CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 24 janvier 2017

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margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s67F06EFC { font-family:Arial; font-size:10pt; color:#000000 } .s2CE7C1B9 { font-family:Arial; font-size:10pt; font-style:italic }     GRAND CHAMBER             CASE OF KHAMTOKHU AND AKSENCHIK v. RUSSIA   (Applications nos. 60367/08 and 961/11)                               JUDGMENT     STRASBOURG   24 January 2017       This judgment is final but it may be subject to editorial revision. In the case of Khamtokhu and Aksenchik v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   András Sajó,   Işıl Karakaş,   Luis López Guerra,   Mirjana Lazarova Trajkovska,   Angelika Nußberger,   Khanlar Hajiyev,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Erik Møse,   André Potocki,   Ksenija Turković,   Dmitry Dedov,   Branko Lubarda,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Gabriele Kucsko-Stadlmayer, judges,   and Roderick Liddell, Registrar, Having deliberated in private on 20 April and 17 October 2016, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in two applications (nos. 60367/08 and 961/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aslan Bachmizovich Khamtokhu and Mr Artyom Aleksandrovich Aksenchik (“the applicants”), on 22 October 2008 and 11   February 2011 respectively. 2.     The applicants were represented by Ms N. Yermolayeva, Ms   A.   Maralyan, Ms E. Davidyan and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3.     The applicants, who had been sentenced to life imprisonment, complained that they were subjected to discriminatory treatment vis-à-vis certain other categories of convicted offenders who were exempt from life imprisonment by operation of law. 4.     The applications were allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). On 27 September 2011 a Chamber of that Section decided to give notice of the above complaints to the Government and declared the remainder of the applications inadmissible. On 13 May 2014 a Chamber of that Section, composed of Isabelle Berro ‑ Lefèvre, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, and Dmitry Dedov, judges, and also of Søren Nielsen, Section Registrar, decided to join the proceedings in the applications (Rule 42 § 1) and declared the case partly admissible. On 1   December 2015 a Chamber of the former First Section, composed of András Sajó, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, and Dmitry Dedov, judges, and also of André   Wampach, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, André Potocki, substitute judge, replaced Julia Laffranque, who was unable to take part in the further consideration of the case (Rule 24 § 3). 6.     The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from Equal Rights Trust, a non-governmental organisation based in London, the United Kingdom, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 20 April 2016 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mr   G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, Ms   O. Ocheretyanaya ,   Adviser ; (b)     for the applicants Ms   A. Maralyan , Ms   N. Yermolayeva, Ms   E . Davidyan,   Counsel , Ms   K. Moskalenko ,   Adviser .   The Court heard addresses by Ms Maralyan, Ms Yermolayeva, Ms   Davidyan and Mr Matyushkin, and their answers to questions put by the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicants, Mr Khamtokhu and Mr Aksenchik, were born in 1970 and 1985 respectively. They are currently serving life sentences in the Yamalo-Nenetskiy Region of Russia. A.     Criminal proceedings against the first applicant 9.     On 14   December 2000 the Supreme Court of the Adygea Republic found the first applicant guilty of multiple offences, including escape from prison, attempted murder of police officers and State officials, and illegal possession of firearms, and sentenced him to life imprisonment. 10.     On 19   October 2001 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. 11.     On 26   March 2008 the Presidium of the Supreme Court of the Russian Federation quashed the appeal judgment of 19   October 2001 by way of supervisory review and remitted the matter for fresh consideration. 12.     On 30   June 2008 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. The court reclassified some of the charges against him but the life sentence remained unchanged. B.     Criminal proceedings against the second applicant 13.     On 28   April 2010 the Tomsk Regional Court found the second applicant guilty on three counts of murder and sentenced him to life imprisonment. 14.     On 12   August 2010 the Supreme Court of the Russian Federation upheld that conviction on appeal. II.     RELEVANT DOMESTIC LAW A.     Criminal law 15.     The 1960 Criminal Code of the Russian Soviet Federative Socialist Republic (RSFSR) provided that capital punishment could not be imposed on anyone below the age of 18 or on a woman who was pregnant either at the time of the offence or at the time of judgment (Article   23). The alternative to the death sentence was fifteen years’ imprisonment. There was no provision for life imprisonment. On 29 April 1993 the RSFSR Criminal Code was updated and the exemption from capital punishment in Article 23 was extended to all women, and to young offenders and offenders aged 65 or over. The Criminal Code of the Russian Federation, which has replaced the RSFSR Criminal Code since 1 January 1997, adopted a more detailed inventory of penalties. It provides for up to twenty years’ imprisonment (Article 56), life imprisonment (Article 57) and capital punishment (Article   59). Women, young offenders below the age of 18 and offenders aged 65 or over are exempted, in identical terms, from both life imprisonment and capital punishment (Articles 57 § 2 and 59 § 2). By way of a pardon, capital punishment can be commuted to life imprisonment or twenty-five years’ imprisonment (Article 59 § 3). In 2009 the Constitutional Court imposed an indefinite moratorium on capital punishment in Russia (for the text of the decision, see A.L. (X.W.) v. Russia , no. 44095/14, §   51, 29   October 2015). 