CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 5 avril 2011

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s36109428 { width:18.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sE950BED4 { width:22.54pt; display:inline-block } .s24D84E5E { width:158.76pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 4413/06 by Tibor TÖRKÖLY against Hungary The European Court of Human Rights (Second Section), sitting on 5   April 2011 as a Chamber composed of:   Françoise Tulkens, President,   Danutė Jočienė,   David Thór Björgvinsson,   Dragoljub Popović,   András Sajó,   Işıl Karakaş,   Guido Raimondi, judges, and Stanley Naismith, Section Registrar, Having regard to the above application lodged on 18 January 2006, 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 Tibor Törköly, is a Hungarian national who was born in 1969 and is detained at Szeged Prison. He was represented before the Court by Mr A. Cech, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 5 December 2004 the applicant was arrested on a charge of murder. On 11 January 2005 the Bács-Kiskun County Regional Court convicted the applicant, a multiple recidivist, of attempted grave bodily assault and of aggravated murder committed with special cruelty. The court established that the applicant had first severely beaten up his common-law wife. Three days later, while they were collecting firewood in a forest, he had again beaten and kicked her, tied her up, hanged her on a tree and then cut her loose, wrapped her face and head with adhesive tape, and finally killed her with a minimum of nine stabs with a knife. The crime was committed out of jealousy. The court imposed a life sentence on the applicant, with eligibility for release on parole after 40 years, i.e. on 25 July 2044. The period spent in pre-trial detention after 5 December 2004 was credited towards the prison term. When imposing the sentence, the court took into account the applicant’s previous convictions for violent crimes, as well as the fact that his victim was his common-law wife and the mother of their two minor children. On appeal, on 16 June 2005 the Szeged Court of Appeal upheld this sentence at a public hearing. This judgment was served on 30 June 2005. On 5 September 2005 the Supreme Court dismissed, without an examination on the merits, the applicant’s petition for review as inadmissible, since it was incompatible ratione materiae with the relevant provisions of the Code of Criminal Procedure. On 15 December 2005 his request for re-trial was dismissed. B.     Relevant domestic law The Constitution provides as follows: Article 30/A “(1) The President of the Republic shall ... exercise the right to grant individual pardon. (2) The counter-signature of the Prime Minister or the responsible Minister is required for all the measures ... of the President of the Republic listed in paragraph   (1) ...” Act No. IV of 1978 on the Criminal Code provides: Section 66 “The enforcement of the punishment is precluded by ... c) a pardon ...” Act No. XIX of 1998 on the Code of Criminal Procedure provides as relevant: Section 597 “(1) Motions for pardon ... in respect of suppressing or reducing sanctions not yet executed ... shall be submitted – ex officio or on request – to the President of the Republic – by the minister in charge of justice. (2) [Such a r]equest may be introduced by the defendant, his/her lawyer or ... relative. ... (4) A [pardon] request ... concerning a sanction not yet executed must be introduced to the first-instance trial court. (5) In the course of the pardon procedure, the court shall obtain ... such personal particulars of the defendant as necessary for the decision on pardon.” Section 598 “(1) The court ... shall forward the case documents and the request to the minister in charge of justice. ... (3) The minister in charge of justice shall forward the request to the President of the Republic even if s/he does not endorse it.” COMPLAINTS The applicant complained under Article 6 § 1 of the Convention that he had been erroneously convicted. Moreover, without relying on any particular provision of the Convention, he complained that the life sentence imposed on him without any eligibility for release on parole before he was 75 years of age amounted to inhuman punishment. THE LAW 1.     Relying on Article 6 § 1 of the Convention, the applicant complained about his conviction. The Court observes that the applicant’s final conviction was given by the Szeged Court of Appeal on 16 June 2005. However, he introduced the application only on 18 January 2006, that is, outside the six-month time-limit prescribed in Article 35 § 1 of the Convention. His incompatible petition for review and unsuccessful request for re-trial do not qualify as an effective remedy or influence the running of the six-month time-limit. It follows that this part of the application must be rejected, pursuant to Article   35 §§ 1 and 4 of the Convention. 2.     