Information Note on the Court’s case-law No. 148
January 2012
Choreftakis and Choreftaki v. Greece - 46846/08
Judgment 17.1.2012 [Section I]
Article 2
Positive obligations
Article 2-1
Life
Killing by convicted murderer following his release on licence: no violation
Facts – The applicants’ son was stabbed to death in the street in May 2008. His assailant, Z.L., who had previously been convicted of several serious offences, for one of which he was sentenced to life imprisonment combined with an accessory penalty of ten years and nine months, had been released on licence. In January 2006 an Assize Court examined Z.L.’s application to have his sentences combined, and fixed the total sentence remaining to be served at about twenty-six years. In August 2007 the prison director submitted an application for Z.L.’s release on licence. The Indictment Division of the Criminal Court rejected the application and Z.L. appealed. In January 2008 the Indictment Division of the Court of Appeal set the earlier decision aside and granted Z.L. early release.
Law – Article 2: The applicants’ son had died a tragic death following an unfortunate chain of chance events. Nothing that had occurred prior to the fateful attack could have led the authorities to believe that the victim required special protection or that his life was under any real and immediate threat from the criminal behaviour of others. This case brought to mind the Mastromatteo and Maiorano and Others cases* in so far as it concerned the obligation to protect society in general against the possible threat from people serving or having served prison sentences for serious crimes.
In Greece, to qualify for release on licence a prisoner had to have served a minimum term of imprisonment, and when that condition was satisfied the law provided for “release on licence in all cases, save where it is judged for specific reasons that the prisoner’s behaviour in detention makes it strictly necessary for him to remain in prison in order to prevent him from committing other offences”. In the instant case the Indictments Chamber of the Court of Appeal had applied the relevant law and verified that the requisite legal conditions had been met. That being so, it was clear that there had been no irregularity in the judicial proceedings that had led to the assailant’s release.
It remained to be seen whether the early release system in Greece comprised sufficient measures to protect society in general from the possible actions of people serving or having served prison sentences for violent crimes. In view of the wide variety of approaches to conditional release in the member States, a wide margin of appreciation was left to them in this matter. Even more so in cases like the present one, where the Court was required retrospectively to assess the compatibility with Article 2 of a conditional-release system set in place by the respondent State, after a detainee released on licence had committed a serious crime. As there was no direct causal link between the law applied in this case and the murder of the applicants’ son, the Court decided to focus its attention on the extent to which the Greek system made it possible in practice for the appropriate court to decide whether to grant early release while fully taking into account the relevant legal provisions. It was pointed out that in order for the State’s responsibility to be engaged under the Convention, it had to be established that the death was the result of the failure of the national authorities, including the legislature, to do everything that could reasonably be expected of them to prevent the materialisation of a clear and immediate threat to life of which they were, or should have been, aware.
Greece was one of the few States Parties to the Convention where conditional release was the rule and was granted almost automatically.
The detainee’s conduct during his incarceration was the only criterion on which the competent court could base a decision – in exceptional cases – not to grant conditional release. Furthermore, the Prison Code considerably limited the available time-frame for assessing the detainee’s “good conduct”. In particular, disciplinary sanctions were deleted from the prisoner’s record between six months and two years after the event, and were therefore not taken into consideration in the decision on conditional release. In the present case, however, there were other factors that could be taken into account in assessing Z.L.’s conduct, including the report prepared by the prison director, which indicated that his behaviour after 2004 had been “very good”, or his behaviour during any prison leave he might have been granted. In this case, therefore, the Greek system could not be considered to have imposed any “automatic” response on the court that had prevented it from assessing Z.L.’s conduct while in prison.
It would have been preferable had the law permitted the Indictments Chamber to take into account the disciplinary sanctions imposed on Z.L. prior to 2004, in so far as some of them concerned serious incidents; this would have given it a fuller picture of his behaviour in prison. However, this strict legislative framework circumscribing the court’s appraisal of the detainee’s “good conduct” was not necessarily a flaw in the legislation that amounted to a failure on the part of the State to honour its procedural obligations under Article 2. When the Court examined cases like this one, its assessment of the conditional-release system necessarily meant examining the situation at issue after the event. In this case, when examining the compatibility of the conditional-release system in Greece with Article 2, the Court could not ignore the tragic event that followed Z.L.’s early release. However, the fact that there was no direct and solid causal link between the functioning of the Greek justice system and the applicants’ son’s murder meant that it would have required a clear failure of the law applied in this case to engage the liability of the respondent State under Article 2. There had been no such failure in this case; as mentioned above, the law applied had enabled the judge to take different factors into account when evaluating Z.L.’s behaviour, such as the report dawn up by the prison director.
The conditional-release system in Greece, as applied in the present case, had therefore not upset the fair balance that had to be struck between the aims of social reintegration and preventing recidivism. Rather, it had made sufficient provision for the protection of society from the actions of people convicted of violent criminal offences. Accordingly, Z.L.’s conditional release could not be considered as a failure by the Greek authorities in their duty under Article 2 to protect the life of the applicants’ son.
Conclusion: no violation (four votes to three).
* Mastromatteo v. Italy [GC], no. 37703/97, 24 October 2002, Information Note no. 46; and Maiorano and Others v. Italy, no. 28634/06, 15 December 2009, Information Note no. 125.
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This summary by the Registry does not bind the Court.
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