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Cite as: [2011] ECHR 1089
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
9644/09
by Panayiotis Agapiou Panayi KAFKARIS
against Cyprus
The European Court of Human Rights (First Section), sitting on 21 June 2011 as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Mirjana
Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
Costas Clerides, ad hoc
judge,
and Søren Nielsen, Section Registrar,
Mr George Nicolaou, the judge elected in respect of Cyprus, was unable to sit in the case (Rule 28 of the Rules of Court). The Government accordingly appointed Mr Costas Clerides to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1 as in force at the time).
Having regard to the above application lodged on 13 February 2009,
Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 1 of the Convention),
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
1. Background facts of the case
2. Application no. 21906/04 and the Court’s judgment of 12 February 2008
4. In a judgment of 12 February 2008 the Grand Chamber held that there had been a violation of Article 7 of the Convention with regard to the quality of the law applicable at the time the applicant had committed the offence (see Kafkaris, cited above, §§ 143-152). At the same time, however, it concluded that there had been no violation of Article 7 in so far as the applicant complained about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence (ibid.).
5. With regard to the applicant’s other complaints under Article 3, Article 5 § 1 and Article 14 of the Convention, the Grand Chamber found that there had been no violation.
6. With regard to Article 3, the Grand Chamber held, inter alia, that although 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, it could not be said that life sentences in Cyprus were irreducible with no possibility of release; on the contrary, it was clear that in Cyprus such sentences were both de jure and de facto reducible. This was so in spite of the shortcomings in the procedure. The Grand Chamber considered therefore that the applicant could not claim that he had been deprived of any prospect of release or that his continued detention as such, even though long, constituted inhuman or degrading treatment (ibid., §§ 102-105).
7. As to Article 5 § 1 of the Convention, the Grand Chamber held that the continuing detention of the applicant after 2 November 2002 was justified under Article 5 § 1 (a) of the Convention and that therefore there had been no violation of Article 5 § 1. In this connection it held 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 twenty years and that the fact that he had subsequently been given a notice by the prison authorities, on the basis of the Prison Regulations in force at the time, setting a conditional release date could not, and did not, affect the sentence of life imprisonment passed by the Limassol Assize Court or render his detention beyond the above date unlawful (ibid., §§ 118-121).
8. Finally, the Grand Chamber held that the applicant’s complaint under Article 5 § 4 of the Convention fell outside the scope of its examination as it had been raised for the first time in his memorial to the Grand Chamber and was not covered by the Chamber’s decision on admissibility of 11 April 2006) (ibid., § 124).
9. As to the application of Article 41, the Grand Chamber considered that a finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant (ibid., § 170). However, it ordered Cyprus to pay the sum of 13,465 euros in respect of costs and expenses (ibid., §§ 175-179).
10. The Committee of Ministers of the Council of Europe concluded its supervision of the execution of the Grand Chamber’s judgment at its 1051st meeting (DH) held from 17 to 19 March 2009, at which it adopted a decision instructing the Secretariat to prepare a draft final resolution. The text of the Committee’s public notes reads as follows:
“This case concerns the infringement of the principle ‘no punishment without a law’ on account of the quality of the law applicable at the material time (1987), which did not enable the applicant to discern precisely the scope of the penalty of life imprisonment and the manner of its execution (violation Art. 7). The European Court observed that the legal basis for the applicant’s conviction and sentence was the criminal law applicable at the material time and his sentence, that was mandatory life imprisonment, corresponded to that prescribed under section 203(2) of the Criminal Code for the offence of premeditated murder. However, according to the Court, at the time the applicant committed the offence, it was equally clear that both the executive and the administrative authorities, including the prison service, understood the Prison Regulations as imposing a maximum period of 20 years to be served by any person who had been sentenced to life imprisonment. In 1988, in the Yiouroukkis case, the Nicosia Assize Court interpreted life imprisonment as meaning ‘imprisonment for life’, and, in 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court. The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision 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. On the contrary, the Court did not accept the applicant’s argument that a heavier penalty was retroactively imposed on him since it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment.
Individual measures: The European Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damages sustained by the applicant. It also found a non-violation of Article 7 as regards the applicant’s complaint that the amendment of the prison regulations subsequent to his being sentenced made it impossible for him to expect a remission of sentence. The violation found in this case consists only in the fact that the law applicable at the time the applicant committed the offence did not enable him to discern precisely the scope of the penalty of life imprisonment and the manner of its execution. When the Limassol Assize Court sentenced the applicant, it was already clear that life imprisonment had become imprisonment for the rest of one’s biological life.
