CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 mai 2017

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LITHUANIA   (Applications nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13,   60115/13, 69425/13 and   72824/13)             JUDGMENT     STRASBOURG   23 May 2017       FINAL   23/08/2017       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Matiošaitis and Others v. Lithuania, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   András Sajó,   Nebojša Vučinić,   Helen Keller,   Paul Lemmens,   Egidijus Kūris,   Robert Spano, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 4 April 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in eight applications against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Lithuanian nationals, Mr Kęstutis Matiošaitis (application no.   22662/13), on 27   March 2013, Mr Juozas Maksimavičius (application no.   51059/13), on 25   June 2013, Mr Stanislovas Katkus (application no.   58823/13), on   11   September 2013, Mr Vladas Beleckas (application no.   59692/13), on   12   September 2013, Mr Rolandas Lenkaitis (application no.   59700/13), on 11   September 2013, Mr Aidas Kazlauskas (application no.   60115/13), on   10   September 2013, Mr Piort Gervin (application no.   69425/13), on   21   October 2013, and Mr Edmundas Svotas (application no.   72824/13), on 21   October 2013. 2.     The applicants K.   Matiošaitis, J.   Maksimavičius, S.   Katkus, V.   Beleckas, A.   Kazlauskas and V.   Gervin, who had been granted legal aid, were represented by Mr V.   Rutkauskas, a lawyer practising in Vilnius. R.   Lenkaitis and E.   Svotas did not have a legal representative. The Lithuanian Government (“the Government”) were represented by their Agent, Ms Karolina Bubnytė. 3.     The applicants alleged that their life sentences without commutation amounted to inhuman and degrading punishment, in breach of Article 3 of the Convention. The first applicant, K.   Matiošaitis, further complained that he had not been allowed to pursue vocational education while in Lukiškės Prison, in breach of Article 2 of Protocol No. 1. 4.     On 12   December 2013   the complaints concerning Article   3 of the Convention and Article   2 of Protocol No.   1 were communicated to the Government and the remainder of the applications was declared inadmissible pursuant to Rule   54 §   3 of the Rules of the Court. 5.     On 31 March 2014 the President of the Section granted the Human Rights Monitoring Institute leave, under Article 36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court, to intervene as a third party in the proceedings. 6.     On 3 September 2014 the Court sent letters by registered post to the fifth applicant, R.   Lenkaitis, at Pravieniškės Correctional Institution, and to the eighth applicant, E.   Svotas, at Lukiškės Prison, advising them that the time-limit for submission of their observations had expired on 6   August 2014 and that an extended deadline had not been requested. The Court drew their attention to Article 37 § 1 (a) of the Convention, which provides that it may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. From the relevant delivery receipts it transpires that the letters were received at Pravieniškės Correctional Institution and Lukiškės Prison (“ siunta pristatyta ir įteikta gavėjui, ar pagal įgaliojimą kitam asmeniui ”) on 13 and 15   September 2014 respectively. However, the Court has received no response from those two applicants. 7.     On 7   July 2015 the Chamber decided, under Rule 54 § 2   (a) of the Rules of the Court, that the parties should be invited to submit further written observations on the admissibility and merits of the applications. On 15   September 2015 the Government sent their observations to the Court. The further observations by six applicants were received on 27   October 2015. By letters of 12 November 2015 the Court again informed the applicants R.   Lenkaitis and E.   Svotas that they had failed to submit their observations within the time-limit of 15 September 2015, which could lead to striking their cases out of the Court’s list of cases under Article 37 §   1   (a) of the Convention. The two applicants have not responded. THE FACTS I.     CIRCUMSTANCES OF THE CASE A.     Mr K. Matiošaitis (application no.   22662/13) 8.     The first applicant, Mr Kęstutis Matiošaitis, was born on 3   February   1961 and is serving a life sentence at Lukiškės Prison ( Lukiškių tardymo izoliatorius – kalėjimas ) in Vilnius. 9.     By a Supreme Court judgment of 2 June 1993, K.   Matiošaitis was sentenced to the death penalty for aggravated murder of another prisoner, committed in prison and in a particularly cruel manner. By the same judgment the applicant was also convicted of violence against other prisoners. Under Article 24 of the old Criminal Code, in force at the time, if the death penalty was imposed, the court could change it to life imprisonment (see “Relevant domestic law”, paragraph 61 below). The Supreme Court thus changed the applicant’s sentence from the death penalty to life imprisonment. The applicant started serving his life sentence nearly twenty four years ago, in June 1993. 10.     In May 2003 a new Criminal Code came into force. Article 3 of the new Code provided for retroactive application of the law commuting a penalty or mitigating the legal circumstances of a convict in other ways (see paragraph 63 below). The applicant asked the court to reclassify his crimes and to commute the sentence imposed on him. In a final decision the Court of Appeal found that there were no grounds for commuting the life sentence imposed. 