law” concept has been used in the context of Article 7 of the Convention, with reference more particularly to the second sentence of the first paragraph, which provides as follows: “Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
Although I have some difficulty in understanding how the “quality of law” fits in as a requirement of the above provision, I will proceed on the basis of the approach of the majority.
In finding the violation in question, the Court proceeded to state in the operative provisions that “there has been no violation of this provision in so far as the applicant complains about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence”.
In fact, the wording and the philosophy of Article 7 of the Convention aim at preventing abuses by the State (for example, punishing a person ex post facto for ulterior motives through an offence invented for this purpose). Thus, Article 7 intends to offer “essential safeguards against arbitrary prosecution, conviction and punishment”1. The basic scope and objective of Article 7 is to prohibit the retrospective effect of criminal legislation.
The Court found that there had been no retrospective imposition of a heavier penalty on the applicant in the circumstances of the present case. Normally one would have expected the matter to end at that point. However, the Court proceeded to state that “there is no element of retrospective imposition of a heavier penalty involved in the present case but rather a question of 'quality of law'”. In particular, the Court found that “... at the time the applicant committed the offence, the relevant Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. Accordingly, there has been a violation of Article 7 of the Convention in this respect” (see paragraph 150 of the judgment).
The basis of this finding is the fact that although the sentence imposed on the applicant by the Court was the one clearly envisaged by the Criminal Code for the relevant offence (premeditated murder), namely life
imprisonment, “when the applicant was admitted to prison to serve his sentence, he was given written notice by the prison authorities that the date set for his release was 16 July 2002” (see paragraph 16), which meant that he would serve only a sentence of twenty years. The twenty-year sentence was based on the prison regulations concerning the execution of a life sentence imposed by a court. According to the jurisprudence of the Convention institutions, there is a clear distinction between a sentence and its execution, and this distinction applies in relation to Article 7 of the Convention (see Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231).
In Grava v. Italy (no. 43522/98, § 51, 10 July 2003) the Court stated (translation from French original):
“Furthermore, in the Court's opinion the 'penalty' within the meaning of Article 7 § 1 must be regarded as the sentence of four years' imprisonment. The question of remission as envisaged in Presidential Decree no. 394/1990 concerns the execution of the sentence and not the sentence itself. Accordingly, the 'penalty' imposed cannot be said to have been heavier than the one provided for by law (see, mutatis mutandis, Hogben v. the United Kingdom, no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, pp. 231 and 242, with regard to parole).”
The Court accepted the distinction between the sentence and its execution in the present case. In this connection the Court stated:
“However, as regards the fact that as a consequence of the change in the prison law (see paragraph 58 above), the applicant, as a life prisoner, no longer has a right to have his sentence remitted, the Court notes that this matter relates to the execution of the sentence as opposed to the 'penalty' imposed on him, which remains that of life imprisonment. Although the changes in the prison legislation and in the conditions of release may have rendered the applicant's imprisonment effectively harsher, these changes cannot be construed as imposing a heavier 'penalty' than that imposed by the trial court (see Hogben and Hosein, both cited above). In this connection, the Court would reiterate that issues relating to release policies, the manner of their implementation and the reasoning behind them fall within the power of the Member States in determining their own criminal policy (see Achour, cited above, § 44). Accordingly, there has not been a violation of Article 7 of the Convention in this regard.” (see paragraph 151 of the judgment)
However, the Court also found that “[t]he distinction between the scope of a life sentence and the manner of its execution was not immediately apparent”. The relevant part of the judgment runs as follows:
“In view of the above, while the Court accepts the Government's argument that the purpose of the Regulations concerned the execution of the penalty, it is clear that, in reality, the understanding and the application of these Regulations at the material time went beyond this. The distinction between the scope of a life sentence and the manner of its execution was not immediately apparent.” (see paragraph 148)
