ITEMID: 001-85019
LANGUAGEISOCODE: ENG
RESPONDENT: CYP
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF KAFKARIS v. CYPRUS
IMPORTANCE: 1
CONCLUSION: No violation of Art. 3;No violation of Art. 5-1;Violation of Art. 7;No violation of Art. 7;No violation of Art. 14;Non-pecuniary damage - finding of violation sufficient
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabet Fura;Françoise Tulkens;Ireneu Cabral Barreto;Ján Šikuta;Javier Borrego Borrego;Jean-Paul Costa;Khanlar Hajiyev;Loukis Loucaides;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Snejana Botoucharova;Stanislav Pavlovschi;Sverre Erik Jebens
TEXT: 11. The applicant was born in 1946. He is currently serving a sentence of life imprisonment at the Nicosia Central Prison.
12. On 9 March 1989 the applicant was found guilty by the Limassol Assize Court on three counts of premeditated murder committed on 10 July 1987, under, inter alia, section 203(1) and (2) of the Criminal Code (Cap. 154). On 10 March 1989 the Assize Court sentenced him to mandatory life imprisonment in respect of each count. The applicant had planted an explosive device under a car and detonated it, causing the death of Mr P. Michael and his two children, aged 11 and 13. The applicant had been promised the sum of 10,000 Cypriot pounds by someone who he has not identified for the murder of Mr P. Michael.
13. In its judgment passing sentence on the applicant, the Limassol Assize Court observed that the prosecution had 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 twenty years as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”), adopted under section 4 of the Prison Discipline Law (Cap. 286). If the court found that the latter was applicable, then the issue of whether the sentences should be imposed consecutively or concurrently would arise and the prosecution would propose consecutive sentences.
14. The Assize Court relied primarily on the findings of the Nicosia Assize Court in 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis (judgment of 5 February 1988, case no. 31175/87) and accordingly stated that it was not competent to examine the validity of the Regulations or take into account any possible repercussions they could have on the sentence. The 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. In view of this, the court did not consider it necessary to examine whether the sentences it imposed would run concurrently or consecutively.
15. In particular, in its judgment the Assize Court stated the following:
“The Law on the basis of which the accused has been found guilty on three counts of premeditated murder, provides that:
‘Whosoever shall be convicted of premeditated murder shall be liable to imprisonment for life’.
It follows, therefore, that for the offence in question life imprisonment is imposed by the court as a mandatory sentence.
Mr Kyprianou, on behalf of the Prosecution, has invited the court to examine the meaning of life imprisonment and decide whether it means imprisonment of the convicted person for the rest of his life or whether it means, as provided by the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”) as provided by Regulation 2 of the Prison (General) Regulations of 1981 and the Prison (General) (Amending) Regulations of 1987 (hereinafter “the Regulations”), adopted under section 4 of the Prison Discipline Law (Cap. 286), imprisonment for a period of twenty years. Mr Kyprianou has suggested that in the event that the court concludes that life imprisonment is interpreted as being for twenty years, an interpretation which, if we understood him correctly, he claimed as the correct one, then the issue as to whether the sentences should be imposed consecutively or concurrently would arise. It was, finally, his suggestion, which was in fact the purpose for which he referred to this matter, that, if this was the outcome, it would be correct in the present case, taking into account the special circumstances of the commission of the offences, that the sentences should be served consecutively.
The same issue, in substance, was put before the Nicosia Assize Court in case no. 31175/87 between The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis. In that case the Assize Court, in its detailed judgment, in which reference is made to the general principles governing the issue and also to the jurisprudence, concluded that the meaning of life imprisonment lies in the clear meaning imparted by the words, and that the Assize Court was not competent to examine the validity of any regulations or to take into account any possible repercussions they could have on the sentence. We completely agree with this judgment to which we refer. Concerning the validity of the Regulations, the Attorney-General of the Republic could probably have looked for other mechanisms for deciding the matter at the time when the competent authorities attempted to implement the specific regulation. We do not make mention here of the constitutional right of the President to grant pardon. With regard to the court’s observation that the repercussions of such regulations, if it is assumed of course that they are valid, are not taken into account, we refer in addition to the decision in Anthony Maguire Frederick George Charles Enos 40 Cr. App. R. p. 92, Martin Derek Turner 51 Cr. App. R. p. 72 and R. v. Black (1971) Crim. L.R. 109.
We consider that imprisonment for life means imprisonment for the remainder of the convicted person’s life. It is therefore pointless to consider whether the sentences will run concurrently or whether they will be served consecutively.”
16. When the applicant was admitted to prison to serve his sentence, he was given written notice by the prison authorities that the date set for his release was 16 July 2002. In particular, he was given an F5 form titled “Personal File of Convict”, “I.D. no. 7176”. On the form, under the heading “Sentence”, it was marked “Life” and then “Twenty Years”; under the heading “Period” it was marked “From 17 July 1987 to 16 July 2007” and under the heading “Expiry” it was noted “Ordinary Remission 16 July 2002”. The applicant’s release was conditional on his good conduct and industry during detention. Following the commission of a disciplinary offence on 6 November 1989, his release was postponed to 2 November 2002.
17. The applicant appealed against his conviction.
18. On 21 May 1990 the Supreme Court dismissed the appeal upholding his conviction.
19. On 9 October 1992 in the case of Hadjisavvas v. the Republic of Cyprus (judgment of 8 October 1992, (1992) 1 A.A.D. 1134), the Supreme Court, in the context of a habeas corpus application lodged by a life prisoner who was not released on the date given by the prison authorities, declared the Regulations unconstitutional and ultra vires (see paragraphs 50-51 below).
20. On 3 May 1996 the Prison Law of 1996 (Law no. 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law.
21. By a letter of 16 March 1998, the applicant applied, via the Director of Prisons, to the President of the Republic at the relevant time for pardon or the suspension of the remainder of his sentence in order to help care for his wife who was suffering from leukaemia.
22. By a letter of 30 April 1998, the Attorney-General at the material time refused his request. In particular he informed the applicant that, following an examination of his application, he was of the opinion that a recommendation to the President to suspend or commute his sentence under Article 53 § 4 of the Constitution was not justified.
23. The applicant was not released on 2 November 2002.
24. On 8 January 2004 the applicant submitted a habeas corpus application to the Supreme Court (first-instance jurisdiction) challenging the lawfulness of his detention. In this context he relied upon Article 3, Article 5 § 4 and Article 7 of the Convention. The Supreme Court, after considering the above-mentioned provisions, dismissed the application on 17 February 2004.
In his judgment Kallis J stated, inter alia, the following:
“... What is of importance in the present case is the principle set out in the case of Hogben and not the differences in the details of the facts. The principle then that has been laid down in the case of Hogben is that Article 7 applies only to the sentence that is imposed and not to the manner of serving the sentence. Therefore Article 7 does not prohibit a retrospective change in the law or in practice concerning release or conditional release from prison of a prisoner.
I am therefore of the view that the principle set out in Hogben can be applied in the present case. Everything that the learned counsel of the applicant has pleaded has to do with the practice of release from prison. In the instant case the Assize Court imposed a sentence of life imprisonment on the applicant and explained to him at the same time that life imprisonment meant imprisonment for the remainder of his life. What the prison authorities then did, with the F5 form, constitutes an action concerning the execution of the sentence. After the case of Hadjisavvas the Regulations on the basis of which the prison authorities gave the applicant the F5 form, have ceased to apply, with the result that the sentence of life imprisonment imposed on the applicant by the Assize Court is applicable. What happened was a change in the legal situation concerning the time of the applicant’s release. As in the Hogben case, Article 7 § 1 of the Convention is not applicable.
...