General measures: Following the Supreme Court’s judgment in the case of Hadjisavvas against Cyprus (judgment of 8/10/1992, (1992)1 A.A.D. 1134), which declared the Prison (General) Regulations of 1981, as amended in 1987, unconstitutional, these Regulations were repealed in 1996. According to the new regulations the imposition of mandatory imprisonment has become imprisonment for the rest of one’s biological life, thereby excluding any possibility of remission for life prisoners.
• Legislative change: Following the judgment, the Bill establishing a parole board was finalised (details of the bill are mentioned at paragraph 92 of the European Court’s judgment). The Bill has received governmental approval and is currently being examined in detailed by the Parliamentary Committee for Legal Affairs. As the violation relates to historical provisions, the bill is not a key aspect of the general measures. However, its goal is to improve the rights of life prisoners. The bill will fix a minimum period to be served before life prisoners can become eligible for parole and establish an independent parole board.
• Publication and dissemination: Under cover of a letter from the Human Rights Sector of the Government Agent’s Office summarising the judgment and its reasoning, copies of the judgment were sent to the Ministry of Justice and Public Order, the Presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. It has also been published on the Government Legal Service website ... and widely publicised and discussed in the media.”
11. The adoption of a final resolution by the Committee of Ministers is still pending.
3. The present application: subsequent proceedings before the domestic authorities and courts
12. The facts of the present case, as submitted by the parties, may be summarised as follows.
(a) Application under Article 53 (4) of the Constitution
13. By letter dated 14 April 2008 the applicant applied, via the Director of Prisons, to the President of the Republic for pardon or conditional release.
14. By letter dated 14 July 2008 the Attorney-General refused his request. In particular, he informed the applicant that following an examination of his application, a recommendation to the President to suspend his sentence under Article 53 (4) of the Constitution was not justified.
(b) Habeas corpus proceedings before the Supreme Court
(i) First-instance proceedings (application no. 19/2008)
15. On 7 March 2008 the applicant lodged a new habeas corpus application (no. 19/2008) before the Supreme Court (first-instance jurisdiction).
16. He complained under Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention. The applicant claimed, inter alia, the following:
(a) his continued detention was in violation of Article 3, Article 5 § 4 and Article 7 of the Convention;
(b) his continued detention was contrary to the Grand Chamber’s judgment of 12 February 2008 in view of the violation found under Article 7 of the Convention;
(c) the inability to have recourse to a court to decide within a short time on the lawfulness of his detention and order his release in the event of a finding of unlawfulness constituted a violation of 5 § 4 of the Convention;
(d) the Government had not yet introduced the required legislation for establishing a parole board despite the bill that had been submitted by the Government before the Court in the context of application no. 21906/04; and,
(e) as the Attorney-General had not recommended to the President that the applicant be granted pardon or conditional release and since there was no possibility of a review of the lawfulness of the sentence imposed, his sentence had become irreducible.
17. His application was dismissed by the Supreme Court on 24 April 2008.
18. The Supreme Court observed that the applicant’s complaints under Article 3, Article 5 § 4 and Article 14 of the Convention had already been raised before that court and decided upon, in the context of the first habeas corpus procedure, both at first instance and on appeal.
19. It therefore held that as these complaints had already been examined by the Supreme Court in the context of the applicant’s previous habeas corpus applications they were res judicata and could not therefore be raised again. The applicant should have submitted all his arguments in the first habeas corpus procedure.
20. The Supreme Court also noted that the Grand Chamber in its judgment of 12 February 2008 concerning application no. 21906/04 had found that there had been no violation of Articles 3 and 14 and had not been able to examine the complaint under Article 5 § 4 as it had not been properly raised by the applicant.
21. The fact that the Attorney-General had not recommended to the President that the applicant be granted pardon did not, in the Supreme Court’s view, constitute a new factor as the same thing had occurred when the applicant had previously applied for pardon. In any event, the granting of pardon was within the discretion of the President and could not therefore be reviewed.
22. Furthermore, the Supreme Court held that the violation found by the Grand Chamber under Article 7 had been limited to the quality of the law at the time the applicant had committed the offence. The particular imprecision in the law did not exist any more as the relevant legislation had been amended (see Kafkaris, cited above, §§ 40-59). The essence of the Grand Chamber’s judgment was that there had been no violation of the applicant’s rights such as to render his continued detention unlawful. Further, the Grand Chamber had held that the finding of a violation of Article 7 of the Convention constituted in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant.
23. The Supreme Court also observed that the establishment of a parole board was now under way.
24. Finally, the Supreme Court noted that the lawfulness of a person’s detention was reviewed through the habeas corpus procedure. The applicant had already followed this procedure twice.