16 .     Article 57 (“Life imprisonment”) reads as follows: “1.     Life imprisonment may be imposed for particularly serious offences against life and ... public safety. 2.     Life imprisonment may not be imposed on women, persons who were under eighteen years of age at the time they committed the offence or men who were sixty-five or older at the time the conviction was pronounced.” 17.     A court may pronounce the offender sentenced to life imprisonment eligible for early release after the first twenty-five years provided that he has fully abided by the prison regulations throughout the previous three years (Article 79 § 5). B.     Case-law of the Constitutional Court 18.     The Constitutional Court has consistently declared inadmissible complaints about the alleged incompatibility of Article   57 § 2 of the Criminal Code with the constitutional protection against discrimination. The most recent reiteration of its settled position can be found in its judgment of 25   February 2016 and reads as follows: “A ban on imposing life sentences or capital punishment on certain categories of offenders cannot be seen as a breach of the principle of equality before the law and the courts (Article 19 of the Constitution) or a breach of Russia’s international legal commitments. It is justified by the need to take into account the age and social and physiological characteristics of such individuals on the basis of the principles of justice and humanity in the criminal law with a view to attaining, in a more comprehensive and efficient way, the objectives of criminal punishment in a democratic State based on the rule of law. According to the case-law of the Constitutional Court, the ban does not prevent [courts] from meting out just punishment to other categories of offenders which corresponds to the gravity of the crime committed, the circumstances of its commission and the personality of the offender; it does not undermine their rights and, accordingly, is not discriminatory against them (decisions no. 638-O-O of 21 October 2008, no. 898-O-O of 23   June 2009, no. 1382-O-O of 19 October 2010, no. 1925-O of 18 October 2012, and no.   1428-O of 24 September 2013).” III.     COMPARATIVE LAW 19 .     According to the information available to the Court, there are currently nine member States of the Council of Europe where life imprisonment does not exist: Andorra, Bosnia-Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia and Spain. In the rest of the world, many Central and South American countries (Bolivia, Colombia, Costa Rica, Dominican Republic, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, El Salvador, Uruguay and Venezuela) have abolished life imprisonment, with some exceptions during wartime. 20 .     A comparative survey of the sentencing guidelines in thirty-seven member States of the Council of Europe in which offenders may be sentenced to life imprisonment reveals that all of them establish a special sentencing regime for juveniles or young adults, whether by way of including special provisions in the Criminal Code or enacting specific legislation dealing with juvenile delinquents. Life imprisonment of offenders below the age of 18 years is prohibited in thirty-two member States; Austria, Liechtenstein, the former   Yugoslav Republic of Macedonia and Sweden extend the prohibition to young adults up to the age of 21, and Hungary includes those who had not yet turned 20 at the time the offence was committed. 21 .     As regards older offenders, four member States, not including Russia, establish a specific sentencing regime: an offender who has reached retirement age (Azerbaijan), the age of 60 (Georgia) or 65 (Romania and Ukraine) cannot be sentenced to life imprisonment. In Romanian law, the maximum sentence in such a case may not exceed thirty years’ imprisonment. 22 .     As regards gender-related distinctions, the criminal law of Albania, Azerbaijan and Moldova – in addition to Russia – imposes a blanket ban on life imprisonment for women. Armenian and Ukrainian criminal law prohibits courts from imposing life sentences on women who were pregnant at the time of the offence or at the time of sentencing, and a similar provision can be found in the Bulgarian Criminal Code, which exempts pregnant female offenders from life imprisonment without parole. IV.     RELEVANT INTERNATIONAL INSTRUMENTS A.     Juvenile offenders 23 .     Article 6 § 5 of the International Covenant on Civil and Political Rights provides: “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” 24 .     Article 37 (a) of the Convention on the Rights of the Child provides: “States Parties shall ensure that: (a)     No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age ...” 25 .     