11.     In 2011, whilst serving his life sentence in Lukiškės Prison, K.   Matiošaitis obtained a bachelor’s degree in social pedagogy from the Vilnius Pedagogical University. 12.     In his annual assessment for 2009, the applicant’s character was assessed as satisfactory ( patenkinamai ) by Lukiškės Prison administration. They came to the same conclusion in further assessments in 2012 for the purpose of a pardon plea, and in 2014 at the request of the Prisons Department. As from 2007 the applicant had been working in prison, but on 31 March 2009 he refused to work, explaining in writing that he would not work with prisoners belonging to a lower caste. The applicant took part in social rehabilitation programmes aimed at social reintegration of convicted persons, reform of life prisoners and computer literacy, and responded positively. He participated actively in both individual and collective discussions, but remained suspicious and appeared unable to think objectively. The applicant had social contact with his family by means of letters, telephone calls and visits. According to the prison administration, he had fully admitted his guilt but had not made serious resolutions. By 2012 the applicant had committed three disciplinary violations. In particular, in 2010 a knife, sharpened pieces of tin, needles and other prohibited objects were found in his cell. He was then placed in a punishment cell for fifteen days. He was commended for good behaviour ten times. As of 2013 the applicant has taken part in a social skills programme organised by the Prisoners’ Care Society ( Kalinių globos draugija ) – he was part of a “knitting group”. He has also studied English in courses provided in prison. 13 .     In 2012 the applicant submitted a pardon [1] plea to the President of the Republic. His plea was rejected by the Pardon Commission at its meeting on 29   January 2013. 14.     In May 2012 the applicant lodged a complaint with the Vilnius Regional Administrative Court. As it transpires from the summary of his complaint by that court, K.   Matiošaitis argued that Article 158 of the Code for the Execution of Sentences, which prohibits life prisoners’ release on parole (see paragraph 69 below), was unconstitutional. By a ruling of 29   May 2012 the administrative court refused to examine the applicant’s complaint, underlining that the acts adopted by the President of the Republic or the Seimas could not be challenged in the administrative courts (see paragraph 108 below). 15.     In August 2014 the applicant submitted a request to Lukiškės Prison administration, stating that he would like to obtain vocational training ( mokytis profesinėje mokykloje ). The prison administration replied that the conditions in Lukiškės Prison were not appropriate for teaching a profession (see also paragraph 106 below). B.     Mr J.   Maksimavičius (application no. 51059/13) 16.     The second applicant, Mr Juozas Maksimavičius, was born on 13   December   1963 and is serving a life sentence in Lukiškės Prison. By a judgment of 20 December 1993 the Supreme Court found the applicant guilty of aggravated murder for mercenary reasons, illegal possession of firearms and other crimes. The Supreme Court sentenced him to death. 17 .     By a decree of 13 April 1995 the President of the Republic granted a pardon to the second applicant and changed his death sentence to life imprisonment. The applicant has served twenty two years of his prison sentence. 18.     Following the adoption of the new Criminal Code, the applicant asked the courts to reclassify his crimes and to commute his penalty. In a final decision the Court of Appeal held that there were no grounds for commuting the life sentence imposed, because the crime which the applicant had committed was particularly grave. 19.     The applicant’s annual character assessment for 2011 by Lukiškės Prison administration stated that he had partly admitted his guilt, but avoided talking about his crime. He worked at a manufacturing facility, took part in the social rehabilitation and recreation ( laisvalaikio užimtumo ) programmes, and devoted much time to computer work. The applicant had incurred no disciplinary penalties and had no civil claims outstanding against him. He had been commended ( skatintas ) for good behaviour thirteen times. His behaviour while in prison had been positive. In the character assessment report for 2012 drafted by the prison administration for the purpose of a pardon, it was further noted that the applicant had fully admitted his guilt and that no civil claims were outstanding against him. He was also a keen participant in individual and theme discussions. 20 .     In 2012 the applicant asked the President of the Republic for a pardon. His plea was rejected by the Pardon Commission at its meeting on 12 October 2012. The applicant’s further pardon plea was rejected 17   October 2014. C.     Mr S.   Katkus (application no. 58823/13) 21.     The third applicant, Mr Stanislovas Katkus, was born on 26   October   1956 and is currently serving a life sentence in Lukiškės Prison. On 17   August 2001 the Klaipėda Regional Court found him guilty of aggravated murder and illegal possession of firearms. He was sentenced to life imprisonment and all his property was confiscated. 22.     