25. The Supreme Court therefore held that the applicant’s detention was lawful.
(ii) Appeal proceedings (appeal no. 123/2008)
26. The applicant lodged an appeal on 6 May 2008 (no. 123/2008) with the Supreme Court (appeal jurisdiction). The applicant challenged the findings of the first-instance court.
27. His appeal was dismissed on 12 January 2009. The Supreme Court in its judgment relied on the findings of the Grand Chamber.
28. With regard to the applicant’s complaint under Article 3 of the Convention, the Supreme Court observed that the Grand Chamber in its judgment, when examining Article 3, had not doubted the general adequacy of the Cypriot system, even if the prospect of release was limited. The Supreme Court relied on paragraph 104 of the Grand Chamber’s judgment:
“In his submissions, the applicant has placed great emphasis on the lack of a parole board system in Cyprus. However, the Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy (see, mutatis mutandis, Achour, cited above, § 44). In this connection, the Court observes that at the present time there is not yet a clear and commonly accepted standard amongst the member States of the Council of Europe concerning life sentences and, in particular, their review and method of adjustment. Moreover, no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release.”
29. The Supreme Court observed (apparently in the context of its examination of Article 3 of the Convention) that the Grand Chamber’s judgment did not impose an immediate obligation on the Republic to establish a parole board. In any event, however, the Supreme Court considered that the Government should not delay in establishing such a board.
30. The Supreme Court further noted that there had not been any new developments following the delivery of the Grand Chamber’s judgment. The fact that the applicant had not been included on the Attorney-General’s list for a recommendation to the President for the granting of pardon could not be considered a new development.
31. With regard to the applicant’s complaint under Article 5 § 4 of the Convention, the Supreme Court observed that, even assuming that this provision applied to other cases than those following detention after arrest, the applicant had the right to make a habeas corpus application to the courts for a review of the lawfulness of his detention. The applicant had exercised this right twice.
32. Finally, as to the applicant’s complaint under Article 7 of the Convention, the Supreme Court pointed out that the Grand Chamber’s finding of a violation of this provision had not been founded on a retrospective change in the Cypriot law as to the length of the sentence of imprisonment in the case of premeditated murder, but had been due to and confined to the “quality” of the applicable law at the time of the commission of the offence (citing Kafkaris, cited above, § 150). The changes in the Prison Law affecting remission of the applicant’s sentence related to the execution of the sentence, which remained one of life imprisonment. These changes could not be construed as imposing a heavier “penalty” than that imposed by the trial court (ibid., §151). Therefore, no issue arose. The Supreme Court noted that the Grand Chamber had acknowledged in its judgment that life imprisonment meant imprisonment for life. Even if the law at the time the applicant had committed the offence had been unclear, this had all subsequently changed following the Supreme Court’s judgment in 1992 in the case of Hadjisavvas v. the Republic of Cyprus (see Kafkaris, cited above, §§ 19, 50-51) and the amendments to the applicable legislation in 1996 (ibid, §§ 56-59).
B. Relevant domestic law and practice
33. The relevant domestic law and practice concerning life sentences and the release of prisoners is set out in the Grand Chamber’s judgment of 12 February 2008 (Kafkaris, cited above, §§ 31-62).
34. In 2009, however, the Prison Law of 1996 (Law 62(I)/96 as amended – ibid., §§ 56-59) was amended by Amending Law 37(I)/2009, which entered into force on 24 April 2009. This Law introduced significant amendments to the Prison Law, in particular to section 14, by providing for the establishment of a Release Board, an independent board for the release of prisoners on licence (section 2). Section 14 includes detailed provisions concerning the Release Board, the procedures to be followed, and the release of prisoners on licence.
35. Section 14 (1) provides for the establishment of a Release Board, whose competence is to examine and determine, in accordance with the procedures set out in the Law, prisoners’ applications for conditional release on licence so that they can continue to serve the remaining part of their sentence outside prison. On 24 June 2009 the five-member board was appointed by the Council of Ministers. On 2 February 2010 the Board’s members gave the oath required before the President of the Republic that they would faithfully exercise their duties (section 14 (4)). The Board started operating at the beginning of March 2010.
36. By section 14 A (1), a prisoner who has been sentenced to life imprisonment and has served at least twelve years of the sentence can apply to the Release Board for conditional release. Section 14 A (1) provides as follows:
“A prisoner who has served one-half of a sentence of imprisonment which exceeds two years, or who was sentenced to life imprisonment and has served at least twelve years of the sentence, is entitled to submit directly to the Release Board a written request for conditional release on parole in order to continue to serve the remaining part of the sentence outside prison.”
