Information Note on the Court’s case-law No. 105
February 2008
Kafkaris v. Cyprus [GC] - 21906/04
Judgment 12.2.2008 [GC]
Article 3
Degrading treatment
Inhuman treatment
Mandatory life sentence with no prospect of release for good behaviour following changes to the legislation: no violation
Article 7
Article 7-1
Nullum crimen sine lege
Conflicting statutory provisions concerning meaning of a sentence of life imprisonment for the purposes of establishing eligibility for remission: violation
Change of law on remission for good behaviour in case of a life prisoner who had been informed at the outset by the trial court that his sentence meant imprisonment for life: no violation
Facts: In 1989 the applicant was found guilty on three counts of premeditated murder and given mandatory life sentences under the Criminal Code. At the time the Prison (General) Regulations, as amended, stipulated that life prisoners were eligible for remission of up to a quarter of their sentence. For that purpose, imprisonment for life was defined as meaning imprisonment for twenty years. At the hearing on sentencing in the applicant’s case, the prosecution invited the assize court to clarify whether life imprisonment in his case would entail imprisonment for life or for the period of twenty years referred to in the prison regulations, as in the latter instance it wished to apply for the sentences to run consecutively. The court held that the term meant imprisonment for the remainder of the convicted person’s life. However, on his arrival at the prison, the applicant was notified by the prison authorities that with good behaviour he would qualify for release in 2002. Subsequently, the Supreme Court declared in a separate case that the regulations governing remission of sentence were unconstitutional and ultra vires and new legislation was enacted which prevented life prisoners applying for remission for good behaviour. The applicant was not released on the date that had been notified by the prison authorities and applied to the Supreme Court for a writ of habeas corpus. However, his application and subsequent appeal were both dismissed. The only prospects of release now open to life prisoners in Cyprus are under the President’s constitutional powers to suspend, remit or commute a sentence on the recommendation of the Attorney‑General or statutory powers to order conditional release with the latter’s agreement.
Law: Article 3 – (a) Length of detention: While the prospect of release for prisoners serving life sentences in Cyprus was limited, this did not mean that life sentences in Cyprus were irreducible with no possibility of release. On the contrary, such sentences were both de jure and de facto reducible. A number of prisoners serving mandatory life sentences had been released under the President’s constitutional powers and life prisoners could benefit from the relevant provisions at any time without having to serve a minimum period of imprisonment. Accordingly, although there were shortcomings in the procedure in place and reforms were under way, the applicant could not claim that he had been deprived of any prospect of release or that his continued detention – though long – constituted inhuman or degrading treatment.
(b) Detention beyond date set by prison authorities: Although the change in the applicable legislation and consequent frustration of his expectations of release must have caused the applicant anxiety, it had not attained the level of severity required to fall within the scope of Article 3. In view of the chronology of events, the applicant could not justifiably have harboured genuine expectations that he would be released in 2002, as the assize court had been clear about the nature of the sentence it was passing and the relevant changes to domestic law had been made some six years before the release date given by the prison authorities. Any hopes the applicant may have had of early release would therefore have diminished as it became clear, with the changes in domestic law, that he would be serving the life sentence. While a life sentence without a minimum term necessarily entailed anxiety and uncertainty related to prison life, that was inherent in the nature of the sentence imposed and, considering the prospects for release under the current system, did not warrant a conclusion of inhuman and degrading treatment.
Conclusion: no violation (ten votes to seven).
Article 5 § 1 – The assize court had made it quite plain that the applicant had been sentenced to imprisonment for the remainder of his life, not for a period of twenty years. The subsequent notification by the prison authorities of a conditional release date could not, and did not, affect that sentence or render his detention beyond 2002 unlawful.
Conclusion: no violation (sixteen votes to one).
Article 7 – (a) Quality of the law: On the question of accessibility and foreseeability, the Court noted that, although at the time the applicant committed the offence the Criminal Code clearly provided that premeditated murder carried the penalty of life imprisonment, it was equally clear that in reliance upon the prison regulations both the executive and the administrative authorities had been working on the premise that that penalty was tantamount to twenty years’ imprisonment and that all prisoners, including life prisoners, were eligible for remission of sentence for good behaviour. While the Court accepted that the regulations concerned the execution of the penalty – and not the penalty itself – the distinction between the scope of a life sentence and the manner of its execution was not immediately apparent. Accordingly, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision to enable the applicant to discern, if necessary 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.
Conclusion: violation (fifteen votes to two).
(b) Retrospective application of a heavier penalty and loss of possibility of remission: The Court did not accept that a heavier penalty had been retroactively imposed on the applicant since, in view of the substantive provisions of the Criminal Code, it could not be said that at the relevant time the penalty of a life sentence clearly amounted to twenty years’ imprisonment. The fact that the applicant, as a life prisoner, no longer had a right to have his sentence remitted related to the execution of the sentence as opposed to the “penalty” imposed on him, which remained that of life imprisonment. Although the changes in prison legislation and in the conditions of release might have rendered the applicant’s imprisonment effectively harsher, they could not be construed as imposing a heavier “penalty” than that imposed by the trial court. Issues relating to release policies, the manner of their implementation and the reasoning behind them were part of criminal policy to be determined at the national level.
Conclusion: no violation (sixteen votes to one).
Article 14, in conjunction with Articles 3, 5 and 7 – (a) Alleged discrimination between the applicant and life prisoners who had been released: The life prisoners concerned had not been released on the basis of the prison regulations or their sentence but by the President of the Republic in the exercise of his discretionary constitutional powers. Furthermore, in the applicant’s case, the assize court had expressly addressed the proper interpretation of a life sentence and passed a sentence of imprisonment for the remainder of the applicant’s life. Bearing in mind the wide variety of factors taken into account in the exercise of the President’s discretionary powers, such as the nature of the offence and the public’s confidence in the criminal-justice system, it could not be said that the exercise of that discretion gave rise to an issue under Article 14.
(b) Alleged discrimination between the applicant as a life prisoner, and other prisoners: Given the nature of a life sentence, the applicant could not claim to be in an analogous or relevantly similar position to other prisoners not serving life sentences.
Conclusion: no violation (sixteen votes to one).
Article 41 – Finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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