The Committee on the Rights of the Child, in General comment No.   10 (2007), recommended: “Given the likelihood that a life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties to abolish all forms of life imprisonment for offences committed by persons under the age of 18.” 26 .     The United Nations General Assembly adopted Resolution A/RES/67/166 on Human Rights in the Administration of Justice on 20   December 2012, urging States – “... to ensure that, under their legislation and practice, neither capital punishment nor life imprisonment without the possibility of release ... is imposed for offences committed by persons under 18 years of age, and ... to consider repealing all other forms of life imprisonment for offences committed by persons under 18 years of age.” B.     Protection of women and motherhood 27.     For the text of Article 6 § 5 of the International Covenant on Civil and Political Rights, see paragraph 23 above. 28.     The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) reads in the relevant parts: Article 4 “1.     Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved. 2.     Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.” 29.     The UN Rules for the Treatment of Women Prisoners and Non-custodial measures for Women Offenders (the Bangkok Rules): Preamble “Considering that women prisoners belong to one of the vulnerable groups that have specific needs and requirements ...” Rule 5 “The accommodation of women prisoners shall have facilities and materials required to meet women’s specific hygiene needs ... in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating.” Rule 10 “1.     Gender-specific health-care services at least equivalent to those available in the community shall be provided to women prisoners.” Rule 31 “Clear policies and regulations on the conduct of prison staff aimed at providing maximum protection for women prisoners from any gender-based physical or verbal violence, abuse and sexual harassment shall be developed and implemented.” Rule 48 “1.     Pregnant or breastfeeding women prisoners shall receive advice on their health and diet ...” 30 .     On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No.   R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules read in particular as follows: “13.     These rules shall be applied impartially, 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. ... 34.3.     Prisoners shall be allowed to give birth outside prison, but where a child is born in prison the authorities shall provide all necessary support and facilities.” 31.     The European Parliament’s Resolution of 13 March 2008 on the particular situation of women in prison recommends: “14.     (...) that the imprisonment of pregnant women and mothers with young children should only be considered as a last resort and that, in this extreme case, they should be entitled to a more spacious cell, and an individual cell if possible, and should be given particular attention, especially in terms of diet and hygiene; considers, furthermore, that pregnant women should receive antenatal and postnatal care and parenting classes of a standard equivalent to those provided outside the prison environment.” THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 32.     The applicants complained that the fact that they had been sentenced to life imprisonment exposed them to discriminatory treatment on account of their sex and age, in breach of Article   14 of the Convention, taken together with Article   5. The relevant parts of these provisions read: Article   5 “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 ...” Article   14 “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.     Submissions by the parties 1.     The applicants 33.     The applicants submitted that the different and less favourable treatment under Article 57 of the Criminal Code of the group to which they belonged – men aged 18 to 65, as opposed to all women and to men aged under 18 or over 65 – with respect to life sentences constituted unjustified difference in treatment on the basis of gender and age. The applicants pointed out that they were not seeking universal application of life sentences to all offenders, including women, and men aged under 18 or over 65. Rather, they claimed that, having decided that imprisonment for life was unjust and inhuman with respect to those groups, the Russian authorities should likewise refrain from subjecting men aged 18 to 65 to life imprisonment. 34.     As regards the gender-related difference in treatment, the applicants considered that the difference in the sentencing of male and female offenders had no reasonable or objective justification. It was the product of an outdated and traditionalist view of the social role of women and was not founded on any scientific evidence, statistical data or generally accepted legal principles. Women’s allegedly special role in society, which related, above all, to their reproductive function and childrearing, did not amount to a sufficient ground for treating female offenders more favourably than male ones. Irrespective of the biological differences between men and women, both sexes participated in caring for, protecting and supporting their children. National laws did not differentiate between the rights and obligations of a mother and a father in a child’s upbringing. The Court had found that gender stereotypes, such as the perception of women as primary child-carers could not, in themselves, be considered to amount to sufficient justification for a difference in treatment (here the applicants referred to Konstantin Markin v. Russia [GC], no. 30078/06, §   143, ECHR 2012 (extracts)). In any event, the difference in sentencing would not achieve the purported objective of the protection of motherhood because a difference between a thirty-year prison sentence and a life sentence could not be decisive for a woman’s reproductive ability if, in either case, she was bound to spend the childbearing years of her life in prison. 