37. Section 14 B (1) provides that a request for release on parole as provided in section 14 A can also be submitted by the following:
“(a) a prisoner who has served at least twenty-five years of sentences of life imprisonment which run consecutively;
(b) a prisoner who has served half of the total duration of sentences which run consecutively, other than those mentioned in point (a) above, or who, where the longest of his sentences which run consecutively is a sentence of life imprisonment, has served at least fifteen years of imprisonment;
(c) a prisoner who has served half of his sentences of imprisonment which run concurrently or who has served half of the longest in duration of his sentences which run only partially concurrently so that the sentence longest in duration exceeds the other sentence or sentences, or who, where the longest sentence is one of life imprisonment, has served at least fifteen years of it.”
38. Section 14 A (4) provides that the Release Board decides on the conditions and restrictions which, in the circumstances, it considers appropriate to set for the release on licence of the prisoner in question in order to reduce the risk of recidivism. The conditions or restrictions can subsequently be modified, annulled or supplemented with additional ones (section 14 E (1)). The applicant has the right to be heard before additional or stricter conditions are set (section 14 E (1)).
39. When deciding on a prisoner’s application for release on licence and on the conditions and limitations to be set for such release, the Release Board will examine and weigh up a number of factors. These are set out in section 14 H (1) as being “(a) the degree of dangerousness of the prisoner and the possibility of recidivism; (b) the protection of society by preventing possible offences such as those for which the prisoner is serving his or her sentence; and (c) any personal, family or other circumstances which may justify the prisoner’s conditional release on licence, without, however, jeopardising the safety of society”. This section provides that the second factor is particularly significant concerning applications by prisoners who are serving a sentence of life imprisonment or long-term sentences for violent offences. Further, the Release Board, in reaching its decision in a particular case, will take into account a number of factors, including the type of offence or offences of which the prisoner was convicted, written comments made by the court in imposing the sentence, the prisoner’s criminal record, the prisoner’s intentions and plans for his or her successful and law-abiding integration into society, the prisoner’s conduct in prison, the report of the prison forensic psychiatrist and the prisoner’s degree of dangerousness (see section 14 H (2)).
40. Section 14 I (1) provides, inter alia, for an interview of the prisoner by the Release Board. At the interview, the prisoner has the right to be legally represented and to call witnesses and experts (section 14 I (1) (b) (i)). The Release Board has the obligation to hear the prisoner as well as his or her witnesses, experts and lawyers, to accept and examine any written information material and evidence which the prisoner submits, to allow the prisoner or his or her representative to examine or inspect, prior to the oral interview, any written information material which the Release Board has obtained in relation to the application for release on licence, and to put such material at the prisoner’s disposal during the interview. A record is kept of the interview (section 14 (I) (2)).
41. The Board’s decisions are given in writing and must be reasoned (section 14 J (1)).
42. A prisoner whose application is dismissed by the Release Board can file another application after the lapse of a one-year period or, if he or she is serving a life sentence or a sentence exceeding fifteen years, after the lapse of a two-year period (section 14 C (2)).
43. In the event that a prisoner fails to comply with a condition or restriction relating to his or her release, the Release Board can decide to revoke its decision to release the prisoner on licence after having given him or her the opportunity to be heard (section 14 F (1)).
44. Decisions of the Release Board can be challenged before the Supreme Court by way of administrative recourse under Article 146 § 1 of the Constitution (section 14 J (4)).
COMPLAINTS
45. Relying on the Attorney-General’s refusal of 14 June 2008 to make a recommendation to the President for pardon under Article 53 (4) of the Constitution, the applicant complained under Article 3 of the Convention about the mandatory life sentence that had been imposed on him without any hope of release.
46. The applicant complained that the mandatory nature of life imprisonment in Cyprus, coupled with the lack of a parole board, constituted a violation of Article 5 § 4 of the Convention.
47. The applicant further complained under Article 13 of the lack of an effective remedy in relation to his complaints under Article 3 and Article 5 § 4 of the Convention.
48. Finally, the applicant complained under Article 46 of the Convention that the Government had not executed the Grand Chamber’s judgment in relation to his first application (no. 21906/04). In particular, he claimed that as a result of the finding of a violation of Article 7 of the Convention he should have been released.
THE LAW
A. Alleged violations of Article 5 § 4 and Article 13 of the Convention
49. The applicant alleged a violation of Article 5 § 4 of the Convention on account of the mandatory nature of life imprisonment in Cyprus, coupled with the lack of a parole board. Relying on the Court’s judgment in the case of Stafford v. the United Kingdom ([GC], no. 46295/99, ECHR 2002 IV), he complained that there was no mechanism in Cyprus to challenge the lawfulness of his continued detention and that the Attorney-General’s decision under Article 53 (4) of the Constitution was not subject to judicial review. The applicant also invoked Article 13 in conjunction with this provision.