I endorse the principle set out in Hogben. I consider that the applicant cannot derive a right to judicial review on the basis of Article 5 § 4 of the Convention because of the alleged change in the date of his release from prison which does not change the legal basis for his detention. It should be emphasised that his detention is founded on the sentence of life imprisonment imposed on him by the Assize Court and this had been explained to him as ‘imprisonment for the remainder of his life’. It follows that the relevant suggestion by Mr Demetriades does not stand and is dismissed.
On this occasion, I should add that the decision of the Commission on the issue of interpretation of Article 5 § 4 of the Convention is in line with the jurisprudence of the European Court of Human Rights (see De Wilde, Ooms and Versyp v. Belgium (‘Vagrancy’ cases) 18 June 1971, Series A no. 12) ...
The fact that Hogben is a decision of the Commission does not render it less persuasive. It constitutes a decision of a specialised organ with vast experience in interpreting the Convention. It therefore constitutes an authority of great persuasiveness. I am satisfied about the correctness of the Commission’s decision in Hogben, which I have endorsed.
It was further the suggestion of Mr Demetriades that ‘this kind of sentence imposed on the applicant without the possibility of examination by a Parole Board does not conform with Article 3 of the Convention’.
...
I endorse the above approach [in Hogben]. Its essence is that the change in release policy does not constitute a violation of Article 3 of the Convention. The existence or not of a Parole Board does not form part of the ratio of the decision. This answers the suggestion of Mr Demetriades concerning the absence of a Parole Board in Cyprus. Consequently, his suggestion based on Article 3 of the Convention does not stand and is dismissed.
...
Finally, I must note that the applicant has sought his release from prison through an order of habeas corpus. As stated, however, in the case of Doros Georgiades (Civil Appeal no. 11355, 3 October 2002), adopting the relevant position of English jurisprudence (see Halsbury’s Laws of England, 4th edition, Volume 11, §§ 1472 and 1473):
‘In general the writ of habeas corpus will not be granted to persons convicted or in execution under legal process, including persons in execution of a legal sentence after conviction on indictment. The writ of habeas corpus will not be granted where the effect of it would be to review the judgment of one of the superior courts which might have been reviewed on appeal or to question the decision of an inferior court or tribunal on a matter within its jurisdiction; or where it would falsify the record of a court which shows jurisdiction on the face of it.’
Consequently, the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal.”
25. On 26 February 2004 the applicant lodged an appeal with the Supreme Court (appeal jurisdiction).
26. In his grounds of appeal, the applicant challenged the interpretation of the term “life imprisonment” made by the Assize Court when sentencing him in 1989 in view of the prison regulations applicable at the time and the notice given to the applicant by the prison authorities upon his admission to prison. He argued that the fact that he had not challenged his sentence following conviction could not be interpreted as an acceptance of the Assize Court’s interpretation of the term “life imprisonment.” He relied upon, inter alia, Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention in relation to the lawfulness of his continuing detention.
27. As regards Article 3 of the Convention, the applicant claimed that the conduct of the authorities had been contrary to this provision. In particular, ground seven of his appeal read as follows:
“The existence on the date on which the sentence was imposed on the convicted person of the Regulation that defined a sentence of life imprisonment as being twenty years, the issuing of the F5 notice, the admission that the applicant would have been released on 2 November 2002 if the aforementioned Regulation had been applicable and the sudden annulment of all the above constituted inhuman and degrading treatment.
The Republic cannot behave in this way towards the applicant’s life without any consequences for anyone apart from the applicant, who had to live with this uncertainty.
The aforementioned change of twenty years’ imprisonment to imprisonment for life following an error by the House of Representatives and/or the Attorney-General of the Republic and/or the President of the Republic constitutes, without any fault on the applicant’s part, inhuman and degrading treatment which, on account of its uncertainty, violates Article 3 of the Convention.
The aforementioned change from the imposed twenty years’ imprisonment to a death sentence, which will take effect on an unknown date given the fact that there is no possibility of re-examining the matter, constitutes inhuman treatment contrary to Article 3 of the Constitution. Indeed, this becomes even more obvious, when one considers that the death penalty has already been abolished in Cyprus.”
28. Concerning Article 5 § 4 of the Convention, the applicant in ground six of his appeal noted that he was not requesting judicial review of his sentence on account of a change in policy concerning the day of his release but the examination of the lawfulness of his detention, given that even the prison authorities had admitted that he should have been released on 2 November 2002. In this connection, he complained of the lack of a mechanism to examine the lawfulness of his detention.
29. When challenging the Supreme Court’s (first instance) interpretation of Article 7 of the Convention, the applicant distinguished his case from that of Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231), in that Hogben related to the manner of application of the sentence in view of the change in the policy of the parole board whereas in his case the issue raised was that of a retrospective change of the law due to unconstitutionality and the increase of his sentence from twenty years to life. In this connection, he emphasised that in Cyprus there was no parole board unlike in England.
30. On 20 July 2004 the Supreme Court dismissed the appeal. It stated, inter alia:
“The appellant is essentially raising one issue. And his learned counsel has acknowledged that judgment as to this [issue] will determine the conclusion ... We summarise the appellant’s positions as set out in the grounds of appeal as explained.
He does not invoke the Regulations as an autonomous ground for his release, especially since ... they are not applicable any more. Furthermore, he does not suggest or attempt a review of the Assize Court’s judgment, as was wrongly perceived at first instance. We are not going against, as he explained, the Assize Court’s judgment but the Republic as a whole. The Regulations were then applicable at that time and since the Assize Court had not annulled them for being unconstitutional, we must conclude that it considered them valid. And since the law does not provide a definition of the term ‘life imprisonment’, it was an element of the regulation of the sentence provided. As Mr Demetriades put it, the overall legal situation at the time of the imposition of the sentence, indicated that life imprisonment meant in essence twenty years’ imprisonment. In addition, even if there was doubt, this had to be taken to the applicant’s benefit. Hence, in view of this fact, there was no reason to lodge an appeal against the Assize Court’s judgment especially since the applicant had been served with the F5 notice.
...
The suggestion of the appellant presumes that a judicial assessment of unconstitutionality, or, more precisely, that the Regulations are ultra vires in relation to the law on the basis of which they were issued, brings about legislative change of whatever form. However, as has been decided (see Georgios Mavrogenis v. the House of Representatives and Others (1996) 1 A.A.D. 315, at 341 and Alekos N. Clerides v. the Republic of Cyprus, 20 October 2000), judicial assessment necessarily adjudicates retrospectively on the law or regulation and, as the principle of separation of powers dictates, it does not entail a legislative development. It is a fact, however, that this question, both at first instance and before us, has not been touched upon from this point of view so as to raise the issue of Law no. 62(1)/96.
In any event the Assize Court imposed a sentence of life imprisonment on the appellant, expressly specifying that this meant imprisonment for the remainder of his life. This was the reason for which it did not examine the question of possible consecutiveness and the appellant’s perception that it is inferred that the Assize Court recognised the Regulations as valid is wrong. The Assize Court essentially considered that the Regulations were not connected with the issue of the sentence envisaged for it did not consider that the then existent Regulations changed the fact that in accordance with the law, imprisonment for the remainder of the appellant’s life was imposed.
Was this approach wrong? Did in reality the law, viewed as a whole, even in the light of the interpretation suggested by the appellant comparing Article 7 § 1 of the Convention with Article 12 § 1 of the Constitution, envisage imprisonment for only twenty years? We would say that the first-instance judgment was not wrong in finding that this situation corresponded to the one in the case of Hogben. The principle applied, namely that Article 7 § 1 of the Convention does not concern the enforcement of the sentence, which remains one of life imprisonment, is not in question. The Regulations were made on the basis of and for the purposes of the Prison (Discipline) Law, whereas it is the Criminal Code that determines the sentence, in this case mandatory life imprisonment and no other.