According to the Government, the conviction was upheld by the higher courts. The applicant started serving his life sentence more than sixteen years ago, in October 2000. 23.     Following the adoption of the new Criminal Code, the applicant asked the courts to reclassify his crimes and to commute his sentence. In a final decision of 5 December 2003, the Court of Appeal took into account the fact that, as noted in the court decision convicting the applicant, he had committed the crimes in cold blood ( šaltakraujiškai ), those crimes had had particularly grave consequences for society, and the applicant had two prior convictions. Accordingly, there were no grounds for commuting the life sentence. 24 .     According to the applicant’s annual character assessment by Lukiškės Prison administration for 2011, he had partly admitted his guilt but avoided talking about his crimes. The applicant had been an active participant in individual and theme discussions and had shown an interest in his future. He had also participated in social rehabilitation and recreation programmes, and had reacted to the former programme positively. His behaviour was satisfactory. In 2011 the applicant had been found slightly inebriated and had been placed in a punishment cell for fifteen days for that disciplinary violation. 25.     The applicant admitted that he had not yet applied for presidential pardon. D.     Mr V.   Beleckas (application no. 59692/13) 26.     The fourth applicant, Mr Vladas Beleckas, was born on 6   February 1954 and is currently serving a life sentence in Pravieniškės Correctional Institution. On 11   September 2000 the Vilnius Regional Court found him guilty of theft, robbery, destruction of property of historical and cultural value, and aggravated murder. By another judgment, the applicant was also convicted of absconding from justice. For all the crimes committed a final combined sentence of life imprisonment together with confiscation of all his property was imposed. The applicant has been serving his sentence for eighteen years, since March 1999. 27.     Following the adoption of the new Criminal Code, the applicant asked the courts to reclassify his crimes and to commute his sentence. However, on 4 February 2004 the Court of Appeal refused to change the sentence of life imprisonment. 28.     Between September 2010 and December 2013 the courts refused a number of requests ( teikimas ) by Lukiškės Prison administration to transfer the applicant to a correctional home [2] . The applicant participated in at least two of those court hearings, and testified about his reformed personality. On other occasions he was represented by different lawyers. 29.     In his written pleadings for transfer, the applicant stated that in Lukiškės Prison he had attended computer literacy courses, taken part in sports and in a group for psychological rehabilitation, and had been part of a Bible reading group. He had also communicated with the prison psychologist. The courts evaluated those factors positively. That being so, on the basis of the applicant’s character reports which Lukiškės Prison administration had drawn up for the purpose of possible transfer, the courts observed that in 2003 and 2008 he had received disciplinary punishments and had been placed for ten and fifteen days in a punishment cell, having been found in possession of a mobile phone, which was forbidden under the prison regulations. Although from 2003 until 2008 the applicant had received positive assessments and his behaviour was not conflictual, it was only in 2009, one month before he had asked the prison administration to intervene on his behalf so that he could be transferred to a correctional home, that he had fully admitted his guilt for the crimes committed. Even in his character report for 2008 the applicant was described as having no remorse about the crimes he had committed and had not made any serious resolutions. That led the courts to doubt the sincerity of his repentance. Moreover, as was apparent from his file, he had also committed a number of other small violations of the prison rules for which he had received a warning from Lukiškės Prison authorities without any disciplinary sanctions. It was also relevant that until March 2011 the applicant had remained on a list of persons likely to attempt to escape ( linkusių pabėgti asmenų įskaita ). Lastly, it was also pertinent that throughout his imprisonment the prison administration had assessed the applicant’s behaviour only as “satisfactory” ( patenkinamai ); he had not been assessed positively ( teigiamai ) until 2011. The courts thus held that it was not yet possible to conclude that the applicant had really changed and that therefore it was safe to make the conditions of serving his sentence less strict by transferring him to a correctional home. Only after further observation of the applicant’s behaviour would it be possible to reliably state that his personality changes were long term. 30.     The applicant’s character assessment by Lukiškės Prison administration, drawn up for the purpose of his pardon plea on 30   April 2012, stated that he had taken part in a number of social rehabilitation programmes, as well as individual and theme discussions. As of August 2011 he had been working in the prison laundry and had shown a strong motivation to work. He also maintained good social contacts with his family. The report nevertheless stated that the applicant had misbehaved in 2003 and 2008, when prohibited objects had been found in his cell. The applicant’s plea for presidential pardon was rejected by the Pardon Commission at its meeting on 29 January 2013. 