50. At the outset the Court finds that the applicant’s complaint falls to be examined solely under Article 5 § 4 of the Convention, being the lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999 II). Article 5 § 4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
1. The parties’ submissions
(a) The Government
51. The Government, relying on the Court’s judgment in the case of De Wilde, Ooms and Versyp v. Belgium (18 June 1971, Series A no. 12) submitted that in the present case the supervision required by Article 5 § 4 of the Convention had been incorporated in the Assize Court’s judgment of 10 March 1989, which had imposed a mandatory life sentence of imprisonment on the applicant for the offence of premeditated murder. Consequently, there was no need for separate review of the lawfulness of the applicant’s detention (they cited Wynne v. the United Kingdom, 18 July 1994, §§ 33-36, Series A no. 294 A). The Government stressed that the legal status of mandatory life imprisonment in Cyprus was markedly different from the position in the United Kingdom when the Court had given its judgment in the case of Stafford (cited above). Under domestic law, mandatory life imprisonment was imposed automatically as punishment for the offence of premeditated murder irrespective of considerations pertaining to the dangerousness of the offender (they referred to Kafkaris, § 119, cited above). In this connection, the Government referred to the findings of the Grand Chamber concerning the applicant’s complaint under Article 5 § 1 of the Convention in his previous application. In Cyprus there was no tariff period but the purpose of the mandatory life sentence was punitive as a whole, that is, imprisonment for life was imposed as a punishment. The situation was therefore akin to that concerning mandatory life sentences existing in the United Kingdom at the time of the Wynne judgment (cited above).
52. The Government further observed there had been no new issues affecting the lawfulness of the applicant’s detention entitling him to a periodic challenge of the lawfulness of his continuing detention (relying, by converse implication, on Stafford, cited above). Although the Prison Law of 1996 had been significantly amended to provide for the establishment of a Release Board, the changes did not in any way affect the nature and purpose of mandatory life imprisonment, which was still imposed by the courts automatically as punishment for the offence of premeditated murder. Moreover, they emphasised that the amendments had not brought about a change in the nature of this sentence – that is, they did not divide, or imply a division of, the sentence into a punitive element and a subsequent element based on the risk presented by the prisoner, as was the case in English criminal law. Under the new law, a life prisoner was simply given the right to apply to the Release Board after having served twelve years of his sentence. This did not in any way, however, render this period the “punishment” period of the prisoner’s sentence, as the punishment was that imposed by the courts and reflected in the sentence given for the remainder of the prisoner’s life. The purposes of mandatory life imprisonment remained punitive. The Government also noted in this regard that the Amending Law had brought about amendments in the execution of the sentence imposed by the courts and that the Release Board’s function was not to perform a sentencing exercise.
53. The Government pointed out that the applicant was eligible to apply to the Release Board for his release on licence. Within a month of its operation the Board had already received six applications by prisoners. In the Government’s view the Release Board and the provisions of the Law as amended satisfied the requirements set down by the Court’s case-law (they cited De Wilde, Ooms and Versyp, cited above; Weeks v. the United Kingdom, 2 March 1987, Series A no. 114; Hussain v. the United Kingdom, 21 February 1996, Reports of Judgments and Decisions 1996 I; Singh v. the United Kingdom, 21 February 1996, Reports 1996-I; and Svipsta v. Latvia, no. 66820/01, ECHR 2006 III). In this connection, the Government emphasised that the members of the Release Board were independent from the executive and the parties (sections 2 and 14 (2)), and that the Release Board had the power to release the prisoner (section 14 D), who had the right to be represented by a lawyer (section 14 I (1)(b) (i)) and was given the opportunity to present his or her case (sections 14 E (1), 14 F(1)) and 14 I(1) (b)). The Law guaranteed the rule of equality of arms (sections 14 E (1), 14 F (1) and 14 I (1) (b)) and the decisions of the Release Board had to be in writing and contain reasons (section 14 J (2)). Last but not least, the decisions of the Release Board could be challenged by way of recourse before the Supreme Court under Article 146 of the Constitution (section 14 J (4)).
54. In view of all the above, the Government submitted that the application was manifestly ill-founded or, in the alternative, given the establishment of the Release Board, that the application should be struck out under Article 37 § 1 of the Convention.