Nevertheless, and as Mr Demetriades also agreed, we are not reviewing the correctness of the judgment of the Assize Court. Such review does not fall within the [court’s] jurisdiction in the context of a habeas corpus application.
...
The appellant is being detained on the basis of an Assize Court judgment after being sentenced to life imprisonment, determined as imprisonment for the remainder of his life. Thus, he is being detained on a lawful basis and his application for release was correctly rejected with the final observation that ‘the granting of a habeas corpus order in the present case would have been tantamount to reviewing the sentence that had been imposed by the Assize Court, whereas this could have been done in the context of an appeal’.”
31. Under Cypriot law, the offence of premeditated murder carries a mandatory sentence of life imprisonment.
32. Section 203(1) of the Criminal Code (Cap. 154) (as amended in 1962 by Law no. 3/62) provides as follows:
“Any person who causes the premeditated death of another person by an unlawful act or omission is guilty of the crime of premeditated murder.”
33. Section 203(2) of the Criminal Code (Cap. 154) (as amended in 1983 by Law no. 86/83) provides as follows:
“Any person who shall be convicted of premeditated murder shall be liable to imprisonment for life.”
Before its amendment by Law no. 86/83, the above section provided the mandatory sentence of the death penalty for the offence of premeditated murder.
34. Section 29 of the Criminal Code (as amended by Laws nos. 86/83 and 15(1)/99) provides that, with the exception of premeditated murder and the offence of treason (sections 36 and 37 of the Criminal Code), in cases where a person has been convicted of other serious offences that are punishable by a sentence of imprisonment for life, such as manslaughter (section 205(3) of the Criminal Code), or of any other period, the court trying the case has the discretion to impose a sentence of imprisonment for a shorter period or one of a pecuniary form instead which does not exceed the amount that court is empowered to impose.
35. In the case of Politis v. the Republic of Cyprus ((1987) 2 C.L.R. 116), the Supreme Court examined the constitutionality of sections 29 and 203 of the Criminal Code (at the time the death penalty was still in force), and held as follows:
“The first objective of Article 7 § 2 [of the Constitution] is to sanction the death penalty for the limited class of grave crimes specified therein. The second, to vest competence in the legislature to fix such measure of punishment as mandatory in the exercise of its legislative power ... The expression ‘a law may provide’ in the second part of Article 7 § 2 imports discretion leaving it to the legislature to ordain the death penalty for premeditated murder as a matter of legislative policy. They are not bound but may do so if they deem it appropriate. By necessary implication they may ordain any other fixed measure of punishment including, no doubt, a sentence of life imprisonment. ... Obviously the constitutional legislation singled out the crimes listed in Article 7 § 2 for exceptional treatment in view of their gravity and their repercussions on the well-being of society. In the case of premeditated murder what marks the gravity of the offence is the element of premeditation that necessarily renders the crime particularly heinous. In agreement with the Assize Court, we rule that sections 29 and 203(2) of the Criminal Code are not unconstitutional and as such make a sentence of life imprisonment obligatory upon conviction for premeditated murder.”
36. Article 53 of the Constitution provides as follows:
“1. The President or the Vice-President of the Republic shall have the right to exercise the prerogative of mercy with regard to persons belonging to their respective Community who are condemned to death.
2. Where the person injured and the offender are members of different Communities such prerogative of mercy shall be exercised by agreement between the President and the Vice-President of the Republic; in the event of disagreement between the two the vote for clemency shall prevail.
3. In case the prerogative of mercy is exercised under paragraph 1 or 2 of this Article the death sentence shall be commuted to life imprisonment.
4. The President and the Vice-President of the Republic shall, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General of the Republic, remit, suspend, or commute any sentence passed by a court in the Republic in all other cases.”
37. Following the events of 1963, in particular the withdrawal of Turkish-Cypriots from the government and the consequent occupation of northern Cyprus by Turkish troops, the decision to remit, suspend, or commute any sentence under Article 53 § 4 has to be taken by the President of the Republic with the concurrence of the Attorney-General of the Republic.
38. The Attorney-General may make recommendations or give advice to the President of the Republic concerning the early release of prisoners sentenced to life imprisonment. The President, however, is not bound by such advice or recommendations.
39. The relevant provisions of the Prison Discipline Law of 1879, as applicable at the time the Prison (General) Regulations of 1981 came into force (see paragraph 40 below), read as follows.
“The Governor in Council may make regulations for the proper custody and support of prisoners, for the nature and amount of labour to be performed by them, for the classification of prisoners according to their different sentences, for the punishment of offences committed by prisoners, and for the maintenance of good order and discipline in prisons. All such regulations, before coming into force, shall be published in the Gazette.”
“Regulations made under section 4 may make provision whereby, in such circumstances as may be prescribed by the regulations, a person serving a sentence of imprisonment may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct; and on the discharge of a person from a prison in pursuance of any such remission as aforesaid his sentence shall expire.”
“The Governor may at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Governor may from time to time determine.”
40. The relevant provisions of the Prison (General) Regulations of 1981, made on the basis of section 4 of the Prison Discipline Law (Cap. 286), read as follows.
“No convicted person shall be discharged from the Prison before the expiration of his sentence except as provided by Article 53 § 4 of the Constitution of the Republic of Cyprus.”
“Every prisoner serving a sentence of nine years or more may be granted remission of one half of the sentence, on the ground of good conduct and industry.”
“Where the imprisonment is for life or where a sentence of death is commuted to imprisonment for life, remission of the sentence shall be calculated as if the imprisonment is for twenty years.”
“The date of the expiration of the sentence and the earliest possible date of discharge shall be entered in the personal record of each prisoner and in the discharge book to be kept at the prison, and the Director shall inspect such records and discharge book at frequent intervals so as to ensure that the provisions of this Regulation are strictly complied with.”
“The Director shall submit to the minister for transmission to the Attorney-General of the Republic the name of every prisoner serving a life sentence who has served ten years of such sentence, or of every prisoner serving a sentence exceeding fifteen years who has served eight years of his sentence, who has attained, or is believed in the absence of positive evidence to have attained, the age of 60, for consideration of his case. The Director shall communicate this rule to every such prisoner. Prisoners must be made distinctly to understand that the submission of their name to the minister in no way implies that any remission of sentence will be necessarily granted.”
41. The Prison (General) (Amending) Regulations of 1987 came into force on 13 March 1987 and amended the Prison (General) Regulations of 1981.
42. The following definition of “imprisonment for life” was introduced in Regulation 2:
“In the present Regulations:
...
‘imprisonment for life’ means imprisonment for twenty years.
...”
43. Regulation 93, governing the remission of the sentence of prisoners serving a sentence of life imprisonment, provided as follows:
“(i) Every prisoner serving a sentence of imprisonment for life may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of such sentence.
(ii) The decision on the reduction of the sentence, as well as the extent of such remission for each aforesaid prisoner, shall not be taken unless the said prisoner has served fifteen years of his sentence.”
44. Regulation 96(c) was repealed.
45. In the case of Malachtou v. the Attorney-General of Cyprus ((1981) 1 C.L.R. 543), the Supreme Court stated, inter alia, the following concerning subsidiary legislation:
“... the power for the enactment of subsidiary legislation must, in the nature of things, emanate strictly from the provisions of the enabling law. Any other approach would constitute an encroachment on the legislative powers of the House of Representatives, the body exclusively entrusted with legislative powers, under our Constitution. Subsidiary legislation enacted without just cause will be declared ultra vires ... A body to which power is delegated to legislate must derive authority from the provisions of the enabling enactment; any attempt to bypass or transgress the limits set thereto will be struck down as ultra vires. They cannot infer the existence of any authority to legislate, other than that expressly conferred by law, and must, therefore, confine themselves to the four corners of the enabling enactment. Any relaxation of this approach would certainly undermine the system of separation of powers that pervades our system of law and finds expression in the Constitution.”
