CEDH · PRESS;GCJUDGMENTS;ENG — 12 février 2008

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   97 12.2.2008   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT KAFKARIS v. CYPRUS   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Kafkaris v. Cyprus (application no. 21906/04).   The Court held: by ten votes to seven, that there had been no violation of Article   3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights; by 16 votes to one, that there had been no violation of Article   5 §   1 (right to liberty and security) of the Convention; by 15 votes to two, that there had been a violation of Article   7 (no punishment without law) with regard to the quality of the law applicable at the material time; and, by 16 votes to one, that there had been no violation of Article   7 concerning either the alleged retrospective imposition of a heavier penalty on the applicant or the exemption from remission of prisoners serving life sentences; and, by 16 votes to one, that there had been no violation of Article   14 (prohibition of discrimination).   Under Article 41 (just satisfaction), the Court held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by Mr   Kafkaris, and awarded him 13,465   euros   (EUR) for costs and expenses. (The judgment is available in English and French.)   1.     Principal facts   The applicant is Panayiotis Agapiou Panayi, alias Kafkaris, a Cypriot national, who was born in 1946. He is currently serving a mandatory sentence of life imprisonment in Nicosia Central Prison.   The case concerns, in particular, the applicant’s complaint that changes in prison regulations and domestic law meant that his prison sentence was retroactively increased from 20 years to an indefinite period.   On 9   March 1989 the applicant was found guilty by Limassol Assize Court on three counts of premeditated murder under the Criminal Code (Cap.   154). The next day he was sentenced to life imprisonment on each count. The applicant had planted and detonated a bomb in a car, killing its passengers, a man and his two young children, aged   11 and   13.   During the hearing before Limassol Assize Court concerning the sentencing of the applicant, the prosecution invited the court to examine the meaning of the term “life imprisonment” in the Criminal Code and, in particular, to clarify whether it entailed imprisonment of the convicted person for the rest of his life or just for a period of 20   years, as provided by the Prison (General) Regulations of   1981 and the Prison (General) (Amending) Regulations of   1987 (the Regulations), adopted under section   4 of the Prison Discipline Law (Cap   286).   Limassol Assize Court held that the term “life imprisonment” used in the Criminal Code meant imprisonment for the remainder of the life of the convicted person.   However, the day the applicant was admitted to prison, he was given written notice by the prison authorities that the date set for his release was 16   July 2002, subject to his good conduct and industry during detention. After committing a disciplinary offence, his release was postponed to 2   November 2002.   The applicant’s appeal against his conviction was dismissed on 21   May 1990 by the Supreme Court.   On 9   October 1992 the Supreme Court declared the prison regulations in question to be unconstitutional and ultra vires and, on 3   May 1996, the Prison Law of   1996 was enacted, repealing and replacing the Prison Discipline Law. Section 12 of Prison Law of   1996 provided for the remission of sentences for good conduct or industry, except for life prisoners.   The applicant was not released on 2 November 2002. Consequently, on 8   January 2004 he submitted a habeas corpus application to the Supreme Court challenging the lawfulness of his detention, which was dismissed. He appealed unsuccessfully.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 3   June 2004 and declared admissible on 11   April 2006. On 31   August 2006 the Chamber relinquished jurisdiction in favour of the Grand Chamber [2] . A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 24   January 2007.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Jean-Paul Costa (French), President , Nicolas Bratza (British), Boštjan M. Zupančič (Slovenian), Peer Lorenzen (Danish), Françoise Tulkens (Belgian), Loukis Loucaides (Cypriot), Ireneu Cabral Barreto (Portuguese) Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Anatoli Kovler (Russian), Stanislav Pavlovschi (Moldovan), Javier Borrego Borrego (Spanish), Elisabet Fura-Sandström (Swedish), Dean Spielmann (Luxemburger), Sverre Erik Jebens (Norwegian), Danutė Jočienė (Lithuanian), Ján Šikuta (Slovak), judges , and also Michael O’Boyle , Deputy Registrar .   3.     Summary of the judgment [3]   Complaints   The applicant complained: that his mandatory life sentence amounted to an irreducible term of imprisonment; that his continuous detention beyond the date set for his release by the prison authorities was unlawful; that it had left him in a prolonged state of distress and uncertainty over his future; and, that he had been subjected to an unforeseeable prolongation of his term of imprisonment from a definite 20-year sentence to an indeterminate term for the remainder of his life. He relied on Articles   3, 5 and 7.   He further complained under Article   14 that, while most other inmates serving life sentences had been released having served their 20-year sentence, he remained the longest serving life prisoner and, as a life prisoner, that he was excluded from the possibility of any remission to his sentence under Section   12 of the Prison Law of   1996.   Decision of the Court   Article 3   The Court observed that the prospect of release for prisoners serving life sentences in Cyprus was limited; any adjustment of a life sentence being only within the President’s discretion subject to the agreement of the Attorney-General. However, the Court did not find that life sentences in Cyprus were irreducible with no possibility of release. Nine life prisoners were released in 1993 and another two in 1997 and 2005 respectively. All of those prisoners, apart from one, had been serving mandatory life sentences. In addition, a life prisoner could benefit from the relevant provisions at any time without having to serve a minimum period of imprisonment. The Court concluded that the applicant could not claim that he was deprived of any prospect of release and that his continued detention as such, even though long, constituted inhuman or degrading treatment. However, the Court was conscious of the shortcomings in the procedure currently in place and noted the recent steps taken by the Government for the introduction of reforms.   The Court further found that, although the change in the applicable legislation and consequent frustration of his expectations of release must have caused the applicant some anxiety, it did not consider that, in the circumstances, it attained the level of severity required to fall within the scope of Article 3.   