(b) The applicant
55. The applicant submitted that Article 5 § 4 was applicable to his case and that he was entitled to a further review of the lawfulness of his detention. In particular, he argued that in his case the original conviction imposed by the sentencing court was not sufficient for the purposes of Article 5 § 4. In this connection, he pointed out that the Assize Court, when imposing his sentence, had failed to take into account questions concerning the possibility of rehabilitation, his potential dangerousness and the probable risks he would pose to society in the future. Contrary to the Government’s submissions, the applicant claimed that Cyprus did have a “tariff” system like that provided for under English law. At the time he had been convicted and sentenced, the tariff applicable under the Prison Regulations representing the punitive element of the sentence of life imprisonment had amounted to twenty years. The applicant had therefore already served the punitive period of his sentence and, consequently, a periodic review of his continued detention was necessary under Article 5 § 4. Relying on the case of Stafford (cited above), the applicant also argued that new issues had arisen in the domestic legal system which affected the lawfulness of his continued detention. These included the finding of a violation of Article 7 of the Convention by the Grand Chamber in relation to his first application before the Court, the Attorney-General’s refusal to recommend a presidential pardon and the ineffectiveness of a new habeas corpus application in ensuring an effective review of his continued detention.
56. The applicant was of the view that the new legal provisions concerning the Release Board and conditional release were not relevant to his case because they had entered into force after the lodging of his habeas corpus application before the domestic courts and his application before the Court.
57. Consequently, the applicant claimed that at the material time, the system of conditional release had not satisfied Article 5 § 4. Relying on the Court’s judgments in Winterwerp v. the Netherlands (24 October 1979, § 64, Series A no. 33) and Keus v. the Netherlands (25 October 1990, § 28, Series A no. 185 C), the applicant maintained that neither the Attorney-General nor the President satisfied the requirements of independence and impartiality under the above provision. Furthermore, the Supreme Court had failed, in the context of his habeas corpus application, to examine the lawfulness of his detention both at first instance and on appeal, including relevant new issues and decisive factors such as his degree of dangerousness or his rehabilitation. The Supreme Court should have considered these issues in view of the fact that the applicant had already served the punitive part of his sentence.
2. The Court’s assessment
58. The Court firstly reiterates that no right to release on parole can be derived from Article 5 § 4 of the Convention. Secondly, it reiterates that where a person is deprived of his liberty pursuant to a conviction by a competent court, the supervision required by Article 5 § 4 is incorporated in the decision by the court at the close of judicial proceedings (see De Wilde, Ooms and Versyp, cited above, § 76). No further review is therefore required. As far as life sentences are concerned, the Court has found this to be so in the case of mandatory life sentences which were purely punitive in nature because of the gravity of the offence (see, as the most recent example, Iorgov v. Bulgaria (no. 2), no. 36295/02, §§ 73-77, 2 September 2010). However, in cases where the grounds justifying the person’s deprivation of liberty are susceptible to change with the passage of time, the possibility of recourse to a body satisfying the requirements of Article 5 § 4 of the Convention is required. In several cases against the United Kingdom, therefore, the Court has found that Article 5 § 4 guaranteed prisoners sentenced to life imprisonment the right to a remedy to determine the lawfulness of their detention once they had served the “tariff” (the retributive and deterrent part of their sentence), since under English law, on expiry of that initial punitive period further detention depended solely on circumstances that were subject to change, such as how dangerous the individual was considered to be, or the risk of his reoffending (see, among other authorities, Wynne v. the United Kingdom (no. 2), no. 67385/01, § 24, 16 October 2003; Stafford, cited above, § 87, and Waite v. the United Kingdom, no. 53236/99, § 56, 10 December 2002).
59. In the present case, the applicant was convicted on three counts of premeditated murder and received a mandatory life sentence pursuant to section 203 (2) of the Criminal Code. Under Cypriot law, such a sentence is imposed automatically under the Criminal Code as the punishment for the offence of premeditated murder irrespective of the considerations pertaining to the dangerousness of the offender. In imposing the life sentence the sentencing court 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 (see Kafkaris, cited above, § 119). It is clear, therefore, that the determination of the need for the sentence imposed on the applicant did not depend on any elements that were likely to change in time (unlike in Stafford, cited above, § 87). The “new issues” relied upon by the applicant (see paragraph 55 above) cannot be regarded as elements which render the reasons initially warranting detention obsolete or as new factors capable of affecting the lawfulness of his detention. Nor can it be said that the applicant’s sentence was divided into a punitive period and a security period as he now claims (see Stafford, cited above, § 40). In this connection, the Court notes that the Prison Regulations in force at the material time defined life imprisonment as a whole as being tantamount to imprisonment for twenty years; the twenty-year period was therefore not the equivalent to a “tariff” or “minimum term”.
60. Furthermore, in view of the Grand Chamber’s findings under Article 5 § 1 of the Convention in connection with the applicant’s first application, the applicant’s continuing detention is pursuant to his conviction and in accordance with the mandatory life sentence imposed on him by the Assize Court.