35.     The applicants saw little merit in the Government’s assertion that women were more psychologically vulnerable than men and were affected to a greater degree by the hardships of detention. In the absence of any scientific basis for that generalisation, this was yet another stereotype: that of “male toughness”. The applicants did not dispute the fact that imprisonment was an ordeal, but it was an ordeal for both men and women, and both sexes included individuals of varying degrees of vulnerability. 36.     The applicants acknowledged that the physiological characteristics of certain categories of women – and at specific times, for example during pregnancy, breastfeeding or childrearing – could constitute a reasonable and objective justification for a difference of treatment. However, Article 57 of the Criminal Code assumed that there were universal physiological characteristics that differentiated male and female offenders for all purposes and at all times. The excessive breadth of the Government’s differentiation became striking in comparison with generally recognised norms in which only specific factors relating to women were taken into consideration. Thus, Article 6 § 5 of the International Covenant on Civil and Political Rights (ICCPR) prohibited capital punishment of pregnant women because of considerations relating to their unborn child. In the same way, Article   76   §   3 of the First Protocol Additional to the 1949 Geneva Conventions (Relating to the Protection of Victims of International Armed Conflict) sought to prohibit the pronouncement and execution of the death penalty on women who were pregnant or had dependent infants. 37.     The applicants asserted that Article 57 of the Criminal Code, which laid down a permanent and immutable distinction between offenders on the basis of their sex, even if every other aspect of their circumstances was identical, did not pursue any legitimate aim. By making this distinction as a matter of law, rather than, for example, allowing the judge to take account of gender as an element in exercising sentencing discretion, a relationship of proportionality between the means employed and the aim sought to be realised was lacking. To the extent that particular circumstances relating to gender could legitimately be taken into account, there was no need for institutionalised gender-based distinctions, since the courts could consider personal circumstances, including family status and child-support needs and obligations, in the framework of the general principles of sentencing policy under Russian law when deciding on the appropriate punishment for both men and women. 38.     As regards age-related differences in sentencing, the applicants acknowledged the existence of international human rights standards which prohibited imposing the most severe criminal sanctions on young offenders (they referred in particular to Article 6 § 5 of the ICCPR and Article   37(a) of the Convention on the Rights of the Child). Of those, Article   37(a) was the only provision directly applicable to the case in so far as it prohibited sentencing juvenile offenders to life imprisonment without a right to release on parole; however, it was still not relevant in the Russian context where any category of convicted prisoners sentenced to life imprisonment, regardless of their age, could be released on parole after twenty-five years. 39.     Age-related differences in sentencing could be necessary if persons aged 65 or over were to be treated as a vulnerable social group who had an underdeveloped or weakened capacity to control their conduct or foresee the consequences of their actions. Yet there were no scientific studies demonstrating diminished responsibility in all persons aged over 65. If all persons over 65 were to be considered irresponsible, the fact that such individuals were eligible under Russian law to hold important public offices, including that of judges of the Constitutional Court up to the age of 75, undermined the validity of the age-related generalisation. Furthermore, taking into account that the average life expectancy was 65 years for Russian men and that those statistics did not reflect the poor conditions of detention in Russian prison facilities which must further reduce life expectancy for inmates, the effect of a life sentence on a forty-year-old offender was hardly any different from that on a sixty-five-year-old: both had illusory chances of early release on parole. Thus, the age-limit established at 65 years was arbitrary, especially taking into account that the retirement age was set at 55 years for women and 60 years for men. 40.     On the issue of age differences, the applicants agreed, lastly, that juvenile offenders belonged to a socially and psychologically vulnerable group and were in need of special protective measures dictated by humane considerations. This did not mean, however, that other age groups should be discriminated against and deprived of such protection. For older offenders, the age could in certain cases be seen as a mitigating circumstance – as allowed by Article 61 § 2 of the Criminal Code – and persons who developed serious illnesses after committing an offence could be exempted from punishment (Article 81 § 2 of the Criminal Code). 