31.     On 21 December 2015 the Vilnius City District Court rejected the applicant’s request for transfer to a correctional home. The court noted that the applicant had good social contacts because he received visits often. In May 2015 he had been commended for having actively participated in social rehabilitation programmes, which showed that his behaviour was improving. However, the district court also noted the earlier breaches of prison rules committed by the applicant (see paragraph 29 above), which showed that it was still too early to transfer him to Pravieniškės. 32.     By a ruling of 26   January 2016 the Vilnius Regional Court quashed that decision and granted the transfer request. On the basis of the applicant’s character assessments by Lukiškės Prison administration, the court held that the applicant’s behaviour had clearly improved as of April 2011, which was also proved by his active participation in the social rehabilitation programmes. E.     Mr R.   Lenkaitis (application no. 59700/13) 33.     The fifth applicant, Mr Rolandas Lenkaitis, was born on 31   December   1973 and is currently serving a life sentence in Pravieniškės Correctional Institution. 34.     On 11 October 2001 the Panevėžys Regional Court found the applicant guilty of aggravated murder and other crimes. For all the crimes committed, a final combined sentence of life imprisonment was imposed together with the confiscation of all his property and a fine. The applicant has been serving his sentence for sixteen years, since March 2001. 35.     Following the adoption of the new Criminal Code, the applicant applied to the courts with a request to reclassify his crimes and to commute his sentence. In October 2003, the first-instance court reclassified the crimes in accordance with the new legislation, which provided for certain mitigation. Following the reclassification, the confiscation of the applicant’s property and the fine were lifted. However, with regard to the crime of murder, the court found no reason to change the life imprisonment sentence. In a final decision in that regard, the Court of Appeal upheld the decision of the lower court, holding that the maintenance of the life sentence for aggravated murder was substantiated and corresponded to the basic principles for imposition of a penalty taking into account the established circumstances, the gravity of the offence and the personality of the perpetrator. 36 .     According to the applicant’s character assessment carried out by the prison administration, while serving his sentence in Lukiškės Prison between 2001 and 2005 he had committed four disciplinary violations, including use of physical violence against another inmate and possession of prohibited objects. Between 2010 and 2013 the applicant had been commended four times. The assessment of March 2014 stated that the applicant had not paid compensation to the victims of the crimes he had committed ( turi priteistą civilinį ieškinį, kurio nedengia ) and had only partly acknowledged his guilt. 37.     The applicant applied for a presidential pardon in 2013. His plea was rejected on 17   December 2013. 38.     In January 2014 the Vilnius Regional Court approved the applicant’s transfer to Pravieniškės Correctional Institution ( Pravieniškių pataisos namai – atviroji kolonija ) to continue serving his life sentence. It was important for that court that the applicant had already spent more than twelve years in Lukiškės Prison, where reports about his behaviour had been positive. He had confessed to his crimes, was respectful towards the prison administration, worked as a painter in the prison, and had responded well to social rehabilitation measures. Accordingly, there were grounds for approving the applicant’s transfer to a correctional home (see paragraph   104 below). F.     Mr   A.   Kazlauskas (application no. 60115/13) 39.     The sixth applicant, Mr Aidas Kazlauskas, was born on 21   September   1968 and is currently serving a life sentence in Lukiškės Prison. On 14   April 1995 the Šiauliai Regional Court found him guilty of aggravated murder and theft. He was sentenced to the death penalty. On 7   August 1995 the Court of Appeal changed the sentence to life imprisonment, on the basis of Article 24 of the old Criminal Code. The applicant has been serving his sentence for more than twenty-two years, since December   1994. 40.     Following the adoption of the new Criminal Code, the applicant asked the court to reclassify his crimes and to commute his sentence. In a final decision of 30 September 2003 the Court of Appeal held that there were no grounds for commuting the life sentence. 41.     In January 2005, following a proposal by Lukiškės Prison administration, the court decided to transfer the applicant to Pravieniškės Correctional Institution to serve the remainder of his life imprisonment sentence. The court held that as the applicant had received positive character assessments the transfer could be allowed. However, in April 2005 the applicant attempted to kill another life prisoner by stabbing him with a knife. The other prisoner survived only because he ran away and called for help. The applicant was then convicted of attempted murder and sentenced to twelve years’ imprisonment. The sentence was combined with the previous one and a final sentence of life imprisonment, to be served in [Lukiškės] prison ( bausmę paskiriant atlikti kalėjime ), was imposed. In his written appeal the applicant asked to be transferred back to Lukiškės Prison and never to be returned to freedom, because he was afraid of liberty. On 19   January 2007 the Court of Appeal upheld the conviction. 