CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 avril 2006

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s8A9F351B { margin-top:12pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC31874BD { margin-top:24pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD2CEF84A { margin-top:18pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB059D29 { margin-top:18pt; margin-left:48.75pt; margin-bottom:11pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sDC9967C8 { margin-top:11pt; margin-bottom:6pt; text-indent:20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA2F1D17B { margin-top:6pt; margin-left:21.25pt; margin-bottom:11pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D754984 { margin-top:11pt; margin-bottom:6pt; text-indent:20.15pt; text-align:justify } .s54FAB3C5 { margin-top:12pt; margin-left:21.25pt; margin-bottom:11pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8A115415 { margin-top:11pt; margin-left:14.2pt; margin-bottom:12pt } .s1B6AF0FA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sCED75C42 { margin-top:6pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC7411871 { margin-top:0pt; margin-left:21.25pt; margin-bottom:0pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA2F3C242 { margin-top:0pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s95F1DE7F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6E0F97D0 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7D73FE43 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8FA53EDF { margin-top:6pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s68A4A370 { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s8A7788FC { width:42.94pt; display:inline-block } .sD2F08BAA { width:176.3pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }   FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 21906/04 by Panayi KAFKARIS against Cyprus The European Court of Human Rights (First Section), sitting on 11 April 2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 3 June 2004, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court. Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Panayiotis Agapiou Panayi, alias Kafkaris, is a Cypriot national, who was born in 1946. He is currently serving a sentence of life imprisonment in Nicosia Central Prison. He is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The Cypriot Government (“the Government”) are represented by their Agent, Mr   P.   Clerides, the Attorney-General of the Republic of Cyprus. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 9 March 1989 the applicant was found guilty by the Limassol Assize Court on three counts of premeditated murder under, inter alia , section   203(1) and (2) of the Criminal Code (Cap. 154). On 10 March 1989 the Assize Court sentenced him to life imprisonment in respect of each count. The applicant had planted a bomb in a car and detonated it, causing the death of its passengers, a man and his two children, aged 11 and 13. During the hearing before the Limassol Assize Court concerning the sentencing of the applicant, the prosecution invited the court to examine the meaning of the term “life imprisonment” in the Criminal Code and in particular to clarify whether it entailed imprisonment of the convicted person for the rest of his life or just for a period of twenty years as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (“the Regulations”), adopted under section   4 of the Prison Discipline Law (Cap. 286). If the court found that the latter was applicable, then the issue of whether the sentences should be imposed consecutively or concurrently would arise and the prosecution would propose consecutive sentences. In its judgment the Limassol Assize Court relied on the findings of the Nicosia Assize Court in 1988 in the case of The Republic of Cyprus v.   Andreas Costa Aristodemou, alias Yiouroukkis (judgment of 5 February 1988, case no. 31175/87) and accordingly stated that it was not competent to examine the validity of the regulations or take into account any possible repercussions they could have on the sentence. The Assize Court found that the term “life imprisonment” used in the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In view of this, the court did not consider it necessary to examine whether the sentences it imposed would run concurrently or consecutively. On the day on which the applicant was admitted to prison, he was given written notice (F5 form, I.D. no. 7176) by the prison authorities that the date set for his release was 16 July 2002. His release was conditional upon his good conduct and industry during detention. Following the commission of a disciplinary offence, his release was postponed to 2 November 2002. The applicant appealed against his conviction but not his sentence. On 21 May 1990 the Supreme Court dismissed his appeal, upholding his conviction. On 9 October 1992, in the case of Hadjisavvas v. the Republic of Cyprus (judgment of 8 October 1992, (1992) 1 A.A.D 1134), the Supreme Court declared the Regulations unconstitutional and ultra vires . On 3 May 1996 the Prison Law of 1996 (Law 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law (Cap. 286). The applicant was not released on 2 November 2002. On 8 January 2004 the applicant submitted a habeas corpus application to the Supreme Court (first instance), challenging the lawfulness of his detention. In this context he invoked Article 3, Article 5 § 4 and Article 7 of the Convention. The Supreme Court, after considering the above-mentioned provisions, dismissed the application on 17 February 2004. In his judgment Kallis J stated, inter alia : “... 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. 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 an 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 that 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 the De Wilde, Ooms and Versyp cases (‘Vagrancy cases’), judgment of 18 June 1971, Series A no. 