41 .     In conclusion, the applicants pointed out that there was an emerging international trend towards the abolition of life imprisonment, observing that some twenty-five countries worldwide did not have recourse to life imprisonment for any category of offenders. In their view, even assuming that a life sentence could be the appropriate form of punishment in certain circumstances, it should not be imposed according to gender, age or age-group characteristics but solely in relation to the particular circumstances of the offence and the personality of the offender. The applicants submitted that a high degree of individualisation of punishment should be part of contemporary sentencing policy and that individualisation should be used as a general principle instead of institutionalised gender- and age-related discrimination. 2.     The Government 42 .     The Government claimed that the applicants were not victims of any violation of the Convention since their convictions had been “lawful” within the meaning of Article   5 §   1   (a). In their view, what the applicants sought was a change in the Russian criminal law which would allow others, including women, young offenders and offenders aged 65 or over, to be given harsher sentences, while the applicants’ personal situation would remain the same. The Government pointed out that a finding of a violation of Article 14 would not constitute a ground for reviewing individual sentences or for completely abolishing life imprisonment in Russia. 43.     The Government submitted that a review of the Court’s case-law considering the issue of life imprisonment from the standpoint of Article   3 of the Convention demonstrated the compatibility of Russian law – which provided for the right to release on parole also in cases where life imprisonment had been imposed – with the Convention. Life imprisonment could be imposed in a majority of States worldwide and, according to the Government, only six member States of the Council of Europe had abolished it. In Russia life imprisonment was a penalty for the most serious crimes but was always accompanied by alternative penalties and never applied automatically. The Government emphasised that the Contracting States should be allowed a margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes (they referred to László Magyar v. Hungary , no. 73593/10, § 46, 20   May 2014). 44 .     Referring to the consistent case-law of the Russian Constitutional Court, the Government submitted that, inasmuch as Article 57 of the Criminal Code provided that female offenders and offenders below the age of 18 or over the age of 65 could not be sentenced to life imprisonment, it was based on the principles of justice and humanity which required that the sentencing policy take into account the age and “physiological characteristics” of various categories of offenders. The restrictions concerning those categories of offenders did not affect the sentencing of other offenders, in respect of whom the sentences reflected the nature of the crime and the danger posed to the public by it, the circumstances in which it was committed, and the personality of the offender. In the Government’s view, the case-law of the Constitutional Court reflected the requirements of international law concerning a differentiated approach to punishment according to the offender’s sex and age. They referred, as regards juvenile offenders, to Article 37 of the Convention on the Rights of the Child, the position of the Committee on the Rights of the Child and that of the Human Rights Council, the UN General Assembly’s Resolution of 9 November 2012 [1] and other international instruments, as well as to the fact that a vast majority of member States had abolished life imprisonment for children. As to offenders aged 65 or over, the Government pointed out that life imprisonment of 65-year-olds would make them eligible for release on parole only at the age of 90, which was an illusory possibility having regard to life expectancy. 45.     The Government further pointed out that international law provided for a more humane approach towards women, while the UN Convention on the Elimination of All Forms of Discrimination against Women stated that special measures aimed at protecting maternity were not to be considered discriminatory (CEDAW) (Article   4   §   2). They referred to certain scientific studies according to which women constituted a minority of detainees worldwide. Women were often the primary carers of children before incarceration and up to 90 percent of them had a history of domestic abuse which contributed to their criminal conduct and emphasised their vulnerability. According to the Government, Russia was not the only State that did not sentence women to life imprisonment; other States included Albania, Armenia, Azerbaijan, Belarus and Uzbekistan. The Ukrainian Parliament had adopted, at first reading, a draft law exempting women from life sentences. 46 .     