1. Introductory Notes
What does life and the quality of life mean in terms of the criminal justice system? To what extent are we entitled to limit one’s freedom and what means are we obliged to use for that purpose? How is it possible to find balance between the individual-based considerations of equity and humanity and the protection of the public?
The concepts of whole life imprisonment, incarceration without the prospect of ever being released from a penal institution and the right to hope have become closely connected in the case law of the European Court of Human Rights (the Court). The various national regulations have often raised the question of compatibility with Article 3 of the European Convention on Human Rights (the Convention) prohibiting torture, inhuman or degrading treatment or punishment.
The relevant case law of the Court has evolved at some significant points since its renowned decisions delivered in the ECHR, László Magyar v. Hungary, 2014 and the ECHR, Vinter and Others v. the United Kingdom, 2013 cases. In the following paper, I intend to introduce the guidelines set by the Court based on a two-folded approach. I will draw a comparison between the most recent ECHR, T.P. and A.T. v. Hungary, 2017 and the ECHR, Hutchinson v. the United Kingdom, 2017 cases, besides analysing them in the light of the cases preceding them.
2. The Cornerstones for Principle-building: Vinter and Others v. the United Kingdom and László Magyar v. Hungary
The Vinter and Others case can be considered as the cradle of the most significant principles in the Court’s jurisdiction on whole life imprisonment. In the United Kingdom, the Secretary of State (the Secretary) could release a life prisoner on licence at any time if exceptional circumstances existed (Crime (Sentences) Act 1997, Section 30 (1)). However, the criteria listed in the Prison Service Order (the ‘Lifer Manual’) for the exercise of this discretion on compassionate grounds were highly restrictive. Namely, if a prisoner was terminally ill or physically incapacitated and additional requirements were met, such as adequate arrangements for care and treatment outside the penal institution (Prison Service Order 4700, Chapter 12).
The Court’s consideration of the case was two-folded. On the one hand, it emphasised the margin of appreciation of the States in matters of criminal justice and sentencing. As declared in ECHR, Kafkaris v. Cyprus, 2008, States must remain free to impose life sentences for especially serious crimes. On the other hand, an irreducible life sentence may raise an issue under Article 3 (Kafkaris, §§ 97-99). A life sentence does not become irreducible by the mere fact that it may be served in full. The violation of Article 3 occurs when a life sentence is de iure (formally) and/or de facto (substantially) not reducible: if there is no prospect of release and possibility of review already at the time of imposition (Vinter and Others, § 104, § 109). The Court also declared that a whole life prisoner should not be obliged to serve an indeterminate number of years before raising a complaint and suggested a time limit of 25 years after the imposition with further periodic reviews thereafter (Vinter and Others, §§ 121-122).
The Government reflected on the broader interpretation of the Secretary’s power in national case law (e.g. in Court of Appeal, R. v. Bieber, 2009), stating that it was wide, non-prescriptive and he was required to act in accordance with the Convention. Still, the ‘Lifer Manual’ remained in force and required that release would only be ordered under the exhaustively listed circumstances (ibid., § 126). The Court laid down appropriately that it was uncertain whether the Secretary would apply the restrictive policy or would use the Article 3 test set out in Bieber. The mere possibility that this legal situation would be clarified in the future (e.g. by the withdrawal of the Prison Service Order) was considered insufficient to remedy the uncertainty existing at the time of the decision (ibid., §§ 129-130).
In Magyar, the applicant also argued that his sentence was neither de iure nor de facto reducible. Based on the Criminal Code in force at the time, eligibility for parole could be excluded in the case of life sentences (Act no. IV of 1978 on the Criminal Code, Section 47/A). The only option for the convict to get released was the individual pardon granted by the President of the Republic with the countersignature of a government member (Fundamental Law, Article 9). The applicant emphasised that neither the President nor the Minister was obliged to provide reasons and since the introduction of the presidential pardon in 1999, there had been no example of granting clemency to a whole life prisoner (ibid., § 22).
The Court called for a review which allowed domestic authorities to consider whether continued detention was justified on legitimate penological grounds (based on the prisoner’s demeanour and progress towards rehabilitation). It reiterated that, having regard to the margin of appreciation, it is not its task to prescribe the form (executive or judicial) which the review should take and when it should take place (ibid., §§ 51-52). Still, the indeterminate number of years served before submitting a complaint was contrary both to legal certainty and the general principles on victim status.
Besides, the Court noted that it would be capricious to expect the prisoner to work towards rehabilitation without knowing whether, at an unspecified future date, a mechanism might be introduced which would allow him to be considered for release. The convict is entitled to know, at the outset of his sentence, under what conditions he could get released (ibid., § 53). This requirement was not fulfilled in domestic law due to the lack of a regulated evaluation process and reasoned decisions. Although the authorities had a duty to collect information about the prisoner and enclose them with the pardon request, no criteria were prescribed for gathering and organising such personal particulars (ibid., § 55, § 58).