61. Accordingly, the Court considers that the review of the lawfulness of the applicant’s detention required under Article 5 § 4 is incorporated in the conviction pronounced by the courts, no further review therefore being required.
62. In any event, the Court notes that the recent amendments to the relevant domestic law have brought about significant changes in the situation of prisoners, in particular life prisoners. The Court observes that despite the imposition by the courts, in cases of premeditated murder, of a mandatory sentence of whole life imprisonment, the system now in place allows life prisoners to apply to the Release Board after having served a minimum term of imprisonment (sections 14 A (1) and B (1) of the Prison Law). The applicant is already eligible to apply to the Release Board. He does therefore have the possibility under domestic law of a periodic review of the need for his continued detention. The Court cannot accept the applicant’s argument that these new developments are not relevant to the present application.
63. Taking into account all the above, the Court finds that the applicant’s complaint under Article 5 § 4 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violations of Articles 3 and 13 of the Convention
64. The applicant complained under Article 3 of the Convention that he was serving a mandatory life sentence without hope of release. In this connection, he relied on the Attorney-General’s refusal of 14 June 2008 to make a recommendation to the President for pardon or for his conditional release under Article 53 (4) of the Constitution following his new application to this effect. Consequently, the applicant argued that his sentence was de jure and de facto irreducible. The applicant further complained under Article 13 of the lack of an effective remedy in relation to his complaint.
65. The Court considers that the applicant’s complaint under Article 13 is in substance the same as the one made under Article 3 and therefore raises no separate issue. The Court will thus examine the complaint under Article 3 alone, which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
66. The Court notes that the applicant in his previous application also complained under Article 3 of the Convention, having alleged, inter alia, that the mandatory life sentence imposed on him had been irreducible, excluding any possibility of release. The question therefore arises whether the present complaint is inadmissible under Article 35 § 2 (b) and 4 of the Convention, which provides, in so far as relevant, as follows:
“2. The Court shall not deal with any application submitted under Article 34 that
...
(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.
...
4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings.”
67. The Court observes that the rule in Article 35 § 2 of the Convention that an application must not be substantially the same as a previous one is intended to ensure the finality of the Court’s decisions and to prevent applicants from seeking, through the lodging of a fresh application, to appeal against previous judgments or decisions of the Court (see Mann v. Portugal and the United Kingdom (dec.), no. 360/10, 1 February 2011, citing Lowe v. the United Kingdom (dec.), no. 12486/07, 8 September 2009).
68. The Court reiterates that an application will generally fall foul of this article where it has the same factual basis as a previous application. It is insufficient for an applicant to allege relevant new information where he or she has merely sought to support his or her past complaints with new legal argument (see I.J.L. v. the United Kingdom (dec.), no. 39029/97, 6 July 1999). In order for the Court to consider an application which relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information which has not been previously considered by the Court, within the six-month deadline set out in Article 35 § 1 of the Convention (see Mann and Lowe, both cited above).
69. In the present case the Court considers that the complaint raised by the applicant under Article 3 is substantially the same as the one already made and examined in his previous application. In this connection, the Court notes that the applicant’s application of 14 April 2008 for pardon or conditional release was the second such application made by him. In particular, on 16 March 1998, the applicant had applied, via the Director of Prisons, to the President at the relevant time, for pardon or the suspension of the remainder of his sentence in order to help out his wife, who was suffering from leukaemia (see Kafkaris, cited above, § 21). His request was refused by the Attorney-General at the material time on 30 April 1998 (ibid., § 22). This fact was before the Grand Chamber when it decided on the applicant’s complaint under Article 3, and in particular the question whether or not the sentence of life imprisonment imposed on the applicant in the particular circumstances had removed any prospect of his release. The Grand Chamber found that, although the prospect of release for prisoners serving life sentences in Cyprus was limited as the adjustment of such a sentence was only within the President’s discretion subject to the agreement of the Attorney-General, and despite the shortcomings in this procedure, in Cyprus life sentences were both de jure and de facto reducible (ibid., §§ 103-105; see also paragraph 6 above). It is clear therefore that the refusal of the application by the Attorney-General did not have any bearing on this conclusion.
70. In view of the above, the fresh refusal by the Attorney-General of the applicant’s second application does not in the Court’s view constitute “relevant new information” which could alter the basis on which its previous decision was taken.
71. It follows that this part of the application falls within the scope of Article 35 § 2 (b) of the Convention and must be rejected pursuant to Article 35 § 4.
C. Alleged violation of Article 46 of the Convention
72. The applicant complained under Article 46 of the Convention that the Government had failed to execute the Grand Chamber’s judgment of 12 February 2008 in his previous application. In particular, the applicant claimed that he was still being held in detention despite the Grand Chamber’s ruling of a violation of Article 7 of the Convention. Article 46 of the Convention provides as follows:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
...