46. In the case of Triftarides v. the Republic of Cyprus ((1985), judgment of 16 October 1985), the Supreme Court, when examining the manner of the remission of sentence by the President under Article 53 § 4 of the Constitution with regard to a prisoner serving a ten-year sentence, stated the following:
“... Under Article 53 § 4 of the Constitution the President of the Republic remitted the sentence passed by the Court and not the sentence that would have been served in the light of Regulation 94. This is clear from the wording of Article 53 § 4 which in so far as material on this point says that ‘The President ... remits ... any sentence passed by a court in the Republic ...’.”
47. In its judgment of 5 February 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis (case no. 31175/87) the Nicosia Assize Court, when sentencing the accused for premeditated murder under the Criminal Code, stated, among other things, the following:
“The accused has been sentenced to life imprisonment after being found guilty of premeditated murder. This sentence is imposed by the Court mandatorily; since it is the only one provided by the Criminal Code, Cap. 154, as amended by Law no. 86/83, which also amends section 29 of the Criminal Code, the Court cannot impose another sentence for the crime of premeditated murder. After the abolition by this Law of the death penalty, the legislature provided for the above sentence so it would be in agreement with Article 53 § 3 of the Constitution. This Article provides for the commutation of a death sentence to a sentence of life imprisonment, in the event that the President of the Republic exercises his right of pardon on the basis of § 1 of that Article.
...
Counsel for the accused suggested that the Court should order that the sentence of life imprisonment that was imposed on the accused should run concurrently with the one he is already serving.
...
... [i]n support of his suggestion he referred to the case of R v. Foy (1962) 2 All E.R. 246.
... In contrast, Mr Kyprianou argued that the Court must order that the sentence imposed should be served after the one already being served by the accused because, on the basis of the Regulations of 1987 (Official Gazette of the Republic, Annex 3, Part 1 of 13/3/87), which were made by the Council of Ministers and published in the Official Gazette of the Republic after being put before Parliament, the interpretation of the term ‘life imprisonment’ is given as meaning ‘imprisonment for twenty years’. Regulation 93 of these Regulations provides that a person sentenced to life imprisonment may be granted remission of his sentence on the ground of good conduct and industry, not exceeding in total one-quarter of this sentence. Therefore, Mr Kyprianou continued, the sentence of life imprisonment has been determined at a period of twenty years, or fifteen if the convicted person demonstrates good conduct. Consequently, what Lord Parker said in the case of R v. Foy, on which counsel for the accused relied, does not apply. Mr Kyprianou also showed his concern, as Senior Counsel of the Republic, about the possible cases, such as the present one, where one person commits many murders but is only given one sentence of imprisonment for fifteen or twenty years.
Our opinion is that neither Mr Kyprianou nor Mr Clerides is treating the legal issue correctly.
...
On the basis of everything said by Lord Parker [in the case of R v. Foy (1962) 2 All E.R. 246], life imprisonment means imprisonment for the remainder of the time for which the applicant is alive. Accordingly, and since a sentence of life imprisonment has been imposed on the accused, no other such sentence can follow. Mr Clerides suggests, however, that the court must issue this order, for he is also basing himself on the Regulations of 1987 and is concerned that, since these Regulations are in force, the accused may possibly be released in fifteen years and thus is not facing the danger of serving another prison sentence of fifteen or twenty years, if the second sentence follows the first one.
Article 12 § 1 of the Constitution provides that a court may not impose a longer sentence than that provided for by the law at the time of the commission of the offence. The Criminal Code indeed provides that the sentence of life imprisonment is mandatory and the only sentence following conviction for premeditated murder. In our judgment, the sentence ‘imprisonment for life’ means exactly what is stated by the simple Greek words, that is, imprisonment for the remainder of the biological existence of the convicted person. This interpretation was also given by the Court of Appeal of England in the case of R v. Foy ... As we have already stated, section 203(2) of the Criminal Code is the only provision prescribing the sentence of life imprisonment as mandatory, and this in the light of the provisions of Article 53 § 3 of the Constitution. The Regulations of 1987 were drawn up on the basis of the Prison (Discipline) Law (Cap. 286), which still applies on the basis of the provisions of the Constitution even though it was enacted just when Cyprus became an English colony. The provisions of this law, however, have to be applied in such a way that they comply with the express provisions of the Constitution. We wonder whether these Regulations are not unconstitutional and whether the interpretation of the term ‘imprisonment for life’, which is encountered in the Constitution and the Criminal Code, so as to mean ‘twenty years’, is arbitrary. We say ‘we wonder’ since such an issue has not been raised before us and thus we have no right in this procedure to convey an opinion on this. Another observation that can be made, however, is the following: it appears that the drafters of the Regulations, even if they are valid, did not notice the special provision of section 11 of the above Law (Cap. 286) which concerns life prisoners and provides that they may be released on licence by a decision of the ‘Governor’, which may be revoked. The life sentence is specifically provided for in the above Law to last for life, along the lines of the English legal system. This is why Lord Parker stated what we quoted above. Another issue that is raised, even for the purposes of academic debate, is to what extent a law or regulation can provide for the remission, suspension or commutation of a convicted person’s sentence in view of the express provision of Article 53 § 4 of the Constitution which bestows this privilege on the President of the Republic with the concurrence of the Attorney-General.
It has been established by judicial precedent that when the court imposes a sentence, it does not take into account regulations, even if they are applicable, that allow for the remission of the sentence when a convicted person displays good conduct. The Regulations of 1987 were made in order to serve the purposes to which the court does not refer when passing the sentence, which is determined on the basis of the applicable legislation and the Constitution. It is therefore up to the competent authorities, when and if the matter is raised at the appropriate time, to take into account what we have mentioned above in the form of legal observations. We have already imposed on the accused the sentence that the law envisages, that is, life imprisonment, and we have nothing else to add.”
48. On 16 October 1991, in a letter to the Director of Prisons, through the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis:
“In reply to your letter dated 26 September 1991 and file no. F162/2/a, I would inform you that the convicted person Andreas Aristodimou Yiouroukkis, to whom your letter refers, was sentenced to life imprisonment by the Nicosia Assize Court on 5 February 1988 in criminal case no. 31175/87 and this was interpreted in the Assize Court’s judgment to mean imprisonment for the rest of his biological existence.
This legal approach concerning the nature of life imprisonment was also adopted in a subsequent case, no. 23069/87, by the Limassol Assize Court on 10 March 1989.
In view of the above, the duration of the sentence in the case of a sentence of life imprisonment is not determined and is not reduced in accordance with Regulation 2 and Regulation 93(1) of the Prison (General) Regulations 1981 and 1987 respectively, but the sentence in question is subject to remission or suspension by the President of the Republic, in accordance with Article 53 § 4 of the Constitution, who in exercising his powers, may take into account, among other things, the spirit of the above-mentioned Regulations 2 and 93(1).”
49. On 2 January 1992, in a letter to the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis:
“In reply to your letter dated 3 December 1991 and file no. Y.D. 12.7.01, concerning the duration of the life imprisonment of the convicted person, Andreas Aristodimou Yiouroukkis, I observe the following:
...
