CEDH · CASELAW;COMMUNICATEDCASES;ENG — 25 juin 2024

.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 } .s3BF0B6C7 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt }   Published on 15 July 2024   FOURTH SECTION Applications nos. 8363/19 and 20876/20 Arsen ARTSRUNI against Armenia and Kamo SHALUNTS against Armenia lodged on 19 January 2019 and 11 May 2020 respectively communicated on 25 June 2024 SUBJECT MATTER OF THE CASES Application no. 8363/19 The applicant was sentenced to death penalty in 1996 which was commuted to life imprisonment after the entry into force of the Criminal Code of 2003 which abolished the death penalty. According to the relevant provisions of the Criminal Code and the Penitentiary Code, as in force at the material time, persons sentenced to life imprisonment could be eligible for early conditional release after having served at least twenty years of their term. On 12 July 2017, when the applicant had served almost twenty-three years of his term, the Independent Commission on Early Conditional Release (“the Commission”) issued a negative conclusion as regards his early release. On 1 December 2017 the Shirak Regional Court (“the Regional Court”) upheld the Commission’s position on the grounds that the applicant had been subjected to three disciplinary penalties, had not been rewarded, had been maintaining the relationship with his family mainly by telephone and that the Commission’s conclusion regarding his early conditional release had been given in accordance with the procedure prescribed by law. The court’s decision also mentioned that the applicant had participated in educational programs, was a Ph.D. student, was indifferent towards criminal subculture, felt remorse for the committed offence and did not have interpersonal conflicts. The applicant lodged an appeal, arguing that the Regional Court had failed to properly substantiate its decision, which was based on abstract notions failing to properly assess his “positive characteristics” given by the prison administration (for which he had been granted an additional visit as a reward); his efforts towards rehabilitation, including his university studies, participation in a number of educational and cultural programmes, assistance with technical work in the prison and the availability of a place for him to live after release. According to the applicant, the only negative point in his file which was relied on by the court was the fact that he had been imposed three disciplinary sanctions in 2006, 2009 and 2013 in relation to the possession of a mobile phone and an internet distribution device. However, three penalties in more than twenty years could not as such justify his further continued detention. The applicant claimed that none of almost three dozen life prisoners in Armenia, had been granted early conditional release after having served twenty years of term, which meant that it was de facto unavailable for them. On 9 April 2018 the Criminal Court of Appeal upheld the Regional Court’s decision and found that the applicant had not met the criteria for early conditional release laid down in the law. In his appeal on points of law the applicant added that by relying on his extinguished penalties as a ground for rejection, the courts had created an obstacle that he could never overcome to be granted early conditional release. On 5 September 2018 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. The applicant complains under Article 3 of the Convention that his life imprisonment is de facto irreducible despite the de jure possibility of early conditional release. Application no. 20876/20 The applicant was sentenced to death penalty in 1996 which was commuted to life imprisonment after the entry into force of the Criminal Code of 2003 which abolished the death penalty. On an unspecified date (between the end of 2018 and the beginning of 2019) the prison administration issued a report concluding that the applicant was eligible for early conditional release and lodged a court request seeking his release. It stated in particular that the applicant had felt remorse for the committed crime, had a negative attitude towards the criminal sub-culture, was going to the gym, had lost his mother and wife, had a minor daughter with a disability under his care and had a serious health problem. On 4 April 2019 Yerevan Court of General Jurisdiction rejected the request referring to the gravity of the crimes that the applicant had been convicted for, to two disciplinary penalties imposed on him in 2010 for the possession of a mobile phone, to the failure to compensate the damage suffered by the victims, as well as to the applicant’s personality and his “behaviour throughout imprisonment”. The applicant unsuccessfully challenged that decision complaining of de facto irreducibility of his life sentence. On 12 November 2019 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. On 19 October 2022 the Probation Service issued a report (in line with the procedure after the entry into force of the new Penitentiary Code), according to which, although the applicant had demonstrated positive behaviour throughout his imprisonment (the applicant had a negative attitude towards criminal sub-culture, had participated in rehabilitation events organised in the prison and was working there, had partly compensated the damage suffered by the victims etc.), the likelihood of him committing a new crime once at large was high. The Probation Service did not recommend granting the applicant early conditional release since he had been convicted for grave crimes, had been subjected to three disciplinary penalties (two in 2010 and one in 2019) for having been found in possession of a mobile phone, had not fully compensated the inflicted damage, started to participate in sport activities in prison only from 2018 and in the re-socialisation programs only from 2019 after being denied early release and most of the victims’ family members objected to his release. At the same time, on 3 November 2022 the prison administration issued a positive report as regards the applicant’s early conditional release and on 11   November 2022 submitted a corresponding request to the court. On 31   May 2023 the Kotayk Regional Court rejected the request essentially endorsing the reasons given in the Probation Service’s report of 19 October 2022. In doing so, it emphasised the gravity of the crimes committed by the applicant and stated that his early conditional release “would not serve the goals of the punishment”. The applicant appealed complaining of de facto irreducibility of his life sentence and the lack of reasoning in the court decisions. On 2 October 2023 his appeal on points of law was declared inadmissible by the Court of Cassation for lack of merit. The applicant complains under Article 3 of the Convention that his life imprisonment is de facto irreducible despite the de jure possibility of early conditional release.   QUESTIONS TO THE PARTIES Can it be said that the applicants’ life imprisonment is de facto reducible, as required by Article 3 of the Convention? In particular:   (a) have the applicants 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 their sentences, they 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 and 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) have the applicants been offered an adequate possibility of rehabilitation in order to have a realistic “prospect of early release” (see Kafkaris , cited above, § 89; Vinter and Others , cited above, §§ 110-18 and   127, 9 July 2013; and Murray , cited above, §§ 101-104)?   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 cases, 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).   The Government are also invited to submit the conclusion of the Independent Commission on Early Conditional Release of 12 July 2017 in application no. 8363/19 and the applicants’ personal files, including any characteristics given by the prison administration.