42 .     The applicant’s yearly character assessment for 2012 showed that he had taken part in social rehabilitation and recreation ( užimtumo ) programmes for convicts. He had received no disciplinary punishments, but had been commended twice. The applicant worked in Lukiškės Prison. He had partly acknowledged his guilt but had shown no remorse at all for his crimes ( nejaučia jokio sąžinės graužimo dėl padaryto nusikaltimo ). 43.     According to his lawyer, the applicant has never asked to be pardoned by the President of the Republic. 44.     In 2015 the applicant asked the Vilnius Regional Administrative Court to refer to the Constitutional Court the question whether Article   158 of the Code for the Execution of Sentences, which prohibits life prisoners’ release on parole, was in compliance with Article 29 of the Constitution, which prohibits discrimination, and with Article 14 of the European Convention on Human Rights, as well as Article 1 of its Protocol No   12. 45.     By a ruling of 14 May 2015 the Vilnius Regional Administrative Court refused to accept the request for examination. The administrative court noted that under Article 4 § 2 of the Law on Administrative Proceedings it could ask the Constitutional Court for interpretation of a legal norm if it considered, in a particular case, that that norm could be unconstitutional (see paragraph 108 below). Referral of a question to the Constitutional Court was within the discretionary powers of the administrative court, and the parties’ wish to have the question referred to the Constitutional Court did not bind the administrative court. In the applicant’s case, his request was of a general nature, therefore such a request could not be examined. G.     Mr P.   Gervin (application no. 69425/13) 46.     The seventh applicant, Mr Piotr Gervin, was born on 20   November   1984 and is currently serving a life sentence in Lukiškės Prison. On 17 March 2010 the Klaipėda Regional Court found the applicant guilty of aggravated murder and robbery. He started serving his life sentence seven years ago, in March 2010. 47 .     In the applicant’s annual character assessment for 2011, the Lukiškės Prison administration stated that he had taken part in social rehabilitation programmes and had reacted to them satisfactorily. He had not committed any breaches of discipline. He worked in the Lukiškės Prison and had been commended once. He had admitted his guilt. He had taken part in individual and collective discussions, but without showing much interest. 48.     The applicant is not yet entitled to apply for a presidential pardon (see paragraph 76 below). H.     Mr E.   Svotas (application no.   72824/13) 49.     The eighth applicant, Mr   Edmundas Svotas, was born on 1   January 1983. He is serving a life sentence at Lukiškės Prison. On 13 April 2010 the Panevėžys Regional Court found the applicant guilty of a number of crimes, including two aggravated murders, six robberies and illegal possession of a firearm. For all the crimes committed a final combined sentence of life imprisonment was imposed. The term of the sentence started nine years ago, in February 2008. 50 .     The applicant’s yearly character assessment for 2011 conducted by Lukiškės Prison administration disclosed that he had taken part in social rehabilitation and recreation programmes and had reacted to them satisfactorily. He was tactful, maintained constant contact with his family, had received no disciplinary penalties and had admitted his guilt. 51.     The applicant is not yet entitled to apply for a presidential pardon (see paragraph 76 below). J.     The applicants’ petition to the State authorities on the issue of parole for life prisoners 52.     The relatives of some of the applicants in this case (K.   Matiošaitis, R.   Lenkaitis, A.   Kazlauskas, S.   Katkus and J .   Maksimavičius) or of other life prisoners have addressed the State authorities asking for legislative amendments establishing the possibility of parole for life prisoners in Lithuanian law. Their pleas and the authorities’ replies may be summarised as follows. 53.     By a petition of 19 November 2007, J.B., another person sentenced to life imprisonment, filed a petition with the Seimas (the Lithuanian Parliament). He pointed out that life prisoners were a separate category of convict. After having served ten years in prison, they could ask for a milder detention regime – to be transferred to a correctional home. Nonetheless, the punishment of deprivation of liberty remained for life and they had no right to early release. He also maintained that because the punishment   –   deprivation of liberty   –   remained the same, many persons sentenced to life imprisonment did not ask to be transferred to a correctional home. 54.     J.B. also noted that life prisoners were serving sentences for crimes of varying gravity – some had been convicted for one murder, others for multiple murders. He argued that if the possibility of early release were established in Lithuanian law, it would be a motivating factor for prisoners to learn social rehabilitation skills, and thus to reform. 55.     On 1 April 2008 the Seimas granted the petition. A working group was created to consider legislative changes concerning the possibility for life prisoners to be released on parole. 