In the present case the Nicosia Assize Court, when it imposed the sentence of life imprisonment on the above-mentioned convicted person, interpreted section 203(2) of the Criminal Code, Cap. 154 (as amended, for this purpose, by Law no. 86/83) and judged that life imprisonment means imprisonment for the rest of the convicted person’s biological existence. Consequently, there is a court judgment for the duration of the sentence of the specific convicted person which has not been overruled on appeal and is binding and mandatory for all the authorities of the Republic.
The interpretation of the relevant provision of the Criminal Code given by the Nicosia Assize Court was followed ..., in a subsequent case, by the Limassol Assize Court and since this interpretation has not been questioned by another Assize Court or overruled by the Supreme Court, it must be regarded as the correct judicial interpretation of the Criminal Code provision in question and must be applied in the future to all situations where an accused is sentenced to life imprisonment, even if reference is not made in the judgment to the fact that such imprisonment means imprisonment for the rest of his biological existence.
...
No issue of unequal treatment of prisoners who are serving a sentence of life imprisonment in comparison with prisoners who are serving sentences of a shorter term can be raised, because the sentence of life imprisonment, owing to its nature, differs radically from any other sentence of imprisonment and issues of unequal treatment can arise only when comparing similar, and not dissimilar, things.
Furthermore, there is no possibility of applying secondary legislation, such as the Prison (General) Regulations of 1981 and 1987, when this conflicts with primary legislation such as the relevant provision of the Criminal Code. This is why, to the extent that the Regulations in question conflict with the relevant provision of the Criminal Code as it has been interpreted judicially, they cannot be applied.
...
... when the President of the Republic, in cooperation with the Attorney-General, examines the possibility of remission of the sentence in accordance with Article 53 § 4 of the Constitution, in the case in which the convicted person is serving a sentence of life imprisonment, he will have in mind that the sentence, unless there is a remission, means imprisonment for the remainder of the biological existence of the convicted person .”
50. On 9 October 1992 the Supreme Court (first instance) in the case of Hadjisavvas v. the Republic of Cyprus (see paragraph 19 above) ruled that the Regulations were unconstitutional and ultra vires. The prisoner in that case had also been convicted of premeditated murder and sentenced to life imprisonment. He had submitted a habeas corpus application to the Supreme Court when he was not released on the date that had been given to him as a release date by the prison authorities. The Supreme Court dismissed his application and affirmed that the term “life imprisonment” under the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In particular, the court stated as follows:
“The Criminal Code provides a mandatory sentence for the crime of premeditated murder: ‘... a sentence of imprisonment for life’ (see section 203(2) of the Criminal Code as amended by Law no. 86/83). The constitutionality of this provision of the law was examined in the case of Politis v. Republic (1987) 2 C.L.R. 116 and was held to be correct in the light of the provisions of Articles 7 § 2 and 12 § 3 of the Constitution. The sentence of life imprisonment is not equated by the legislature with a prison sentence for any period of time, neither where it is imposed as a mandatory punitive measure on the basis of section 203(2) nor as a discretionary measure under section 29 of the Criminal Code, Cap. 154. This would anyhow be contrary to the provisions of these two sections of the Criminal Code since life imprisonment is mandatory for the crime of premeditated murder whereas for the purposes of section 29, where life imprisonment is a discretionary measure, the courts have the discretion to impose a sentence of a shorter period. A prison sentence for a period shorter than life imprisonment may comprise a sentence longer than imprisonment for twenty years with which life imprisonment is equated on the basis of Regulation 2 of the Prison Regulations. In the case of Georghios Aristidou v. Republic (1967) 2 C.L.R. 43 the Court of Appeal imposed a sentence of imprisonment of twenty-five years following the commutation of the appellant’s conviction for premeditated murder to manslaughter.
Mr Pourgourides [the applicant’s advocate] suggested that the enactment of the Prison (General) (Amendment) Regulations of 1987 (Regulatory Administrative Act 76/87) by the Council of Ministers with the approval of the Parliament, as provided by the enabling Law for the Submission to the House of Representatives of Regulations issued under the Law of 1985 (no. 51/85) and the Prison Discipline (Amendment) Law of 1983 (no. 85/83) resulted in the amendment of the relevant provisions of the Criminal Code so that a sentence of life imprisonment entailed only imprisonment for twenty years. In support of his position he referred to Bennion, Statutory Interpretation, 2nd edition, pp. 154-55, where it is stated that in the United Kingdom the amendment of secondary legislation by Parliament entails its transformation into primary legislation.
This suggestion ignores:
(a) the fact that the Prison Regulations were made within the scope of the authority granted by the Prison (Discipline) Law and not on the basis of the Criminal Code;
(b) the direct connection between the Regulations of 1987 with the authority granted by section 4 of Cap. 286 and the fact that authority for their issue is drawn exclusively from the provisions of that law;
(c) the strict separation of powers which applies in Cyprus and the restriction of the executive to the enactment of secondary legislation on the basis of express authority which is granted by primary legislation (see Police v. Hondrou & Another, 3 R.S.C.C. 82; Malachtou v. Attorney-General (1981) 1 C.L.R. 543, and Payiatas v. Republic (1984) 3 C.L.R. 1239).
Acceptance of Mr Pourgourides’s position would have, inter alia, as a consequence the involvement of the executive in the enactment of primary legislation in violation of Article 61 of the Constitution and the principle of separation of powers. In President of Republic v. House of Representatives (1985) 3 C.L.R. 2165 and President of Republic v. House of Representatives (1986) 3 C.L.R. 1159, it is noted that the participation of Parliament in the creation of secondary legislation does not transform its nature into primary legislation.
In Republic v. Sampson (Civil Appeal 8532, decided on 26 September 1991) the full bench of the Supreme Court had the opportunity to examine the legal status of the Prison Regulations in relation to the enabling law, the Prison (Discipline) Law, Cap. 286. At the outset we noted that this law was enacted in 1879 and, as with any other colonial law which was in force at the time of the proclamation of the Republic, the provisions of Cap. 286 are applied while being adjusted ‘to the necessary extent to the Constitution’ (Article 188 § 1 of the Constitution). This adjustment, as we have pointed out, is within the competence of the judiciary (see, inter alia, Diagoras Development v National Bank (1985) 1 C.L.R. 581, and United Pibles Societies (Gulf) v. Hadjikakou (Civil Appeal 7413, decided on 28 May 1990).
The adjustment of the provisions of Cap. 286 ensures that its provisions are compatible with the principle of the separation of powers, which constitutes the judiciary as the sole judge of the punishment of offenders (see, inter alia, Politis (cited above) and The District Officer of Nicosia v. Hadjiyiannis, R.S.C.C. 79; The District Officer of Famagusta v. Demetra Panayiotou Antoni, 1 R.S.C.C. 84; The Superintendent Gendarmerie of Lefka v. Christodoulos Antoni Hadjiyianni, 2 R.S.C.C. 21; Morphou Gendarmerie v. Andreas Demetri Englezos, 3 R.S.C.C. 7; The District Officer of Nicosia v. Michael Ktori Palis, 3 R.S.C.C. 27; The District Officer of Famagusta v. Michael Themistocli and Another, 3 R.S.C.C. 47; Nicosia Police v. Djemal Ahmet, 3 R.S.C.C. 50; The District Officer of Kyrenia v. Adem Salih, 3 R.S.C.C. 69; Miliotis v. The Police (1975) 7 J.S.C. 933).