A crucial point in both cases was the arbitrariness of the clemency decision. However, the same result occurred on two differing bases. In Vinter, contradiction occurred between the restrictive criteria prescribed by law and the lenient interpretation in legal practice, which made the Secretary’s decisions unpredictable. In Magyar, there was no explicit regulation in the national law at all, which meant that the applicant could not learn about the process and the reasons for rejection. The Court’s assessment was consistent when it found both approaches vague, since the applicants could not foresee, at the time of the imposition of the sentence, what they must do to be eligible for pardon and when it could take place.
3. Recent Trends and Tendencies: T.P. and A.T. v. Hungary and Hutchinson v. the United Kingdom
In Hutchinson, the main question was whether the domestic law had been clarified. In the Court of Appeal, R v. McLoughlin, 2014 decision it was reaffirmed that the ‘Lifer Manual’ could not restrict the Secretary’s obligation to consider all circumstances relevant to release and the published policy could not fetter his discretion. Therefore, the Court concluded that the discrepancy identified in Vinter had been resolved (Hutchinson, §§ 39-40). As for the time frame of the review, it observed that the applicant could initiate a review ‘at any time’ without a lengthy waiting period, which could even serve his interest (ibid., §§ 67-69). Besides, the possibility of a judicial procedure was outlined that provided procedural safeguards and protection against arbitrariness (ibid., §§ 46-47).
Arguably, the Court simply suggested the revision of the ‘Lifer Manual’ to reflect the relevant Article 3 case law (ibid., § 64). It did not consider the confrontation of the written domestic legal documents and the approach of the Court of Appeal. This interpretation of McLoughlin was rather generous, not always and completely supported by the facts and statements of that decision. The Court of Appeal explicitly denied some of the most essential critiques expressed in Vinter. It stated that the law of England and Wales was clear regarding exceptional release and the lack of revision of the ‘Lifer Manual’ had no consequences due to the interpretation in domestic jurisdiction (McLoughlin, §§ 29-30, § 33).
It cannot be denied that certain positive changes were brought about by McLoughlin. The Secretary had to deliver reasoned, judicially appealable decisions. This judicial review had to involve the ‘examination of the merits’ of the prisoners’ penological needs. Nevertheless, the Grand Chamber found the Court of Appeal’s vague reference to ‘exceptional circumstances’ satisfactory, without any substantive specification. The national case law included no criteria for assessing the penological need of the convict’s further detention. The Court of Appeal stated that the power of the Secretary should be exercised in compliance with the Convention and the Court’s case-law, but it did not say what exactly that reading would be.
This shortcoming is also evidenced by the lack of any domestic application of the interpretation since then. The Court stated that the absence of any practice to that date was unsurprising, given the relatively brief period since McLoughlin and additional development could take place further on. Still, the idea that the violation of Article 3 which obviously existed at that time could be remedied by uncertain future arrangements is in contrast with the principle of the rule of law. This approach cannot only be viewed as a backtracking from Vinter but also as a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions. This could lead to the Convention being applied with double standards: the impact of national law on the Convention is maximised, whereas the effect of the Convention on domestic law is minimised. (See also: Dissenting Opinion of Jude Pinto de Albuquerque).
As for Hungary, the Court chose a less lenient approach in ECHR, T.P. and A.T. v. Hungary, 2017. After the findings in Magyar, a ‘mandatory clemency procedure’ was introduced. This included guarantees for the procedural phase preceding the decision of the President. The Clemency Board (a five-member body composed of judges of the Supreme Court, the Kúria) had to examine the request based on pre-established criteria and the Minister of Justice had to draft the clemency application in line with its opinion, including its reasoning (Section 46/F, Section 46/G Act no. CCXL of 2013 on the Execution of Punishments, Measures, Certain Coercive Measures and Confinement for Infractions). Nonetheless, the domestic legislator, in my view, failed to solve the most pressing issue: the President was still not obliged to provide grounds for his decision, even if it was contrary to the Clemency Board’s opinion. The legislation also failed to set a time-frame for the President to decide. The lack of foreseeability did not seize to exist and prisoners were left in uncertainty as to what they must do to become eligible for pardon. The other ruling which is difficult to understand in strictly penological terms was the 40-year waiting period before they could be considered for clemency (ibid. Section 46/B).
The Court’s observation that the main problem of the procedure had not been resolved is reasonable and well-established. Interestingly, a lot more attention was devoted to the 40-year time frame. It was a remarkable statement that the States’ margin of appreciation shall be limited and the need for a dedicated review mechanism no later than 25 years was declared (T.P. and A.T. v. Hungary, § 44, § 100). The Court also reflected on the ECHR, Bodein v. France case, 2015, which seems to have some substantial similarities to the present case. However, in Bodein, the 30 years of imprisonment could remain compatible with the Vinter-criteria, since the starting point of the whole-life term under French law included any deprivation of liberty, even pre-trial detention. The applicant was thus able to apply for parole 26 years after the imposition of the life sentence (ibid., § 42). The Court evaluated the individual circumstances and even if the 30-year time limit may not have been compatible with its existing guidelines, in that specific situation, the 26-year period was considered satisfactory.