It could not be said that the applicant could justifiably harbour genuine expectations that he would be released in November 2002. Apart from the clear sentence passed by the assize court in 1989, the relevant changes in domestic law happened within a period of approximately four years (1992-1996), about six years before the release date given by the prison authorities to the applicant came up. Therefore, any feelings of hope on the part of the applicant linked to the prospect of early release had to have diminished as it became clear, with the changes in domestic law, that he would be serving the life sentence passed on him by the assize court.   It was true that a life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entailed anxiety and uncertainty related to prison life but that was inherent in the nature of the sentence imposed and, considering the prospects for release under the current system, did not warrant a conclusion of inhuman and degrading treatment. Accordingly, the Court found no violation of Article 3.   Article 5 § 1   The Court observed that, in imposing the life sentence, the assize court had made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code and not for a period of 20 years. The Court considered therefore that the fact that the applicant was subsequently given notice by the prison authorities of a conditional release date could not, and did not, affect the sentence of life imprisonment passed or render his detention beyond 2 November 2002 unlawful. Finding that there was a clear and sufficient causal connection between the conviction and the applicant’s continuing detention, the Court found no violation of Article 5 § 1.   Article 5 § 4   The Court held unanimously that the complaint under Article 5 § 4 fell outside the scope of its examination.   Article 7   Quality of the law The Court noted that the legal basis for the applicant’s conviction and sentence was the criminal law applicable at the material time and that his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code. It then examined whether domestic law at the material time determining what the “penalty” of life imprisonment actually entailed satisfied the requirements of accessibility and foreseeability.   Although at the time the applicant committed the offence it was clearly provided by the Criminal Code that the offence of premeditated murder carried the penalty of life imprisonment, it was equally clear that both the executive and the administrative authorities were working on the premise that that penalty was tantamount to 20 years’ imprisonment. The prison authorities were applying the Prison Regulations, based on the Prison Discipline Law (Cap. 286), under which all prisoners, including life prisoners, were eligible for remission of their sentence on the ground of good conduct and industry. For those purposes, Regulation 2 defined life imprisonment as meaning imprisonment for 20 years. As admitted by the Government, that was understood at the time by the executive and the administrative authorities, including the prison service, as imposing a maximum period of 20 years to be served by any person who had been sentenced to life imprisonment.   The Court concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision, so as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. Accordingly, there had been a violation of Article 7.   Retrospective imposition of a heavier penalty and changes in prison law The Court did not accept the applicant’s argument that a heavier penalty was retroactively imposed on him since, in view of the substantive provisions of the Criminal Code, it could not be said that at the relevant time the penalty of a life sentence could clearly be taken to have amounted to 20 years’ imprisonment.   Concerning the change in prison law, the Court observed that the applicant, as a life prisoner, no longer had a right to have his sentence remitted. That matter related to the execution of the sentence as opposed to the “penalty” imposed on him, which remained that of life imprisonment.   Although the changes in prison legislation and in the conditions of release might have rendered the applicant’s imprisonment effectively harsher, those changes could not be construed as imposing a heavier “penalty” than that imposed by the trial court. Issues relating to release policies, the manner of their implementation and the reasoning behind them were part of criminal policy to be determined at national level. Accordingly, there had been no violation of Article 7 concerning the alleged retrospective imposition of a heavier penalty with regard to the applicant’s sentence and the changes in prison law exempting life prisoners from the possibility of remission of their sentence.   Article 14   Concerning the alleged discrimination between the applicant and other life prisoners released since 1993, the Court observed that the life prisoners referred to were all released following the commutation and remission of their sentences by the President of the Republic in the exercise of his wide prerogative and discretionary power under Article 53 (4) of the Constitution, which was applied on a case-to-case basis. Furthermore, in the applicant’s case, Limassol Assize Court had expressly addressed the proper interpretation of a life sentence and passed a sentence of imprisonment for the remainder of the applicant’s life. The Court concluded, particularly bearing in mind the wide variety of factors taken into account in the exercise of the President’s discretionary powers, such as the nature of the offence and the public’s confidence in the criminal justice system, it could not be said that the exercise of that discretion gave rise to an issue under Article 14.   Concerning the alleged discrimination between the applicant, as a life prisoner, and other prisoners, the Court considered that the applicant could not claim to be in an analogous or relevantly similar position to other prisoners who were not serving life sentences, given the nature of a life sentence.   The Court concluded, therefore, that there had not been a violation of Article 14 in conjunction with Articles 3, 5 and 7.     Judge Bratza expressed a concurring opinion; Judge   Tulkens joined by Judges   Cabral Barreto, Fura-Sandström and   Spielmann expressed a partly dissenting opinion; Judge   Loucaides joined by Judge   Jočienė expressed a partly dissenting opinion, and Judge   Borrego Borrego expressed a partly dissenting opinion. These texts are annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Tracey Turner-Tretz (telephone: 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone: 00 33 (0)3 90 21 54 91) Sania Ivedi (telephone: 00 33 (0)3 90 21 59 45)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects. [3] This summary by the Registry does not bind the Court.