Consequently, to the degree and extent that section 4, in conjunction with section 9, of Cap. 286 confers power for the determination of the duration of a sentence of imprisonment on an authority other than a judicial one, it is contrary to the Constitution and has ceased to be in force following the proclamation of the Republic. Besides, the granting of power to the Director of Prisons to remit the sentence because of good conduct and industry, under the provisions of Regulation 93, is contrary to the principle of the separation of powers, which precludes the involvement of an executive or administrative organ in the determination of the punishment of an offender. The only authority on whom power is conferred by the Constitution to remit, suspend or commute a prison sentence is the President of the Republic, acting with the concurrence of the Attorney General. The examination of the power to make secondary legislation conferred by sections 4 and 9 of Cap. 286 is not directly required in this case, since neither of the two provisions concerns the serving of a sentence of life imprisonment. The serving of life imprisonment is regulated specifically by the provisions of section 11 of Cap. 286, from which it emerges that life imprisonment means imprisonment for the remainder of the life of the convicted person, subject to the right granted to the President of the Republic to suspend the sentence for such period of time as may be fixed on the release of the convicted person on licence. Section 11 of Cap. 286 is in harmony with the Constitution and has maintained its force after the proclamation of the Republic inasmuch as it is consistent with the powers conferred on the President of the Republic by Article 53 § 4 of the Constitution.”
51. The Supreme Court thus concluded that it had not been shown that Mr Hadjisavvas should have been released on the date given or any subsequent date and, consequently, the habeas corpus application was rejected.
52. In 1993 nine life prisoners (eight serving a mandatory life sentence and one a discretionary life sentence) were released on the basis of Article 53 § 4 of the Constitution. Their sentences were commuted to twenty years’ imprisonment and then remitted so as to allow their immediate release. The procedure followed for the release of these prisoners was the same. The following example concerns the case of one such prisoner:
53. In a letter of 28 September 1993 to the President of the Republic, the Attorney-General of the Republic stated the following in relation to a life prisoner:
“Dear Mr President,
Anastasis Savva Politis (convict no. 7035 in the Central Prisons) was sentenced by the Nicosia Assize Court to life imprisonment for premeditated murder.
On the basis of the applicable Prison (General) Regulations 1981 and 1987, it was considered that life imprisonment was equal to imprisonment for twenty years and it was announced to him, the day after he was sentenced, that his sentence would be twenty years’ imprisonment from 26 December 1986.
In the meantime his sentence was reduced to eight years’ imprisonment on account of a presidential pardon in respect of one-fifth of the sentence (four years), on the occasion of the election of the new President of the Republic in 1988, and on account of the remission of eight years for good conduct and industry, in accordance with the Prison (General) Regulations, and the date of his release was determined as 25 December 1994.
On 5 February 1988 the Nicosia Assize Court, in another case, judged that life imprisonment was for the remainder of the biological existence of the convicted person and, hence, on 29 January 1992, I gave the opinion that in such a case the relevant Regulations cannot be applied in a way that would automatically reduce life imprisonment to twenty years’ imprisonment.
In the light of all the above, I suggest that this convicted person’s sentence should be commuted to twenty years’ imprisonment and reduced by four years on the basis of the presidential pardon of 1988 and by such an additional period that he may be immediately released.
The life prisoners Andreas Soteriou Lemonas, and Demetris Xadjisavvas and Demetris Miliotis were afforded the same treatment, the first two in April 1993 and the last-mentioned recently.
I take this opportunity to suggest, on humanitarian grounds, that the sentences of all life prisoners whose date of release was determined, on the basis of the Prison (General) Regulations 1981 and 1987, as falling within the years 1993 and 1994 should be commuted to twenty years’ imprisonment and reduced so they may be released immediately and not kept in a state of agony as to whether they will eventually receive the same treatment.
The next date determined, on the basis of the above Regulations, for release of a life prisoner is the year 2000.
The relevant order is enclosed for your signature in the event that you agree with my above suggestion.”
54. On 28 September 1993 the President of the Republic announced the following in relation to the same life prisoner:
“Because the convicted person Anastasis Savvas Politis (no. 7036) was sentenced, on 27 January 1987, in criminal case no. 537/87, by the Nicosia Assize Court, to life imprisonment for premeditated murder, and
§ 4 of the Constitution, commutation of the sentence to imprisonment of twenty years and its remission so that he may be released immediately;
For this reason, on the recommendation of the Attorney-General of the Republic, by this Order, on the basis of Article 53 § 4 of the Constitution, the convicted person’s sentence is commuted to twenty years’ imprisonment and is remitted so that he is released immediately.”
55. On 29 September 1993 an announcement was made concerning the release of six life prisoners, the relevant part of which stated:
“The President of the Republic, on the basis of recommendations to this end by the Attorney-General of the Republic, and with the opportunity of the first anniversary of the Independence of the Republic of Cyprus during his presidential term, has decided to remit the sentences, so that they are released immediately, of the following life prisoners, who, if their sentences had been assessed on the basis of twenty years’ imprisonment, would have been released in 1993 or 1994: Ian Michael Davison Abdel Hakim Saado El Khalifa Khalet Abdel Kader El Khatib Saadeldin Mohammad Idress Achilleas Georgiou Avraam Anastasis Savva Politis.”
56. On 3 May 1996, the Prison Law of 1996 (Law no. 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law (Cap. 286).
57. The relevant part of section 9(1), governing the release of prisoners, provides as follows:
“No prisoner who is serving a sentence of imprisonment may be discharged from prison until he has served his sentence in accordance with the provisions of this law except in the case provided for by Article 53 § 4 of the Constitution of the Republic or any other law in force.”
58. Section 12(1) of the Prison Law of 1996 provides that, with the exception of prisoners serving a life sentence, a sentence can be remitted if the prisoner demonstrates good conduct and industry. The relevant part reads as follows:
“In accordance with the provisions of this Law, a person who is serving a prison sentence shall obtain remission of his sentence if he displays good conduct and industry, unless a sentence of life imprisonment has been imposed on him.”
59. Section 14 of the Law (as amended by Law no. 12(I)/97), governing the release of prisoners under conditions, provides as follows:
“1. Subject to the provisions of the Constitution, the President of the Republic, with the agreement of the Attorney-General of the Republic, may order by decree the conditional release of a prisoner at any time.
2. A prisoner who is conditionally released by virtue of this section, may, until the expiry of his sentence, be under the supervision and inspection of a person specified in the Decree of Conditional Release and shall conform to whatever other conditions and restrictions are set out in the said Decree.
3. The President of the Republic, with the agreement of the Attorney-General of the Republic, may at any time by a new decree amend or nullify the conditions and restrictions contained in the decree issued by virtue of subsection 1 above.
4. If before the expiry of the sentence of the prisoner who is released, as referred to above, the President of the Republic, with the agreement of the Attorney-General of the Republic, is satisfied that the said person has failed to comply with any valid condition or restriction set out in the decree, he may by a new decree revoke the convicted person’s conditional release and order his return to prison to serve the rest of his sentence.
5. After the convicted person’s return to prison he shall be entitled to the benefits provided in section 12 of this Law only after one year has elapsed from the date of his return to prison and provided that during this year he has displayed industry and good conduct.
6. The period of time from the date of the decree for the release of the prisoner on the basis of this section until the date of its revocation shall be included in the period of the sentence served by the prisoner.
7. A prisoner who does not comply with the decree revoking his release shall be deemed to be a fugitive from lawful detention.”
60. The relevant provisions of the Constitution read as follows.
“No person shall be deprived of his life except in the execution of a sentence of a competent court following his conviction of an offence for which this penalty is provided by law. A law may provide for such penalty only in cases of premeditated murder, high treason, piracy jure gentium and capital offences under military law.”
“No person shall be subjected to torture or to inhuman or degrading punishment or treatment.”
“No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed; and no person shall have a heavier punishment imposed on him for an offence other than that expressly provided for it by law at the time when it was committed.”
“No law shall provide for a punishment which is disproportionate to the gravity of the offence.”