56.     In January 2009, the Ministry of Justice informed life prisoners’ relatives that it was preparing legislative amendments and consulting other institutions and legal scientists. 57.     A month later, the Committee on Legal Affairs ( Teisės ir teisėtvarkos komitetas ) of the Seimas wrote to the petitioners stating that while Lithuanian penal legislation was in conformity with the European Convention on Human Rights, the Committee did not disregard the possibility that because society had developed, penal legislation could also evolve. 58.     By a letter of 5 July 2013, the Ministry of Justice informed the third applicant, S.   Katkus, that on 22 December 2011 the Seimas had amended the Code for the Execution of Sentences, including its provisions on conditional release. Nonetheless, the stipulation that life prisoners would not be released on parole remained intact. A working group had been created within the Ministry to discuss the issue further. The Ministry also observed that once persons sentenced to life imprisonment had served at least ten years of their sentence, they could ask the President of the Republic for a pardon. The President had once already changed life imprisonment to fixed ‑ term imprisonment. Moreover, the Seimas could declare an amnesty. Lastly, a person could be released from prison if he or she fell terminally ill. The Ministry reiterated that Lithuania was not obliged under European Union law or any international treaties to regulate the issue in one way or another, because penal policy was the State’s own prerogative. 59.     By a letter of 18 July 2013, the Committee on Legal Affairs of the Seimas informed the third applicant, S.   Katkus, that the question of release on parole for life prisoners whose behaviour indicated that they were no longer dangerous to others was very complex and had wide social, legal and moral repercussions. Nonetheless, the issue was being discussed at the Ministry of Justice, so that the optimal suggestions for legal reform could be presented. The Committee was confident that the penal system, as established in the new Criminal Code, was in line with international standards. 60.     In May 2015 the fourth applicant, V.   Beleckas, raised the exclusion of life prisoners’ release on parole with the Ministry of Justice. On 26 May 2015 the Vice-Minister of Justice replied that it was desirable to see firstly whether a life prisoner had reformed, and then to transfer him to a correctional home where the regime was milder. Release on parole was possible only when a life prisoner proved that he or she did not pose a danger to others. Given that the present case was pending before the European Court of Human Rights, it would be useful to consider any new grounds for life prisoners’ release only after the Court delivered its judgment. The Vice-Minister lastly mentioned amnesty, pardon and release because of incurable illness as the existing ways of mitigating life sentence. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Death penalty and life imprisonment 61.     Under Article 105 of the old Criminal Code of 1961, in force in Lithuania until 30   April 2003, aggravated murder was punishable by eight to fifteen years’ imprisonment or by capital punishment. Article 24 of that Code provided that, when a person was sentenced to the death penalty, a court could change that sentence to life imprisonment. The death penalty could also be changed to life imprisonment by way of pardon. Persons sentenced to the death penalty but whose punishment had been changed to life imprisonment had to serve their sentence in prison ( kalėjime ). 62.     On 9 December 1998 the Lithuanian Constitutional Court held that the death penalty for murder with aggravating circumstances provided for by Article 105 of the Criminal Code was in breach of Article 21 §   3 of the Constitution, which prohibits cruel punishment: “3.4.     Following restoration of the independence of Lithuania on 11 March 1990, the Criminal Code, which had been adopted during the occupation and which provided for the death penalty for eighteen crimes against the State and criminal offences and sixteen military crimes, remained in force. It is noteworthy that the Lithuanian State authorities have considered the death penalty issue many times and adopted important decisions on restricting its application. As early as 3 December 1991 the Law “on Amending and Supplementing the Republic of Lithuania’s Criminal Code, Code of Criminal Proceedings and Code of Correctional Labour” reduced the number of crimes punishable by the death penalty to one, intentional murder with aggravating circumstances, which was provided for by Article 105 of the Criminal Code. The Law of 19 July 1994 “On Amending and Supplementing the Republic of Lithuania’s Criminal Code, Code of Correctional Labour, and Code of Criminal Proceedings” provided that ... a court, instead of sentencing a person to death, could replace this punishment by life imprisonment. The death penalty may also be replaced by life imprisonment under the pardon procedure. The President of the Republic, by his decree of 25 July 1996, submitted to the Seimas for debate a draft law on a moratorium on carrying out the death penalty. In the opinion of the President of the Republic, following the enactment of such a law, temporarily, until a new Republic of Lithuania Criminal Code was approved in which