I believe that the real reason which led the majority to find a violation of Article 7 was in actual fact the possible confusion or even the impression that formed in the applicant's mind as a result of the note given to him by the administrative authorities on his admission to prison after his conviction to the effect that, on the basis of the prison regulations, he was going to serve twenty years, even though such confusion was incompatible with the Criminal Code and the relevant judgment of the court which convicted the applicant and imposed on him a clear sentence of life imprisonment. This is also accepted by the Court in the following fundamental finding:
“At the same time, however, the Court cannot accept the applicant's argument that a heavier penalty was retroactively imposed on him since in view of the substantive provisions of the Criminal Code it cannot be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years' imprisonment.” (see paragraph 149, emphasis added)
There follows the finding of a violation, expressed as follows:
“The Court considers, therefore, that there is no element of retrospective imposition of a heavier penalty involved in the present case but rather a question of 'quality of law'. In particular, the Court finds that at the time the applicant committed the offence, the relevant Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. Accordingly, there has been a violation of Article 7 of the Convention in this respect.” (see paragraph 150)
I. Confusion or an incorrect impression regarding the sentence notwithstanding the clear provisions of the Criminal Code, even if such a problem is caused by the administrative authorities, cannot be considered to entail a violation of Article 7 because this Article is only concerned with the retrospective effect of criminal legislation (an element which was ruled out by the Court in this case) and not with any confusion or wrong impressions on the part of applicants regarding their sentence. This is not a problem falling within the scope of the Convention.
II. The “quality of law” criterion was used outside its normal context (generally it is linked with the phrase “in accordance with the law” or “prescribed by law”) as established by the jurisprudence of the Court and was, in fact, irrelevant for the purposes of the requirements of Article 7 of the Convention, in respect of which the Court had already found that that “there is no element of retrospective imposition of a heavier penalty involved in the present case” since “in view of the substantive provisions of the Criminal Code it cannot be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years' imprisonment” (see paragraphs 149 and 150 of the judgment, emphasis added). Therefore, the scope and nature of the sentence was, in accordance with the Criminal Code, sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness. If the sentence did not satisfy these requirements then there should have been a violation of the substantive provisions of Article 7. But no such violation, rightly, was found by the Court in this case.
Finally, I wish to state my reaction to the Court's following finding: “In particular, the Court finds that at the time the applicant committed the offence, the relevant Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution” (see paragraph 150 of the judgment, emphasis added).
In every system of law there is a hierarchy of legal instruments or rules (in general: Constitution, conventions, statutes, regulations, administrative acts). Therefore one cannot speak about “Cypriot law taken as a whole” as if all the sources or rules of Cypriot law were of equal legal effect. Those of inferior rank cannot be incompatible with those above them.
It is not appropriate, therefore, to refer to “Cypriot law” or, for that matter, to any country's law “taken as a whole” on the basis that all legal instruments are on an equal level and have equal effect, forming one uniform and homogeneous indivisible “law”, and then to continue to judge it “as a whole” in order to decide whether or not it was formulated with sufficient precision. Depending on the subject – for example, constitutional law or criminal law – the question whether the “law” was sufficiently precise has to be decided with reference to the provisions of the relevant specific enactments at the same level in the hierarchy of that law. One cannot combine an enactment with relevant regulations or administrative acts of any kind and rule on them regardless of whether the regulations and administrative acts are inconsistent with the enactment. Therefore, I believe it was wrong for the majority to come to their conclusion by relying on the relevant “Cypriot law taken as a whole”.
Furthermore, in this particular case what was relevant and decisive in enabling a person to discern the scope of the penalty of life imprisonment was the Criminal Code, with the help of its interpretation clauses and any relevant jurisprudence, rather than any inferior subsidiary regulation, administrative acts or practice, a fortiori if appropriate legal advice was also available. Such advice could also easily have explained that if there was any inconsistency between the Criminal Code and any regulations, the Code prevailed. The appropriate legal advice could also have explained the difference between the penalty and its execution and the fact that execution, being a matter governed by regulations, administrative acts or practice, was liable to change at any time if the penal policy of the relevant Government authorities changed.