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 comply 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.” On 26 February 2004 the applicant lodged an appeal with the Supreme Court (appeal jurisdiction). The applicant in his grounds of appeal challenged the interpretation of the term “life imprisonment” given by the Assize Court when sentencing him in 1989, in view of the regulations applicable at the time and the notice given to him by the prison authorities on his admission to prison. He argued that the fact that he had not challenged his sentence following conviction could not be interpreted as an acceptance of the Assize Court’s interpretation of the term “life imprisonment”. He invoked, inter alia , Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention in relation to the lawfulness of his continuing detention. As regards Article 3 of the Convention, the applicant claimed that the conduct of the authorities had been contrary to this provision. In particular, ground seven of his appeal provided as follows: “The existence on the date on which the sentence was imposed on the convicted person of the regulation that defined the 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 has 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 of 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.” Concerning Article 5 § 4 of the Convention, the applicant in ground six of his appeal noted that he was not requesting judicial review of his sentence on account of a change in policy concerning the day of his release but the examination of the lawfulness of his detention, given that even the prison authorities had admitted that he should have been released on 2   November 2002. In this connection, he complained of the lack of a mechanism to examine the lawfulness of his detention. When challenging the Supreme Court’s (first instance) interpretation of Article 7 of the Convention, the applicant distinguished his case from that of Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3   March 1986, Decisions and Reports (DR) 46, p.   231), in that Hogben related to the manner of application of the sentence in view of the change in the policy of the Parole Board, whereas in his case the issue raised was that of a retrospective change of law on the ground of unconstitutionality and the increase of his sentence from twenty years to life. In this connection, he emphasised that in Cyprus there was no parole board, unlike in England. With regard to Article 14, the applicant in his grounds of appeal stated that he had been subjected to discriminatory treatment in relation to other persons sentenced to life imprisonment who had been released after serving twenty years in prison. On 20   July 2004 the Supreme Court dismissed the appeal. It stated, inter alia : “The appellant is essentially raising one issue. And his learned counsel has acknowledged that the judgment as to this [issue] will determine the conclusion ... We summarise the appellant’s positions as set out in the grounds of appeal and 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 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’, this 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 appellant’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. ... With grounds of appeal 6 and 7 the appellant also invokes Article 3, Article 5 § 4 and Article 13 of the Convention concerning subjection to inhuman or degrading treatment and the right to a remedy before a court. In the discussions, however, it was acknowledged that it was superfluous to extend to these complaints since the applicant admittedly submitted an application for an order of habeas corpus, which of course will be considered within the scope of this court’s jurisdiction. The object of this application is the lawfulness of the appellant’s detention, and its success comes with his release. We note, however, the submission of Mr   Demetriades that it could be considered for interpretative purposes that the change that has occurred to what the appellant reasonably assumed to be valid would have constituted inhuman and degrading treatment. ... The suggestion of the appellant presumes that a judicial assessment of unconstitutionality, or, more precisely, a finding 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 in issue 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 existing 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’.” B.     Relevant domestic law and practice 1.     Life sentences Under Cypriot law, the offence of premeditated murder carries a mandatory sentence of life imprisonment. Section 203(1) of the Criminal Code (Cap. 154) (as amended in 1962 by Law 2/62) provides as follows: “Any person who causes the premeditated death of another person by an unlawful act or omission is guilty of the crime of premeditated murder.” Section 203(2) of the Criminal Code (Cap. 154) (as amended in 1983 by Law 86/83) provides as follows: “Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life.” Section 29 of the Criminal Code (as amended by Laws 86/83 and 15(1)/99) provides that, with the exception of premeditated murder and the offence of treason (sections 36 and 37 of the Criminal Code), in cases where a person has been convicted of other serious offences that are punishable by a sentence of imprisonment for life or for any other period, the court trying the case has the discretion to impose a sentence of imprisonment for a shorter period or one of a pecuniary form instead which does not exceed the amount that court is empowered to impose. In Politis v. the Republic of Cyprus ((1987), 2 C.L.R. 11) the Supreme Court examined the constitutionality of sections 29 and 203 of the Criminal Code (at the time the death penalty was still in force), and held as follows: “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.” 2.     