the necessity of the death penalty might finally be decided, the carrying out of this punishment would be suspended. Although the draft law submitted by the President of the Republic has not been passed, since 1996 the death penalty imposed by courts has not been carried out as the President of the Republic has not considered those persons’ appeals for pardon. Without that procedure the death penalty may not by carried out. In 1996 the Government submitted to the Seimas for debate a new draft Republic of Lithuania Criminal Code in which the death penalty was not provided for. On 27 April 1997 the death penalty issue was discussed by the Baltic Assembly. It adopted a resolution recommending that the parliaments of the three Baltic states and their governments prepare to ratify Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. In addition, the Baltic Assembly recognised that the inevitable preconditions for the adoption of such a decision were: a considerable decline in the crime rate as compared to the present one, especially with respect to grievous crimes against the person; the introduction of life imprisonment into legislation which currently provides for the imposition of the death penalty; essential reorganisation and reform of the prison system by bringing it into line with standards acceptable in Europe; and the creation of possibilities to detain separately persons who have committed criminal offences of different degrees. On 24 June 1997, the Seimas considered a draft resolution to that effect, and its subsequent adoption is on the agenda of the Seimas. It is noteworthy that Recommendation no. 1339 of the Parliamentary Assembly of the Council of Europe adopted on 22 September 1997 assessed the draft resolution as providing a legal basis for the current moratorium and meeting a pre-condition for ratification of Protocol No. 6 of the European Convention on Human Rights.” 63.     After the aforementioned Constitutional Court’s ruling, on 21   December 1998 the Seimas passed a law changing the death sentence to life imprisonment for persons sentenced to death. The same month the Seimas also amended Article 105 § 2 of the old Criminal Code to the effect that aggravated murder became punishable by ten to twenty years of deprivation of liberty, or by life imprisonment. 64.     Article 3 § 2 of the new Criminal Code, which came into force on 1   May 2003, provided that a criminal law nullifying the criminality of an act, commuting a penalty or otherwise mitigating the legal circumstances of the person who has committed a criminal act, could have retroactive effect. That applied to persons who had committed the criminal act prior to the coming into force of such a law, as well as to persons serving a sentence and those with previous convictions. 65.     Article 129 § 2 of the new Criminal Code stipulates that aggravated murder is punishable by deprivation of liberty for five to twenty years or by life imprisonment. As that provision stands today, aggravated murder is punishable by eight to twenty years’ deprivation of liberty or by life imprisonment. Apart from aggravated murder, in Lithuania life imprisonment could also be imposed for most serious crimes against humanity and war crimes (for example, genocide), certain crimes against the independence, territorial integrity and constitutional order of the State (for example, coup d’état ), and some crimes against public security (for example, acts of terrorism). B.     Amnesty 66.     Under Article 78 of the new Criminal Code, a person who commits a crime may be relieved from serving the entire or a part of the sentence by an amnesty passed by the Seimas. 67.     Since 1990, the Seimas has declared seven amnesties – on the occasion, inter alia , of the re-establishment of Lithuania’s independence or to celebrate the adoption of the Lithuanian Constitution. Amnesties were applied to a great variety of criminal acts, most often to non-intentional or less serious crimes. Serious intentional crimes, for example, aggravated murder, were excluded from amnesties. The amnesties of 1998, 2000 and   2002 explicitly did not apply to life prisoners or those initially sentenced to the death penalty but whose sentence had been changed to life imprisonment. C.     Parole 68.     Article 77 of the new Criminal Code provided that release on parole and replacement of the undischarged term of a custodial sentence with a more lenient penalty would not apply to a person sentenced to life imprisonment. Article 77 was repealed on 1 July 2012, when the Parole Law ( Probacijos įstatymas ) came into force. That Law establishes the rules on resettling convicted persons in society, aimed at preventing them from reoffending. It does not mention persons serving life sentences. 69 .     The Code for the Execution of Sentences provides that prisoners who have shown good behaviour and who therefore could improve their conduct under the authorities’ supervision but without being isolated from society, may be released on parole, if the court so decides (Article 157). Nonetheless, life prisoners and prisoners in respect of whom an initial death sentence has been changed to life imprisonment may not be released on parole (Article 158 § 1 (3)). 70.     Release on parole is initially recommended by the Parole Commission, which exists in each prison and assesses the prisoner’s behaviour during his sentence, the social rehabilitation measures applied to him and their results, and the risk of the prisoner reoffending if released. D.     