Accordingly, assuming that before the applicant embarked on the premeditated murder of the victim and his two children, he had asked a lawyer about the sentence applicable at the time of the commission of the crime, he would have received advice to the effect that the Criminal Code punished this crime with life imprisonment, and if he had wanted to know more about the manner of the execution of this sentence in terms of prison regulations or practice, he could very well have been advised that the regulations provided for a twenty-year term for the execution of a life imprisonment sentence but that (a) these regulations might change at any time and leave whole life imprisonment as the only possible sentence and that (b) if such regulations caused any confusion as compared with the Criminal Code or “went beyond” the mere execution of the penalty, they were inconsistent with the Code and therefore legally ineffective and liable to be withdrawn at any moment.
I have had to elaborate on matters that quite honestly I believed were not very complicated. But I felt that I had to do so because of the importance of the case and its possible effects, especially as far as future cases are concerned. I find the approach of the majority to amount to an extension of Article 7 of the Convention which is not justified by either the language or the philosophy of the Article.
Finally, I must make it clear that in my opinion the violation of Article 7 of the Convention as formulated in the judgment does not affect the lawfulness of the applicant's continued detention. Reference is made in this connection to the finding of the Court in paragraph 121 of the judgment as regards Article 5 § 1 of the Convention:
“On the facts of the case, therefore, the Court is satisfied that the continuing detention of the applicant after 2 November 2002 is justified under Article 5 § 1 (a) of the Convention. There has therefore been no violation of that provision.”
For the above reasons I consider that there has been no violation of Article 7 in any respect.
PARTLY DISSENTING OPINION OF JUDGE BORREGO BORREGO
(Translation)
Account of the facts and perplexity
The First Section's decision of 11 April 2006 declaring the application admissible makes no reference to the professional nature of the killing, whereas the present judgment does (one and a half lines in paragraph 12). No further mention is made in the rest of the judgment. In other words, the fact of the contract killing first of all does not exist, and is then mentioned very briefly before disappearing immediately. I remain perplexed as to the intermittent nature of this reference to an absolutely crucial fact.
Despite the title of the chapter, “Background to the case”, paragraph 12 begins not with the murder but with the date of the guilty verdict, 9 March 1989. What is the reason for displacing a fundamental fact in this way? I do not know, but I find it interesting to read (in paragraph 14) that the judgment of 10 March 1989 passing sentence on the applicant “relied primarily” on a judgment of 5 February 1988. The applicant was sentenced to life imprisonment in 1989, and the sentencing judgment interpreted “life imprisonment” to mean imprisonment “for the remainder of the convicted
person's life”, on the basis of the 1988 judgment. The fact that the murder took place in 1987 was overlooked, yet in a State based on the rule of law the law applicable to a criminal act is the law in force at the time of the act.
No judicial precedent existed in Cyprus in 1987 for interpreting life imprisonment as entailing deprivation of liberty for the remainder of the convicted person's life.
The disappearance of this fact also leaves me perplexed. The President, together with the Attorney-General, visited a criminal in prison to ask him to identify the person who had hired him, in exchange for his early release. This personal request by the President was rebuffed by the prisoner, even though he was aware that, under Cypriot law, “any adjustment of a life sentence [was] only within the President's discretion subject to the agreement of the Attorney-General” (see paragraph 103).
How can anyone explain the absence of this crucial fact from the judgment of the Grand Chamber of the European Court of Human Rights? I would rather not go into a comparative analysis of the treatment of life prisoners in the Council of Europe's member States, but personally I am truly perplexed at the disappearance of this fact, and I feel obliged to say so.