Provisions concerning the release of prisoners (a)     The Constitution Article 53 (4) of the Constitution provides as follows: “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.” Following the events of 1963, in particular the withdrawal of Turkish Cypriots from the Government and the consequent occupation of northern Cyprus by Turkish troops, the decision to remit, suspend, or commute any sentence has to be taken by the President of the Republic with the concurrence of the Attorney-General of the Republic. (b)     Prison Discipline Law (Cap. 286) The relevant sections of the Prison Discipline Law provide as follows:   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.” (c)     The Prison (General) Regulations of 1981 (Regulatory Act 18/81; declared unconstitutional on 9 October 1992) The Prison (General) Regulations of 1981, made on the basis of section   4 of the Prison Discipline Law (Cap. 286), provided as follows, in so far as relevant: Regulation 7 - Release of a prisoner “No convicted person shall be discharged from prison before the expiry of his sentence except as provided by Article 53, paragraph 4, of the Constitution of the Republic of Cyprus.” Regulation 91 “Every prisoner serving a sentence of less than two years may, where the aggregate sentence exceeds one month, be granted remission of one-fifth of the sentence on the ground of good conduct and industry, provided that no remission shall be granted which may result in the prisoner being released before one calendar month has been served.” Regulation 92 “Every prisoner serving a sentence of three years or more but less than six years may granted remission of one-third of the sentence on the ground of good conduct and industry.” Regulation 93 “Every prisoner serving a sentence of six years or more but less than nine years may be granted remission of five-twelfths of the sentence on the ground of good conduct and industry.” Regulation 94 “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) “Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life, remission shall be calculated as if the imprisonment is for twenty years.” Regulation 97 – Date of expiry of sentence “The date of the expiry 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 98 – Prisoners serving a sentence of ten years or more “Notwithstanding anything contained in these Regulations, the Director shall, on the expiry of every fourth year of the sentence of every prisoner serving a sentence of ten years or more, submit to the Minister for transmission to the Attorney-General of the Republic the name of the prisoner for consideration of his case, and shall attach thereto a report stating the prisoner’s conduct in prison and his physical and mental condition.” 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.” (d)     The Prison (General) (Amending) Regulations of 1987 (Regulatory Act   76/87, amending the Prison (General) Regulations of 1981; declared unconstitutional and ultra vires on 9 October 1992) Regulation 2 of the 1987 Regulations introduced the following definition of “imprisonment for life”: “‘imprisonment for life’ means imprisonment for twenty years.” Regulation 93, governing the remission of the sentence of prisoners serving a sentence of life imprisonment, provided as follows: “(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.” Regulation 96(c) was struck out. (e)     Domestic case-law and practice In Malachtou v. the Attorney-General of Cyprus ((1981), 1 C.L.R. 543) the Supreme Court, stated, inter alia, the following concerning subsidiary legislation: “...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 by-pass 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.” In Triftarides v. the Republic of Cyprus ((1985), judgment of 16 October 1985) the Supreme Court, when examining the manner of the remission of sentence by the President under Article 53 (4) of the Constitution with regard to a prisoner serving a ten-year sentence, stated the following: “...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.....”. In its judgment on 5 February 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis , the Nicosia Assize Court, when sentencing the convicted for premeditated murder under the Criminal Code, stated, among other things: “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 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 (1962) 2 All E.R. 246. 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 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.” On 16 October 1991, in a letter to the Prison Director, through the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis: “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 of 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 above-mentioned Regulation 2 and Regulation 93(1).” On 2 January 1992, in a letter to the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis: “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.” On 9 October 1992 the Supreme Court (first instance) in the case of Hadjisavvas v. the Republic of Cyprus (1992) ruled that the Prison (General) Regulations were unconstitutional. The accused in that case had also been convicted of premeditated murder and sentenced to life imprisonment. He had submitted a habeas corpus application to the Supreme Court when he was not released on the date that had been given to him as a release date by the prison authorities. The Supreme Court dismissed his application and reaffirmed that the term “life imprisonment” under the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In particular, the court stated as follows: “... 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 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 Governor 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 a 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.” The court thus concluded that it had not been shown that Mr Hadjisavvas should have been released on the date given or any subsequent date and consequently, the habeas corpus application was rejected. In 1993, nine life prisoners (eight serving a mandatory life sentence and one a discretionary life sentence) were released on the basis of Article   53   (4) of the Constitution. Their sentences were commuted to twenty years’ imprisonment and then remitted so as to allow their immediate release. The procedure followed for the release of these prisoners was the same. The following example concerns the case of one such prisoner. In a letter dated 28 September 1993 to the President of the Republic the Attorney-General of the Republic stated the following in relation to a life prisoner:   “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 of 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 of one-fifth 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, Demetris Hadjisavvas 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 of 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 pri