CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mars 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sE8987665 { font-family:Arial; font-size:7pt; color:#339966; display:none } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center }     Communicated on 18 March 2014   THIRD SECTION Application no. 27683/13 Jozef KOKY against Slovakia lodged on 18 April 2013   STATEMENT OF FACTS   1.     The applicant, Mr Jozef Koky, is a Slovak national, who was born in   1977. He is serving a prison term in Ilava. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 3 February 2009 the Dolný Kubín District Court convicted the applicant of robbery under Article 188 §§ 1, 2 (b) and (c) of the Criminal Code and of theft. The judgment stated that the conditions under Article 47 § 2 of the Criminal Code were met for sentencing the applicant to life imprisonment. However, in view of the particular circumstances the District Court considered it appropriate to exceptionally impose a more lenient penalty under Article 39 § 1 of the Criminal Code. 4.     Thus reference was made to the fact that the applicant had used a firearm exclusively as a threat. Neither the offence in issue nor the other two offences of robbery of which the applicant had been earlier convicted had attained a high degree of gravity. Sentencing the applicant to life imprisonment would be disproportionate in view of the gravity of the offence and its consequence. The District Court took into account that a life sentence would be irreducible in the applicant’s case under Article 67 § 3 of the Criminal Code. 5.     Both the applicant and the public prosecutor appealed. 6.     On 30 April 2009 the Žilina Regional Court quashed the first-instance judgment as regards the sentence imposed. It then sentenced the applicant to life imprisonment. 7.     The Regional Court noted that the applicant had admitted having committed the offences of which the District Court had convicted him. Prior to that the applicant had been found guilty of criminal offences and sentenced on six occasions. Two of those convictions included robbery and prison terms of 30 months and 4 years had been imposed in that context in 1998 and 2002 respectively. The Regional Court referred, inter alia , to Article 47 § 2 of the Criminal Court and concluded that a mandatory life prison term was to be imposed on the applicant. 8.     The Regional Court held that since the applicant had had a weapon and since the District Court had convicted him also under the second paragraph of Article 188 of the Criminal Code, the circumstances of the case excluded mitigating the sentence under Article 39 § 1 of the Criminal Code. Finally, the Regional Court concurred with the District Court that the applicant’s situation as such did not justify applying Article 39 § 1 of the Criminal Code. 9.     On 26 September 2012 the Supreme Court dismissed the applicant’s appeal on points of law while upholding the reasoning of the Regional Court. 10.     On 16 January 2013 the applicant lodged a complaint to the Constitutional Court. With reference to his conviction he alleged a breach of Articles 3 and 6 § 1 of the Convention and claimed that the Žilina Regional Court’s judgment and the Supreme Court’s decision should be quashed. The applicant further indicated that he was indigent and asked the Constitutional Court to appoint a lawyer to represent him in the proceedings. 11.     In a letter dated 25 January 2013 a constitutional judge set the applicant’s submission aside as it fell outside the purview of the Constitutional Court. In particular, the letter stated that the Constitutional Court lacked jurisdiction to review the alleged unlawfulness of the ordinary courts’ decisions. B.     Relevant domestic law and practice 12.     The following provisions of the Criminal Code are relevant in the present case. 13.     Pursuant to Article 47 § 2, as in force until 31 December 2009, where a court convicts a perpetrator of, inter alia , robbery, and where such a person has earlier been convicted and punished twice for such offence and served at least a part of the sentence imposed, it should impose a sentence of life imprisonment. A court may impose a twenty-five year prison term on such perpetrator only subject to conditions laid down in Article 39 of the Criminal Code. With effect from 1 January 2010 this provision was amended in that a life sentence under Article 47 § 2 can be imposed exclusively in respect of offences for which such penalty is foreseen in the special part of the Criminal Code. Otherwise a twenty-five years’ prison term is to be imposed unless the court establishes special circumstances. In any event, a prison term below twenty years may not be imposed on such perpetrators. 14.     Article 39 § 1 entitles a court to impose a sentence which is below the minimum duration of penalty foreseen for a particular offence where the circumstances of the case or the situation of the perpetrator justify the conclusion that imposition of the statutory penalty would be disproportionately strict and where a less heavy penalty suffices to ensure the protection of the society. 15.     Article 66 § 1 allows for conditional release where a convicted prisoner’s behaviour and compliance with the obligations imposed demonstrate his or her rehabilitation and where such prisoner can be expected to behave properly. 16.     Pursuant to Article 67 § 2, a whole life prisoner can be conditionally released after having served at least twenty-five years of the sentence. 17.     Article 67 § 3, as in force until 31 December 2009, prohibited conditional release of persons (i) repeatedly sentenced to life imprisonment, or (ii) who were sentenced to life imprisonment under Article 47 § 2 of the Criminal Code. As from 1 January 2010, reference to the latter category of convicts was deleted from that provision. 18.     Pursuant to Article 188 § 1, a person who uses force or threatens to use force with the intention of taking possession of another person’s property is to be punished by a prison term of three to eight years. Paragraph 2 (b) and (c) of Article 188 provides for a prison term from seven to twelve years where the perpetrator causes damage of a greater extent and commits the offence in a more serious way of acting. Paragraph 3 of Article 188 provides for a prison term up to fifteen years and paragraph 4 for twenty-five years’ imprisonment or life term in case of aggravating circumstances specified therein. 19.     In proceedings brought under file no. PL. ÚS 6/09 on 3 November 2008 the Pezinok District Court asked the Constitutional Court to examine conformity with the Constitution and Articles 3 and 5 § 4 of the Convention of Articles 47 § 2 and 67 § 3 of the Criminal Code. 20.     On 2 November 2011 the Constitutional Court discontinued the proceedings in respect of the latter provision with reference to the amendment which had taken effect on 1 January 2010 (see paragraph 17   above). A majority of judges then concluded that Article 47 § 2 of the Criminal Code was not contrary to Article 3 of the Convention. It was admitted that in a small number of cases the effects of that provision reached the limits of conformity with Constitution from the viewpoint of their proportionality. Emphasis was put on the fact that the amendment which had taken effect on 1 January 2010 gave judges a wide discretion to take into account the particular circumstances of each case. In their separate opinions three judges disagreed with that conclusion. Views were expressed that Article 47 § 2 of the Criminal Code provided for disproportionate penalties. The offence of less serious robbery under Article 188 of the Criminal Code was referred to by way of example. COMPLAINTS 21.     The applicant complains under Articles 3 and 13 of the Convention about the imposition of a life sentence and that he has no effective remedy at his disposal in that respect. QUESTIONS TO THE PARTIES 1.     Does the sentence which was imposed on the applicant amount to a breach of Article 3 of the Convention (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, §§ 102-122, ECHR 2013 (extracts))? In particular: (i) Can the sentence be considered as “grossly disproportionate” in the circumstances? (ii) In view of Article 47 § 2 of the Convention, were the judges involved free to consider all of the mitigating and aggravating factors which were present in the applicant’s case? (iii) Has the domestic law provided, since the moment of the imposition of a whole life sentence on the applicant, appropriate mechanism or possibility for review of that sentence?   2.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention, in particular as regards the examination of his complaint by the Constitutional Court?