CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 novembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 4 December 2023   FOURTH SECTION Application no. 128/18 Vahagn MARUKYAN against Armenia lodged on 21 December 2017 communicated on 13 November 2023 SUBJECT MATTER OF THE CASE The applicant was sentenced to death penalty in 1994 which was commuted to life imprisonment further to the entry into force on 1 August 2003 of the new Criminal Code which abolished the death penalty. According to the relevant provisions of the Criminal Code and the Penitentiary Code in force at the material time, persons sentenced to life imprisonment could be eligible for early conditional release after having served at least 20 years of their term. Pursuant to the procedure then in force, if the penitentiary facility decided to submit a request on a prisoner’s premature release, that request had yet to be confirmed by an independent commission before being submitted to a court for approval. There existed a template for the relevant decision of the administration of the penitentiary facility, which consisted of 5 sections. In particular, the first 3 sections contained official information about the prisoner; the fourth section included the description of the prisoner’s behaviour while in detention, in particular the reasons for any disciplinary violations and the measures taken towards elimination thereof, behavioural changes or the absence thereof, links with the family etc. The fifth section of the form contained an assessment of the prisoner’s level of dangerousness and correction. In the applicant’s case, after 23 years of his continued detention, the penitentiary administration decided not to request his early conditional release. In particular, on 30 September 2016 the administrative commission of the Penitentiary Hospital, where the applicant was kept at the time due to his disability, considered the matter and decided not to submit a request for his early conditional release to the independent commission. The decision used the template mentioned above provided for in Decree no. 279-N of the Minister of Justice dated 13 July 2016. The fourth section of that decision reads as follows: “[The applicant] has committed two disciplinary violations while serving the punishment; has not been rewarded. He has maintained the link with the outside world. He has a calm, communicable personality, tries not to create conflicts. He has an apartment.” The fifth section of the decision reads as follows:   “Prisoner [the applicant] is not subject to early conditional release.” The decision of 30 September 2016 was apparently based on the applicant’s personal characteristics issued by the relevant unit of the prison administration on the same day, which had concluded that the applicant was not subject to early conditional release. In particular, he had committed 2 disciplinary violations - the first one back in 2006 (had hit the cell door and made noise) and the second one in 2013 (use of a mobile phone). Furthermore, he had not yet compensated the damage suffered by the victims (around 1,000 euros) and had not participated in educational, cultural and other events in prison. The document also indicated that the applicant had expressed regret for the committed crime; and contained the personal characteristics reiterated in section four of the above decision. The applicant appealed against the decision of 30 September 2016 before the Shirak Regional Court, complaining that the reasons for not requesting his early conditional release were not made clear in that decision. In particular, the impugned decision “had relied on his disciplinary breaches but had failed to clarify the reasons thereof as well as the measures aimed at the elimination of those reasons”. In those circumstances, it was not clear for him what actions he should have taken to be granted release. During the examination of the case before the Shirak Regional Court the administration of the penitentiary facility submitted a document which referred to the assessment methodology prescribed in Decree no. 44-N of 30   May 2008 issued by the Minister of Justice. The administration stated that, on the basis of that methodology, the applicant’s progress (high, medium or low) had been assessed in each of the following five categories: (1) the link with the family (medium); (2) level of dangerousness (medium); (3) the results of the execution of his “correction plan” (medium); (4) discipline (medium); and (5) participation in educational, cultural and other events, as well as participation in labour (low). The prison administration also referred to Article 114 of the Penitentiary Code, as in force at the material time, according to which the prisoner could not be conditionally released if he had not paid the amount of compensation due to the victims/their successors in a case concerning damage to health or murder. The applicant argued before the court that the administration’s decision lacked reasoning which had created uncertainty for him. He also explained that the reason for his first disciplinary violation (hitting the cell door and making noise) had been the refusal of the administration to transfer him to the hospital for surgery, and as for the second one, he had used the mobile phone as a radio since its telephone function was not working. He also promised to pay the victims’ compensation over the time from his disability pension. Turning to the issue of participation in various events in prison, the applicant claimed that, firstly, he had not been aware of any events or job opportunities in prison and secondly he could hardly have taken part in those events and worked given his health condition. In reply, the administration stated that religious and sport events such as competitions of board games had been organised in prison and that all inmates knew about such events. However, the applicant had not requested to participate. As for the reasons behind the two disciplinary violations, those were not relevant since what mattered was that the applicant had committed those breaches. On 14 February 2017 the Shirak Regional Court rejected the applicant’s appeal relying on the applicant’s assessment by the prison administration and acknowledging their margin of appreciation in that regard. It stated in its decision that during the examination of the applicant’s case by the administration of the penitentiary facility, namely on 11 August 2016 Decree   no. 279-N of the Minister of Justice dated 13 July 2016 had entered into force as a result of which Decree no. 44-N of 30 May 2008 had been revoked. Decree no. 279-N set aside the previous methodology for the evaluation of prisoners and stated that their evaluation was to be based on their behaviour and progress in implementing their correction plan. In the applicant’s case the administration had carried out the relevant assessment also on the basis of the old methodology (in force when the examination started) but had used the decision template established by Decree no. 279-N. The Regional Court’s decision was upheld upon appeal, and on 21 June 2017 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. The decision was served on the applicant on 24 June 2017. The applicant complains under Article 3 of the Convention that his life imprisonment was de facto irreducible despite the de jure possibility of early conditional release. He relies on the statistics provided by the Penitentiary Service according to which as of September 2017 none of the 25 persons having served a minimum of 20 years of their term of life imprisonment had been granted early conditional release. QUESTION TO THE PARTIES Can it be said that the applicant’s life imprisonment is de facto reducible, as required by Article 3 of the Convention? In particular: (a)     has the applicant had access to a review mechanism requiring the competent authorities to assess, based on rules having sufficient degree of clarity and certainty and on the basis of objective, pre-established criteria, whether, while serving his sentence, he had changed and progressed to such an extent that continued detention could no longer be justified on legitimate penological grounds (see Vinter and Others v. the United Kingdom [GC], nos.   66069/09 and 2 others, §§ 107-109, 119-22, 128, 9 July 2013, and Murray v. the Netherlands [GC], no. 10511/10, §§   99-100, 113-27, 26 April 2016)? (b)     if so, was that review surrounded by sufficient procedural guarantees, including the right to a reasoned decision ( see Kafkaris v. Cyprus [GC], no.   21906/04, § 105, 12 February 2008, and Murray , cited above, § 100)? (c)     has the applicant been offered an adequate possibility of rehabilitation in order to have a realistic “prospect of early release” (see Vinter and Others v. the United Kingdom [GC], cited above, §§ 110-18, 127, 9 July 2013, Murray , cited above, §§ 101-104, and Kafkaris v. Cyprus [GC], cited above, § 89)? The Government are invited to submit statistical information on the use of the review mechanism in question prior to the proceedings at issue in the present case, including the number of persons sentenced to life imprisonment who have been granted early conditional release since 10 February 2005 (the date of the entry into force of the Penitentiary Code in force at the material time).