“1. A party to any judicial proceedings, including proceedings on appeal, may, at any stage thereof, raise the question of the unconstitutionality of any law or decision or any provision thereof material for the determination of any matter at issue in such proceedings and thereupon the Court before which such question is raised shall reserve the question for the decision of the Supreme Constitutional Court and stay further proceedings until such question is determined by the Supreme Constitutional Court.
2. The Supreme Constitutional Court, on a question so reserved, shall, after hearing the parties, consider and determine the question so reserved and transmit its decision to the Court by which such question has been reserved.
3. Any decision of the Supreme Constitutional Court under paragraph 2 of this Article shall be binding on the court by which the question has been reserved and on the parties to the proceedings and shall, in case such decision is to the effect that the law or decision or any provision thereof is unconstitutional, operate as to make such law or decision inapplicable to such proceedings only.”
61. Under the Constitution the Attorney-General is an independent officer of the Republic. The relevant parts of Article 112 of the Constitution provide as follows:
“1. The President and the Vice-President of the Republic shall appoint jointly two persons who are qualified for appointment as a judge of the High Court one to be the Attorney-General of the Republic and the other to be the Deputy Attorney-General of the Republic.
...
2. The Attorney-General of the Republic shall be the Head and the Deputy AttorneyGeneral of the Republic shall be the Deputy Head of the Law Office of the Republic which shall be an independent office and shall not be under any Ministry.
...
4. The Attorney-General and the Deputy Attorney-General of the Republic shall be members of the permanent legal service of the Republic and shall hold office under the same terms and conditions as a judge of the High Court other than its President and shall not be removed from office except on the like grounds and in the like manner as such judge of the High Court.
...”
62. Under Article 113 of the Constitution, the Attorney-General is the legal adviser of the Republic and the President:
“1. The Attorney-General of the Republic, assisted by the Deputy Attorney-General of the Republic, shall be the legal adviser of the Republic and of the President and of the Vice-President of the Republic and of the Council of Ministers and of the Ministers and shall exercise all such other powers and shall perform all such other functions and duties as are conferred or imposed on him by this Constitution or by law.
2. The Attorney-General of the Republic shall have power, exercisable at his discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised by him in person or by officers subordinate to him acting under and in accordance with his instructions.”
63. In her report the Commissioner for Administration examined, inter alia, issues concerning life imprisonment. In this context she examined the situation in other member States of the Council of Europe, principally the United Kingdom, Greece and France, vis-à-vis Cyprus. She stated, amongst other things, the following:
“...
Life imprisonment
79. In the Central Prisons there are currently twelve prisoners who have been sentenced to life imprisonment. The matter of the sentence of life imprisonment, in the light of the regime in force, is being discussed both by the House of Representatives and by the competent committee under the aegis of the Ministry of Justice and Public Order, which also had the initiative in promoting the subject. The central component of this process now in progress is the regulating by law of life imprisonment in a way which will give the possibility to those serving life sentences of being released once they have served a significant part of their sentence and previously received the appropriate treatment and preparation. Reservations are expressed about whether such regulating is constitutional.
80. I am of the opinion that the regulating by law of the matter is permitted by the Constitution. It is not a procedure for granting a pardon but the regulating of the serving of a sentence which in no way conflicts with the prerogative of the President of the Republic to remit, commute or suspend a sentence by virtue of Article 53 § 4. In accordance with the separation of powers, the regulating by law of the matter could include, in the case of the imposition by the courts of the sentence of life imprisonment, empowering the same court to fix a minimum term for the sentence which would be served obligatorily before examination of the possibility of the conditional release of the prisoner. I am of the opinion that this minimum term of the sentence should not exceed twenty to twenty-five years. Within the framework of the proposed regulation a committee may be set up with an advisory role which, on the basis of enacted criteria and in accordance with the rehabilitation progress of each prisoner serving a life sentence and the particular circumstances of each case, could recommend conditional release.
...
Conclusions – Recommendations – Suggestions
...
– In relation to the matter of prisoners serving life sentences, I consider essential the acceleration of the process of the regulating by law of the matter in a way which will fix a minimum time-limit for serving the sentence, which will not exceed twenty to twenty-five years, after the expiration of which and according to the circumstances of each case the possibility of the conditional release of a prisoner serving a life sentence can be examined.
...”
64. The following paragraphs contain a summary of the information provided by the Government in the context of the present proceedings as to the position under their domestic law concerning the operation and validity of the 1981 and 1987 Regulations.
65. Prior to the Supreme Court’s judgment in the case of Hadjisavvas v. the Republic of Cyprus (see paragraphs 19, 50 and 51 above), the Regulations – in particular Regulations 2 and 93 – were understood by the executive and administrative authorities of the Republic, including the Prison Service, as imposing a maximum period of twenty years to be served by any person who had been sentenced to life imprisonment. Any prisoner sentenced to life imprisonment after the above Regulations came into force would, in practice, have had a period of five years automatically deducted from the time to be served in prison by way of remission pursuant to Regulation 93. Thereafter, days of remission could be deducted from this five-year period as a consequence of misconduct by the prisoner. It was understood by the Republic’s executive and administrative authorities, including the Prison Service, that a life prisoner’s misconduct could not result in him being detained beyond the twenty-year point. In fact, because of the very limited number of life prisoners in Cyprus and the dates of their respective convictions, no life prisoner had ever reached the point in his sentence when these provisions were applied directly so as to lead to his release. The release of the nine life prisoners in 1993 had been pursuant to Article 53 § 4 of the Constitution in the light of how the Regulations would have operated in their cases.
66. In its judgment in the case of Hadjisavvas, the Supreme Court declared Regulation 93 to be unconstitutional and ultra vires in relation to the enabling primary legislation, namely the Prison Discipline Law. Under Cypriot domestic law, the position was that in proceedings where the constitutionality of subsidiary legislation was raised by a party by way of collateral challenge, the court’s judgment only took effect in relation to the particular subject matter of the proceedings. Thus, the Supreme Court’s judgment in the case of Hadjisavvas, in which the constitutionality of Regulation 93 had been raised as a collateral issue to Mr Hadjisavvas’s habeas corpus application, was only operative so as to determine the ongoing legality of his detention. It also followed from Article 144 § 3 of the Constitution that the above judgment did not operate so as to render Regulation 93 unconstitutional and invalid as against persons other than the parties to that case. In other words, it did not result in Regulation 93 being rendered invalid vis-à-vis other individuals.
67. Because the Supreme Court’s judgment in Hadjisavvas had been binding on the parties to the case, including the executive and administrative authorities of the Republic, Regulation 93 could not thereafter lawfully be applied by the above authorities. Nonetheless, the judgment could not be understood as having retrospective effect such as to impugn the validity of Regulation 93 as it had been applied to other individuals affected by that Regulation. Therefore, the fact that Regulation 93 was declared unconstitutional and ultra vires by the Supreme Court in 1992 did not have retrospective effect such as to render the Regulation void ab initio for all purposes. It did not, for example, render unlawful any action taken pursuant to Regulation 93 between the date of its enactment and the judgment in Hadjisavvas. Accordingly, at the time of the applicant’s offence in July 1987 or at the time he was sentenced in March 1989, Regulation 93 could not have been void or without legal effect in respect of the applicant. After the Hadjisavvas judgment, however, the administrative and executive authorities of the Republic could not lawfully take action, in reliance on Regulation 93, treating it as reducing a life sentence imposed by a court to a maximum of twenty years’ imprisonment since this would have been inconsistent with the Constitution as authoritatively interpreted by the Supreme Court in that judgment.
68. Article 21 of the Council of Europe Convention on the Prevention of Terrorism provides as follows:
“...
