KAFKARIS v. CYPRUS
Inadmissible
Anatoly Kovler;Costas Clerides;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
1. The applicant, Mr Panayiotis Agapiou Panayi, alias Kafkaris, is a Cypriot national who was born in 1946. He is currently serving a mandatory sentence of life imprisonment for premeditated murder in the Nicosia Central Prisons. He is represented before the Court by Mr A. Demetriades, a lawyer practising in Nicosia. The respondent Government (“the Government”) were represented by their Agent, Mr P. Clerides, Attorney-General of the Republic of Cyprus. 2. The background facts of the case are set out in the Grand Chamber’s judgment of 12 February 2008 concerning the applicant’s first application before the Court (Kafkaris v. Cyprus [GC], no. 21906/04, §§ 12-30, ECHR 2008...). 3. On 3 June 2004 the applicant lodged an application with the Court (application no. 21906/04) against the Republic of Cyprus under Article 34 of the Convention. The applicant alleged that Articles 3, 5, 7 and 14 of the Convention had been violated as a result of his life sentence and continuing detention. 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. 12. The facts of the present case, as submitted by the parties, may be summarised as follows. 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. 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: 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. 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)).