Ivory-tower reasoning
In this judgment the Court has, to my mind, indulged in ivory-tower reasoning. It has been very far removed from the reality of a horrific contract murder; it has ignored the shock felt by Cypriot high society at the murder of one of its members, probably committed at the behest of another of its members, and the silence (whether out of criminal loyalty or fear) of the applicant, who refused to cooperate with the President of Cyprus; it has also been detached from legal, administrative, executive and judicial reality, according to which life imprisonment meant a maximum of twenty years at the material time, and from a judicial decision which dated from after the offence but was applied to the applicant by keeping him in prison until his death unless he expressed “remorse” and agreed to identify the individual who had paid him for the crime he had carried out.
In my opinion, there has been a violation of Article 7 of the Convention in the present case, since the applicant was sentenced to a penalty that did not exist at the time of the offence. There has consequently also been a violation of Article 3, Article 5 § 1 (a) and Article 14 of the Convention.
Violation of Article 7
First question: when was the crime committed? Answer: on 10 July 1987. (I invite readers to waste their time looking for the date of the crime in the judgment. This is the first time I have seen a judgment in which the date of the offence giving rise to the trial is not mentioned.)
Second question: what was the penalty for murder at the time of the offence? Answer: life imprisonment (law of 1983 – see paragraph 33 of the judgment). Prior to that law, murder carried the death penalty.
Third question: what was the definition of life imprisonment at the time of the offence? Answer: on the basis of the Prison Discipline Law (Cap. 286), the 1981 Regulations provided: “Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life, remission of the sentence shall be calculated as if the imprisonment is for twenty years” (see paragraph 40 of the judgment). Subsequently, a still more lenient provision was included in the amended Prison Regulations, which came into force on 13 March 1987, nearly four months before the murder: “'imprisonment for life' means imprisonment for twenty years” and prisoners may be granted remission of one-quarter of such a sentence (that is, five years) “on the ground of good conduct and industry” (see paragraphs 41, 42 and 43).
Fourth question: with regard to Article 7, what are we to understand by “law”? Answer: “the 'law' is the provision in force as the competent courts have interpreted it” (see paragraph 139).
Fifth question: on 10 July 1987, did any existing law or interpretation of the law in Cyprus preclude the interpretation of life imprisonment as meaning imprisonment for fifteen or twenty years? Answer: no.
Why, then, if everything appears so straightforward, is the judgment so complicated?
It even refers six times (in four paragraphs, 146 to 149) to “clarity” in various forms (noun, adjective, adverb): “it was clearly provided by the Criminal Code ...”, “it is equally clear ...”, “the Nicosia Assize Court ... clearly stated ...”, “it is clear ...”, “the first clarification ...”, “... could clearly be taken to have amounted to ...”. I do not understand why it is necessary to repeat ad nauseam something so straightforward, or why we should clarify what is clear from the outset.
The Court's ivory-tower reasoning becomes more evident in paragraph 147, where the majority seek to explain that “on 5 February 1988”, in the Yiouroukkis case, the Nicosia Assize Court interpreted life imprisonment (for the first time in Cyprus, and I have to say this as the judgment does not) as meaning “imprisonment for life”. And the judgment further asserts: “Subsequently, on 10 March 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court in the above case.” “Subsequently”? Admittedly, 1989 is subsequent to 1988. However, there is a problem: the murder was committed in 1987 and it is not possible to impose a heavier penalty than the one applicable “at the time the [act or omission] was committed” (Article 7 of the Convention).
This excess of clarity becomes dazzling and leads to a whole sequence of contradictory arguments.
Thus, in paragraph 150, the majority find a violation of Article 7 but at the same time observe that “there is no element of retrospective imposition of a heavier penalty involved in the present case”. In other words, there is a breach of the principle “no punishment without law” and yet no heavier penalty was retrospectively imposed. What a superb contradiction!