Russian law established as a general rule that a life sentence could be imposed for particularly serious crimes against life and public safety. The prohibition on sentencing female and juvenile offenders and offenders aged 65 or over to life imprisonment was an exception to the rule. This exception did not infringe the rights of the majority of convicted prisoners, but rather established a privileged approach to sentencing for specific groups of individuals. It could be described as “positive inequality” designed to make up, by legal means, for the naturally vulnerable position of those social groups. In the Government’s submission, the concept of discrimination referred only to unjustified restrictions. In that sense, there was no discrimination in the applicants’ case, and their grievances were of an abstract nature because their sentences had been determined in accordance with the gravity of the crimes they had committed and did not put them at any disadvantage vis-à-vis women, juveniles or persons aged 65 or over. 47.     On the issue of whether a difference in treatment was reasonably proportionate to the legitimate aim pursued, the Government submitted that age-related restrictions were necessary because juveniles and persons aged 65 or over were vulnerable social groups who had an underdeveloped or weakened capacity to understand the implications of their conduct, to control it or to foresee the consequences of their actions. They were prone to impulsive, unconsidered behaviour that could result in criminally reprehensible conduct. As to women, the sentencing exception was justified in view of their special role in society which related, above all, to their reproductive function. The Russian Constitutional Court had previously held that a different retirement age for men and women was justified not only by physiological differences between the sexes but also by the special role of motherhood in society, and did not amount to discrimination but rather served to reinforce effective, rather than formal, equality. 48 .     In sum, the Government believed that, given the biological, psychological, sociological and other particular features of female offenders, young offenders and offenders aged 65 or over, sentencing them to life imprisonment and their incarceration in harsh conditions would undermine the penological objective of their rehabilitation. Besides, the exception concerned in reality a small number of convicted persons. In Russia, as of 1   November 2011, only 1,802 offenders had been sentenced to life imprisonment. Of the total number of 533,024 prisoners, only   42,511 were female. 3.     The third party 49.     The third party, Equal Rights Trust, submitted that, with the exception of provisions relating to juvenile offenders, blanket rules which exempted particular groups from life imprisonment could not be justified under Article 14. In support of its submission, the third party referred to international human rights law and regional and domestic law and practice. 50.     The third party indicated that references to “positive discrimination” in the context of this case were misplaced and not in accordance with the meaning of this notion in international law. Positive action was a necessary element of the right to equality and it included a range of measures to overcome past disadvantage. The measures taken must be designed to address the disadvantage identified and the State must be able to show on what basis they had concluded that the measures chosen would attain that objective. However, a blanket exemption of women from a certain type of sentence was not temporary and did not pursue any objective linked to the equality of opportunity or treatment. Article 4(2) of the CEDAW was a narrow provision relating to treatment of pregnant women and new mothers and could not be used to justify a difference in treatment of women on the basis of biological difference outside that context or to justify differences in treatment based on a perceived social role of women as mothers. Special measures for pregnant women and new mothers must be limited to what was strictly necessary (reference was made to Johnston v.   Chief Constable of the Royal Ulster Constabulary , ECJ, Case C-222/84, 15   May 1986, §§   44-46). Courts had consistently rejected arguments based on paternalism and perceptions that women were more “vulnerable” than men and in need of “protection” (they referred to Karlheinz Schmidt v. Germany , no.   13580/88, 18 July 1994, § 28, Series A no. 291 ‑ B, concerning the exemption of women from service compulsory for men on the basis of women’s “physical and mental characteristics”, and Emel Boyraz v. Turkey , no. 61960/08, §   52, 2   December 2014, concerning the restriction of recruitment of security officers to men due to risks and night-time work). 51.     As regards offenders aged 65 or over, the third party submitted that age discrimination was prohibited under all key international treaties. Creating distinctions between people above and below a particular age was inherently problematic, requiring a high degree of evidence and justification. Generalisation as to a measure’s ability to achieve a legitimate objective was insufficient ( Age Concern England , ECJ, Case C-388/07, 5   March 2009, §   51). Even if it was shown that a life sentence would more often be considered unduly harsh in the cases of persons aged over 65 than persons under 65, a blanket exemption was not necessarily a proportionate means of achieving the aim of avoiding harsh sentences. Age was not binary and any distinctions on the basis of age, where a cut-off point was identified, could call for a comparative analysis of State practice and scientific evidence when considering whether a measure was justified. 52.     