Dispensation from serving a prison sentence for health reasons 71.     The new Criminal Code also provides that a convicted person who contracts a terminal illness may be dispensed from serving the undischarged term of the sentence. The court decides the issue taking into consideration the gravity of the criminal act committed, the personality of the convicted person, his conduct while serving the sentence, the nature of the illness and the period of the sentence already served. Lastly, a person who, following the commission of a criminal act or imposition of a penalty, starts to suffer from a mental disorder rendering him incapable of understanding the nature of his actions or controlling them, must be dispensed from serving the undischarged term of the sentence. When dispensing the person from a penalty, the court has to decide whether to subject him to compulsory medical treatment. In the event of the person’s convalescence, he may be ordered to serve the undischarged term of the sentence (Article   76). E.     Presidential pardon 72.     Legislation on presidential pardon was established in Lithuania when the Provisional Fundamental Law ( Laikinasis pagrindinis įstatymas ), that is, a Provisional Constitution, of 11   March 1990 was enacted. Under Article   85   (1) §   9 of that Law, a collective organ of the State, the Presidium of the Supreme Council, had the right to examine and grant pardon pleas. Pardon pleas were first assessed by the Pardon Commission, comprising high-ranking State officials. 73.     Once the Lithuanian Constitution had been issued on 25 October 1992 (in force on 2 November 1992), the right to grant pardon passed to the President of the Republic [3] (Article 84 (1) §   23 of the Constitution; Article   79 of the Criminal Code). 74.     On 11   January 1993 the Acting President of the Republic issued a decree “On the Examination of Pardon Pleas ( Dėl malonės prašymų nagrinėjimo tvarkos )”. The decree stipulated that when examining pardon pleas, the following criteria were relevant: the nature of the crime committed and its danger to society; the personality of the person convicted ( nuteistojo asmenybė ), his behaviour and his attitude towards work; the time that has already been served; the prison authorities’ opinion; the opinion of non-governmental organisations and the prisoner’s former employer; as well as other circumstances. When a convict asked for pardon, the prison administration had to include in the file the court decisions convicting him or her, extensive details about the prisoner’s character ( išsami charakteristika ), including the prison administration’s recommendation and documents it found relevant. The decree did not contain any distinct provisions for persons sentenced to life imprisonment. Should a pardon plea be refused, a prisoner could submit a new plea after six months. On 10 June 1994 the President of the Republic issued a new decree, which stipulated that pardon pleas from persons in respect of whom an initial death penalty had been changed to life imprisonment could only be examined if they had served ten years of their prison sentence. The criteria to take into account when examining the pardon plea and the list of documents to be submitted remained identical to those enumerated above. If a pardon plea was refused, a life prisoner could submit a new plea after six   months. On 15 April 1998 the President of the Republic issued another decree on the rules for examining pardon pleas. The criteria to be taken into consideration, the list of documents to be submitted, as well as the requirement that the prisoner had to have served ten years of his or her sentence before being eligible to submit a pardon plea, remained the same. 75.     A new decree issued by the President of the Republic on 25 March 2003 stipulated that life prisoners could lodge a pardon plea after having served twenty years of their sentence. The relevant criteria were the same as those enumerated above. The only new criterion was whether the life prisoner had compensated the victim of his crime for the pecuniary damage caused. 76.     On 15 February 2007 the President of the Republic issued the decree which is currently in force. One amendment was made to it on 11 November 2011: the term which had to be served before a life prisoner could ask for presidential pardon was reduced from twenty to ten years. 77.     Pursuant to the aforementioned presidential decree of 2007, the Pardon Commission ( Malonės komisija ) consists of the President of the Supreme Court, the President of the Court of Appeal, the Minister of Justice, the Prosecutor General, the Chief Adviser to the President on Legal Affairs, the Adviser to the President on Legal Affairs, the Representative of the Lithuanian Lawyers’ Association, the Representative of the Lithuanian Prisoners Protection Society and the Representative of the Lithuanian Association for Crime Victims Support. 78.     The current criteria pertinent for the examination of pardon pleas read as follows: “7.     Pleas of convicts sentenced to imprisonment are examined only after the convict has commenced service of the sentence. 8.     Pardon pleas from convicts sentenced to a fixed term or life imprisonment shall be submitted only via the administration of the correctional institution, which provides for examination copies of the judgments and decisions adopted in respect of the plea together with a thorough/detailed assessme