In the present case, though, the Court concluded that the lengthy waiting period coupled with the lack of sufficient procedural safeguards in the second part of the review procedure made the applicant’s life sentence irreducible (ibid., § 50). (Similar concerns were expressed in the ECHR, Matiosaitis and Others v. Lithuania case, 2017.) The lack of a judicial review or at least legal reasoning by the executive within a limited time frame went against the requirements of the rule of law. But the expression ‘coupled with’ indicates an inconsistency, suggesting that the two elements are cumulative. Therefore, the 40-year period itself may not have been sufficient for finding a violation of Article 3 and, vice versa, the lack of procedural guarantees could possibly have been alleviated by a relatively short waiting period.
It can be observed that the Court’s judgements after Kafkaris tightened the States’ margin of appreciation step by step, expanding and concretising the Convention standards for a review. Nevertheless, the 25-year time limit in Vinter was a guideline rather than an accepted standard. In contrast with this approach the Court acted like a real legislator on this occasion, creating a numerical standard. The question arises: To what extent could States be expected to foresee such changes in the Court’s case law? How could they be held responsible for not complying with those requirements which had not been clarified at the time of the domestic judgement?
Lastly, the issue of individualisation shall be examined. In Bodein, the 30-year time frame was accepted after analysing the specific circumstances of the applicant’s situation. In this case, however, the applicants only served 11 and 6 years of their sentences, respectively. So, even if the national law was incompatible with Article 3, no violation would have occurred – at least not at the given time. The Court, instead of taking account of the individual aspects of the case, turned to the mere examination of the domestic regulation. This indicates the tendency that the Court can retreat to the role of supervising national legal norms, without examining whether there had been factual infringements of the applicants’ rights under the Convention (See also: Dissenting Opinion of Judge Kūris).
4. Closing Remarks
As for the ‘new generation’ of the Court’s decisions on whole life imprisonment, the assessment in T.P. and A.T. v. Hungary can be considered justified, since the arbitrariness of the President’s evaluation, as reflected already in Magyar, had not been resolved. Some procedural guarantees were integrated into the review process, but on the top of the ‘decision-making pyramid’ circumstances remained unchanged and a violation of Article 3 still exists in national law. In Hutchinson, the Court seems to have chosen a different path. It was certainly a positive change that the Secretary was required to take reasoned, judicially appealable decisions. Nevertheless, in McLoughlin, basic principles were declared (such as the predominance of legality) rather than actual clarification of the domestic provisions – as it was incapable of the latter by nature. The only way to resolve such contradiction would have been through law-making or amending the laws in force. The contrast between the domestic legal texts and case law, as referred to in Vinter, was not eliminated by the mere fact that one more verdict reiterated the broader interpretation of the originally restrictive ruling.
If this critique was true in Vinter, it had to be true on this occasion as well. Also, the statement of the Court that this ambiguity could be settled by further development in legal practice in the future cannot be satisfactory. It implies that the Court in fact recognised the still existent contrast and the lack of domestic practice but left it for the future and the domestic authorities to figure it out. Nonetheless, the Court needs to consider the individual, factual circumstances of the case at the time of its decision-making (as stated in Bodein). The applicant could not reasonably foresee at the time of the Court’s assessment with what scope the national legal provisions would be applied in his case. The only explanation for this contradiction is that more relevance was attributed to the rather general and vague declarations of the national judicial bodies than to their explicit opposition to the Court’s previous evaluation in Vinter.
The asymmetry of the line of argumentation in the two cases raises the questions: What is the scope of the margin of appreciation granted to the States? Is this scope the same for all the Contracting States? The Court’s current case law does not only demand evaluation based on individual circumstances, unambiguity and foreseeability under stricter terms, but shows clear orientation towards a norm-creating function by demanding the 25-year time limit for review. Its indication as an actual standard can be disputed, though, since it does not derive from the original wording of the Convention. Therefore, it would be advisable to leave a wider margin of appreciation for the States in this regard or, if the rather higher ‘standard’ goes on to prevail in the Court’s jurisdiction, to apply the universal principles of foreseeability and unambiguity to every State in the exact same manner.
By Krisztina Petra Gula
This material was published in Lawyr.it Vol. 5 Ed. 3, September 2018, available only online.
Kafkaris v. Cyprus [GC], no. 21906/04, 12/02/2008
Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, 09/07/2013
László Magyar v. Hungary, no. 73593/10, 13/10/2014
Bodein v. France, no. 40014/10, 13/02/2015
T.P. and A.T. v. Hungary, nos. 37871/14 and 73986/14, 06/03/2017
Matiosaitis and Others v. Lithuania, nos. 22662/13, 51059/13, 58823/13, 59692/13, 59700/13, 60115/13, 69425/13 and 72824/13, 23/08/2017
Hutchinson v. the United Kingdom [GC], no. 57592/08, 17/01/2017
Fundamental Law of Hungary
Act no. IV of 1978 on the Criminal Code
Act no. CCXL of 2013 on the Execution of Punishments, Measures, Certain Coercive Measures and Confinement for Infractions