Regarding ways of remedying the existing situation, the third party submitted that if a State, acting at its discretion, decided that a life sentence was “inhumane” if imposed on certain groups, and this was found to be in violation of Article 14, the principle of “no levelling down” would mean that a State could not remedy that discrimination by simply removing the more favourable treatment from the protected groups. In accordance with international legal principles and customary international law, the implementation of decisions of international tribunals should not abolish, restrict, or limit existing rights (reference was made to Article 53 of the Convention). Once the State had reduced the limitations on the right to liberty of a group of persons, it could not justify the reversal of this progress by reference to its obligation under the Convention. Instead, the third party submitted that, in order to comply with Article 14, the State should adopt an individualised approach to sentencing, which took into account, among other things, the offender’s particular characteristics. An individualised approach would allow for a more nuanced calibrating of sentencing to the specific vulnerabilities of narrowly defined categories of individuals, as opposed to the overly broad and therefore arbitrary distinctions on the basis of gender or age. B.     The Court’s assessment 1.     Applicability of Article 14 in conjunction with Article 5 (a)     Whether the facts of the case fall “within the ambit” of Article 5 53.     The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe the Article when read in conjunction with Article 14, for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it suffices that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see Clift v. the United Kingdom , no. 7205/07, § 41, 13   July 2010; Kafkaris v.   Cyprus [GC], no.   21906/04, §   159, ECHR 2008; and Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 33-34, § 9, Series A no. 6). 54.     The Court observes that the applicants did not complain about the severity of punishment as such or the length of their sentence or allege a violation of their substantive right to liberty. They complained that their sentences had deprived them of their liberty for life and that, under Article   57 of the Criminal Code, they had been treated less favourably than women or than other men aged under 18 and over 65 convicted of similar or comparable crimes, because of their gender and age, in violation of Article   14 taken in conjunction with Article 5 of the Convention. 55.     Both applicants were deprived of their liberty after conviction by a competent court, an eventuality that is explicitly covered by Article 5 §   1   (a) of the Convention. The Court reiterates that matters of appropriate sentencing fall in principle outside the scope of the Convention, it not being its role to decide, for example, what is the appropriate term of detention applicable to a particular offence (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 105, ECHR 2013 (extracts); Sawoniuk v.   the   United Kingdom (dec.), no. 63716/00, ECHR   2001 ‑ VI; T. v. the United Kingdom [GC], no.   24724/94, §   117, 16   December 1999; and V. v. the United Kingdom [GC], no. 24888/94, §   118, ECHR 1999 ‑ IX, and, by contrast, as regards a manifestly disproportionate punishment for ill-treatment, Nikolova and Velichkova v.   Bulgaria , no. 7888/03, § 61, 20 December 2007; Okkalı v.   Turkey , no.   52067/99, § 73, ECHR 2006 ‑ XII (extracts); Derman v.   Turkey , no.   21789/02, § 28, 31 May 2011). 56.     At the same time the Court has expressed the view that measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5 § 1, as the actual duration of deprivation of liberty depends on their application, among other things (see Del Río Prada v. Spain [GC], no. 42750/09, § 127, ECHR 2013, and Stafford v. the United Kingdom [GC], no. 46295/99, §§ 55-83, ECHR   2002 ‑ IV). Similarly, again in the context of the execution of a criminal sentence, in a case concerning eligibility of a life prisoner for parole, the Court considered that “although Article 5 § 1 (a) of the Convention does not guarantee a right to automatic parole, an issue may arise under that provision taken together with Article 14 of the Convention if a settled sentencing policy affects individuals in a discriminatory manner” (see Gerger v. Turkey [GC], no.   24919/94, § 69, 8 July 1999; see also, to the same effect, Clift , cited above, § 42). 57.     It is also noteworthy that, in contrast to the cases mentioned above but similarly to the one under review, in certain instances it is the criminal sentencing measure itself – rather than its execution – decided pursuant to domestic legal provisions differentiating between offenders according to age and gender which has been found to give rise to an issue under Article   14 of the Convention taken together with Article 5 (see Nelson v. the United Kingdom , no. 11077/84, Commission decision of 13   October 1986, which concerned allegations of discrimination based on age, and A.P. v. the United Kingdom , no. 15397/89, Commission decision of 8   January 1992 (striking-out), which concerned differences in sentencing of male and female young offenders). 58.     Article 5 of the Convention does not preclude the imposition of life imprisonment (see Vinter and Others , cited above, §§ 104 to 106), where such punishment is prescribed by national law. However, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see E.B. v. France [GC], no. 43546/02, § 48, 22   January 2008; Stec and Others v. the United Kingdom (dec.) [GC], nos.   65731/01 and 65900/01, § 40,