Similarly, paragraphs 151 and 152 state that the penalty was imposed on the applicant in breach of Article 7 but that the execution of the sentence does not infringe the Convention. This distinction between a penalty breaching the Convention and its implementation being in conformity with the Convention is quite magnificent. (Following the same reasoning, a death sentence could be in breach of the Convention, but since the electric chair was comfortable and the room had a pleasant atmosphere, execution of the sentence would not infringe the Convention.)
Here is yet another example of this contradiction. In order to justify the distinction I have referred to in the paragraphs above, the majority rely on three previous cases. They include Hogben and Hosein, two cases against the United Kingdom, in which another problem arises in addition to the one already discussed: the execution of life sentences in the United Kingdom is completely different from the situation in Cyprus, as indeed is acknowledged by both the Government (in paragraph 92) and the Court (in paragraphs 102 and 105). It is clear that the same judicial precedent cannot be applied to two completely different factual situations.
As regards the case of Achour v. France, while I obviously agree with the judgment in so far as it refers to the “power of the member States in determining their own criminal policy”, I consider that the majority neglect the fact that Cyprus changed its criminal policy concerning life imprisonment nine years after the events at issue, when Law 62(I)/96 was enacted on 3 May 1996, repealing Cap. 286 (see paragraphs 56 and 57 of the judgment).
“The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system” (see paragraph 137). An essential guarantee, straightforward facts, a straightforward law, and a conclusion that is also straightforward: a violation of Article 7.
Article 3
Because “any adjustment of a life sentence [is] only within the President's discretion” (see paragraph 103), and the President, who is precisely the highest State institution, visited the applicant in an (unsuccessful) attempt to request his cooperation.
If the applicant does not identify the person who hired him to carry out the crime, he will not leave prison alive. He is aware of this, as are his lawyer and the entire country. Surprisingly, it seems that the majority of the Court do not realise this, hence the reasoning concerning Article 3, which to my mind has been produced from an ivory tower. Several paragraphs, such as paragraph 106, display a lack of sensitivity that is unworthy of a court of human rights.
Since 2 November 2002 the applicant's imprisonment has amounted to torture. The definition of torture, as has been internationally accepted since 9 December 1975 (Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment), is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession ...”. Since 2 November 2002 the applicant has been in prison because he did not “collaborate” in disclosing the identity of the person who paid him to carry out a murder, who has yet to be identified by the police or the authorities. The crime was horrific, but the fact that the person behind it is still at large cannot on any account be offset or obscured by the applicant's lifelong imprisonment.
I find it hypocritical to justify the applicant's continued imprisonment by the fact that he has not displayed “significant remorse for his crimes” (see paragraph 90). It is worth noting the use of the word “remorse” rather than “confession” and the reference to the existence of “significant danger to society” as opposed to a danger of the authorities facing criticism for their inability to identify the person behind the murder, since the applicant's release would serve as a reminder of the crime and of the fact that the unidentified powerful citizen at whose behest it was committed is still at large.
My conclusion: a violation of Article 3 of the Convention since 2 November 2002.
Article 5 § 1 (a)
As the Convention provides, no one may be deprived of his liberty after being convicted in breach of the Convention. This is a straightforward matter: a violation of Article 5 § 1 (a) since 2 November 2002.
(One surprising detail is that the Government are prepared to admit that since July 2007 (see paragraph 136) the applicant's detention has been unlawful, but the majority of the Court go even further than this argument by the Government in finding it “lawful” to keep him in prison indefinitely.)
Article 14 taken together with Articles 3, 5 and 7 of the Convention
The applicant, Mr Kafkaris, a criminal, is the victim of discriminatory treatment in relation to all other criminals imprisoned in Cyprus, because he is unable or unwilling to identify the powerful citizen behind this horrific murder. Denying that fact or hypocritically trying to disguise it by speaking of “remorse” rather than a “confession” amounts to turning a blind eye to reality.
I therefore consider that there has been a violation of Article 14 taken together with Articles 3, 5 and 7 of the Convention.
Personal conclusion
11. See Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52.