The applicant also complained that his life sentence with the earliest release on parole after forty years amounted to inhuman and degrading treatment. The Court considers that this complaint falls to be examined under Article 3 of the Convention which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The Government submitted at the outset that this complaint was introduced out of time, that is, more than six months after the applicant’s final conviction. On the merits of case, they submitted that the applicant’s sentence was reducible after forty years as per his judgment and even earlier by virtue of an intervening act of clemency; this was so irrespective of his age, life expectancy or the length of time until he became eligible for parole. In their view, the latter period could not be regarded as disproportionate in the circumstances, given the seriousness of the crime which the applicant had been convicted of. In sum, they submitted that the applicant’s prison term was reducible de jure and de facto. The applicant submitted that the alleged violation was continuous in nature and hence the six-month rule was inapplicable. As to the merits, he argued that his life expectancy based on Hungarian statistics had been about 35 years when he had been convicted, that is, inferior to the forty-year period up to his eligibility for parole. Therefore, the former opportunity for a reduction of his sentence was virtually irrelevant. Moreover, a presidential pardon – whose rate of success was between two and three per cent in the material period according to judicial statistics – could not be taken into consideration, essentially on account of the discretionary character of clemency measures. The Court considers that it is not necessary to examine the Government’s objection based on the six-month rule, because the application is in any event inadmissible for the following reasons. The Court reiterates that imposing a life sentence on an adult offender is not, in itself, prohibited by Article 3 or any other provision of the Convention or incompatible therewith (see Sawoniuk v. the United Kingdom (dec.), no.   63716/00, ECHR 2001-VI). Nevertheless, the imposition of an irreducible life sentence on an adult, depriving him of any hope of release, might raise an issue under Article 3 (see, among other authorities, Nivette v.   France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no.   71555/01, ECHR 2001-XI; and Stanford v.   the   United Kingdom (dec.), no. 73299/01, 12 December 2002). However, a life sentence does not become “irreducible” by the mere fact that in practice it may be served in full. It is enough for the purposes of Article 3 that a life sentence is de jure and de facto reducible (see Kafkaris v. Cyprus [GC], no.   21906/04, § 98, ECHR 2008-...). Thus, where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, notwithstanding the non-judicial character of the procedures to be followed, this will be sufficient to satisfy Article 3 (see Iorgov v. Bulgaria (no. 2) , no. 36295/02, § 50, 2   September   2010). Consequently, the Court must seek to ascertain whether, in spite of the fact that the applicant is serving a life sentence with the earliest date of release on parole being in forty years, he may be considered to have any chance of release. The Court observes that the applicant will become eligible for conditional release in 2044, that is, when he will be 75 years old. Notwithstanding his representations to the effect that his life expectancy in statistical terms may be shorter than that, the Court is satisfied that the judgment imposed on the applicant thus guarantees a distant but real possibility for his release. Moreover, the Court notes that the applicant may be granted presidential clemency even earlier (see above in Relevant domestic law). It is well aware that this is a discretionary power rather than one exercised by a judicial body. However, it reiterates that the main question from the standpoint of Article 3 is whether there is any hope at all for the applicant to be released (see Iorgov , cited above, §   53). For the Court, it is noteworthy in this connection that a defendant is free to introduce a request for pardon at any time after his conviction – and that the applicant has to date served only a few years of his sentence. Moreover, it observes that the authorities are under the obligation to collect such particulars of the defendant as necessary for the decision on pardon, that the minister decides on the endorsement of the request in the possession of those particulars, and that the request must be submitted to the President of the Republic even if the minister decides not to endorse it. In sum, for the Court, nothing indicates that requests for pardon are not duly or individually considered. The Court is therefore satisfied that the possibility of the applicant’s eventual release de jure exists in the domestic law and the penalty concerned is also reducible de facto . In conclusion, applying essentially the criteria set forth in its Kafkaris judgment cited above, the Court considers that it has not been established that the applicant has been deprived of all hope of being released from prison one day. It therefore finds that there is no appearance of a violation of Article   3 of the Convention on that account. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected, pursuant to Article 35 § 4 of the Convention. For these reasons, the Court by a majority Declares the application inadmissible.   Stanley Naismith   Françoise Tulkens   Registrar   President