4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the Committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.”
73. The Court reiterates that findings of a violation in its judgments are essentially declaratory (see Lyons and Others v. the United Kingdom (dec.), no. 15227/03, ECHR 2003-IX; Krčmář and Others v. the Czech Republic (dec.), no. 69190/01, 30 March 2004; and Marckx v. Belgium, 13 June 1979, § 58, Series A no. 31) and that, by Article 46 of the Convention, the High Contracting Parties undertook to abide by the final judgments of the Court in any case to which they were parties, execution being supervised by the Committee of Ministers (see, mutatis mutandis, Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 34, Series A no. 330-B).
74. The Court has often emphasised that it does not have jurisdiction to verify whether a Contracting Party has complied with the obligations imposed on it by one of the Court’s judgments. It has therefore refused to examine complaints concerning the failure by States to execute its judgments, declaring such complaints inadmissible ratione materiae (see Moldovan and Others v. Moldova (dec.), no. 8229/04, 15 February 2011; Dowsett v. the United Kingdom (no. 2) (dec.), no. 8559/08, 4 January 2011; Öcalan v. Turkey (dec.), no. 5980/07, 6 July 2010; Haase v. Germany, no. 11057/02, ECHR 2004 III; Komanický v. Slovakia (dec.), no. 13677/03, 1 March 2005; Lyons and Others, cited above; Krčmář and Others, cited above; and Franz Fischer v. Austria (dec.), no. 27569/02, ECHR 2003 VI).
75. This is not to say, however, that measures taken by a respondent State in the post-judgment phase to afford redress to an applicant for the violation or violations found fall outside the jurisdiction of the Court. On the contrary, the Court has acknowledged a certain degree of competence to examine such complaints where it has considered that a “new issue” was raised in the follow-up application. In particular, the Court has stated that the Committee of Ministers’ role in this sphere does not mean that measures taken by a respondent State to remedy a violation found by the Court cannot raise a new issue undecided by the judgment (see Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 62, ECHR 2009 ...; Haase, cited above; Hakkar v. France (dec.), no. 43580/04, 7 April 2009; Mehemi v. France (no. 2), no. 53470/99, § 43, ECHR 2003 IV; Rongoni v. Italy, no. 44531/98, § 13, 25 October 2001; Rando v. Italy, no. 38498/97, § 17, 15 February 2000; Pailot v. France, 22 April 1998, § 57, Reports 1998-II; Leterme v. France, 29 April 1998, Reports 1998-III; and Olsson v. Sweden (no. 2), 27 November 1992, Series A no. 250) and, as such, form the subject of a new application that may be dealt with by the Court. For example, the Court may entertain a complaint that a retrial at domestic level by way of implementation of one of its judgments gave rise to a new breach of the Convention (see Lyons and Others, cited above, and also Hertel v. Switzerland (dec.), no. 3440/99, ECHR 2002-I). Further, the Court may take account of what has been done at national level in cases where it has reserved the issue of just satisfaction (see Schuler-Zgraggen v. Switzerland (Article 50), 31 January 1995, Series A no. 305 A, and Barberà, Messegué and Jabardo v. Spain (Article 50), 13 June 1994, Series A no. 285-C).
76. However, these considerations do not apply in the instant case. The applicant’s complaint under Article 46 is plainly that the Government have failed to execute the Grand Chamber’s judgment concerning his previous application. Moreover, the Court notes that in its judgment of 12 February 2008 the Grand Chamber found a violation of Article 7 on the basis that at the time the applicant had committed the offence of premeditated murder, “the relevant Cypriot law taken as a whole was not formulated with sufficient precision 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”. The Grand Chamber emphasised, however, that there was no element of retrospective imposition of a heavier penalty involved since in view of the substantive provisions of the Criminal Code, it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years’ imprisonment. The violation of this provision was therefore confined to the “quality of the law” at the time of the commission of the offence. The Court notes that this finding should be seen in conjunction with the Grand Chamber’s finding under Article 5 § 1 of the Convention that the applicant’s detention since 2 November 2002 remained lawful.
77. Furthermore, although the Committee of Ministers has ended its supervision of the execution of the Grand Chamber’s judgment, the adoption of a resolution is still pending (see paragraphs 10 and 11 above). In the Committee’s public notes no reference is made to any requirement for the applicant to be released.
78. Having regard to all the above, the Court finds that this part of the application must be rejected as incompatible ratione materiae with the provisions of the Convention in accordance with Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
Søren
Nielsen Nina Vajić
Registrar President