3. Nothing in this Convention shall be interpreted either as imposing an obligation to extradite if the person who is the subject of the extradition request risks being exposed to the death penalty or, where the law of the requested party does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested party is under the obligation to extradite if the requesting party gives such assurance as the requested party considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole.”
69. Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners on 17 February 1976 (at the 254th meeting of the Ministers’ Deputies):
“The Committee of Ministers,
...
I. Recommends that the governments of the member States:
...
9. ensure that the cases of all prisoners will be examined as early as possible to determine whether or not a conditional release can be granted;
10. grant the prisoner conditional release, subject to the statutory requirements relating to the time served, as soon as favourable prognosis can be formulated; considerations of general prevention alone should not justify refusal of conditional release;
11. adapt to life sentences the same principles as apply to long-term sentences;
12. ensure that a review, as referred to in 9, of the life sentence should take place, if not done before, after eight to fourteen years of detention and be repeated at regular intervals;
...”
70. In its general report the sub-committee responsible for drafting the resolution stated:
“... it is inhuman to imprison a person for life without any hope of release. A crime-prevention policy which accepts keeping a prisoner for life even if he is no longer a danger to society would be compatible neither with modern principles on the treatment of prisoners during the execution of their sentence nor with the idea of the reintegration of offenders into society. Nobody should be deprived of the chance of possible release. Just how far this chance can be realised must depend on the individual prognosis.”
71. On 30 September 1999 the Committee of Ministers adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation (adopted at the 681st meeting of the Ministers’ Deputies), the relevant part of which provides as follows.
“...
23. The development of measures should be promoted which reduce the actual length of the sentence served, by giving preference to individualised measures, such as early conditional release (parole), over collective measures for the management of prison overcrowding (amnesties, collective pardons).
24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community.
25. In order to promote and expand the use of parole, best conditions for offender support, assistance and supervision in the community have to be created, not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option.
26. Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders, to reduce recidivism, to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options.
...”
72. On 24 September 2003 the Committee of Ministers adopted Rec(2003)22 on conditional release (at the 853rd meeting of the Ministers’ Deputies), the relevant parts of which provide as follows.
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that it is in the Council of Europe member States’ interest to establish common principles regarding the enforcement of custodial sentences in order to strengthen international cooperation in this field;
Recognising that conditional release is one of the most effective and constructive means of preventing reoffending and promoting resettlement, providing the prisoner with planned, assisted and supervised reintegration into the community;
Considering that it should be used in ways that are adapted to individual circumstances and consistent with the principles of justice and fairness;
...
Considering, therefore, that it is desirable to reduce the length of prison sentences as much as possible and that conditional release before the full sentence has been served is an important means to that end;
Recognising that conditional release measures require the support of political leaders, administrative officials, judges, public prosecutors, advocates and the public, who therefore need a detailed explanation as to the reasons for adapting prison sentences;
Considering that legislation and the practice of conditional release should comply with the fundamental principles of democratic States governed by the rule of law, whose primary objective is to guarantee human rights in accordance with the European Convention on Human Rights and the case-law of the organs entrusted with its application;
...
Recommends that governments of member States:
1. introduce conditional release in their legislation if it does not already provide for this measure;
2. be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to this recommendation;
3. ensure that this recommendation on conditional release and its explanatory memorandum are disseminated as widely as possible.
Appendix to Recommendation Rec(2003)22
...
II. General principles
3. Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community.
4(a) In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners.
4(b) If prison sentences are so short that conditional release is not possible, other ways of achieving these aims should be looked for.
5. When starting to serve their sentence, prisoners should know either when they become eligible for release by virtue of having served a minimum period (defined in absolute terms and/or by reference to a proportion of the sentence) and the criteria that will be applied to determine whether they will be granted release (‘discretionary release system’) or when they become entitled to release as of right by virtue of having served a fixed period defined in absolute terms and/or by reference to a proportion of the sentence (‘mandatory release system’).
6. The minimum or fixed period should not be so long that the purpose of conditional release cannot be achieved.
...
IV. Granting of conditional release
Discretionary release system
16. The minimum period that prisoners have to serve to become eligible for conditional release should be fixed in accordance with the law.
17. The relevant authorities should initiate the necessary procedure to enable a decision on conditional release to be taken as soon as the prisoner has served the minimum period.
18. The criteria that prisoners have to fulfil in order to be conditionally released should be clear and explicit. They should also be realistic in the sense that they should take into account the prisoners’ personalities and social and economic circumstances as well as the availability of resettlement programmes.
19. The lack of possibilities for work on release should not constitute a ground for refusing or postponing conditional release. Efforts should be made to find other forms of occupation. The absence of regular accommodation should not constitute a ground for refusing or postponing conditional release and in such cases temporary accommodation should be arranged.
20. The criteria for granting conditional release should be applied so as to grant conditional release to all prisoners who are considered as meeting the minimum level of safeguards for becoming law-abiding citizens. It should be incumbent on the authorities to show that a prisoner has not fulfilled the criteria.
21. If the decision-making authority decides not to grant conditional release it should set a date for reconsidering the question. In any case, prisoners should be able to reapply to the decision-making authority as soon as their situation has changed to their advantage in a substantial manner.
Mandatory release system
22. The period that prisoners must serve in order to become entitled to release should be fixed by law.
...
VIII. Procedural safeguards
32. Decisions on granting, postponing or revoking conditional release, as well as on imposing or modifying conditions and measures attached to it, should be taken by authorities established by law in accordance with procedures covered by the following safeguards:
(a) convicted persons should have the right to be heard in person and to be assisted according to the law;
(b) the decision-making authority should give careful consideration to any elements, including statements, presented by convicted persons in support of their case;
(c) convicted persons should have adequate access to their file;
(d) decisions should state the underlying reasons and be notified in writing.
33. Convicted persons should be able to make a complaint to a higher independent and impartial decision-making authority established by law against the substance of the decision as well as against non-respect of the procedural guarantees.
34. Complaints procedures should also be available concerning the implementation of conditional release.
35. All complaints procedures should comply with the guarantees set out in Rules 13 to 19 of the European rules on community sanctions and measures.
36. Nothing in paragraphs 32 to 35 should be construed as limiting or derogating from any of the rights that may be guaranteed in this connection by the European Convention on Human Rights.
...”
73. On 11 January 2006 the Committee of Ministers adopted Rec(2006)2 on the European Prison Rules (at the 952nd meeting of the Ministers’ Deputies), the relevant part of which provides as follows.
“Part VIII
Sentenced prisoners
Objective of the regime for sentenced prisoners
102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life.
102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.”
“10. Meanwhile, the Parliament has passed amendments to the Penal Code allowing prison sentences to be replaced by community service. The Minister of Justice also disclosed current discussions in the government on the penalty of life imprisonment, with a view to making termination of imprisonment possible subject to certain conditions.”
“11. In her report concerning the detention conditions at the Central Prison in 2004, the Ombudswoman criticised the Cypriot authorities’ interpretation of life sentence as imprisonment for the rest of the convicted person’s life. In most other Council of Europe member States life imprisonment does not entail imprisonment for the rest of the natural life of the convicted person. At the time of the Commissioner’s first visit there were discussions in the government about the possibility of terminating life imprisonment subject to certain conditions. A solution to this question has yet to be found, though. The Deputy Director of the Central Prison spoke of the difficulties in dealing with those currently serving life sentence, fourteen men at the time of the Office’s visit, both in terms of the prisoners’ morale, and security issues. The usual incentives for encouraging good behaviour in prisoners were inevitably of no use in relation to those serving life sentences, and this posed security problems both for the warders and for the other prisoners.”
74. The Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between member States (OJ L 190 of 18 July 2002, p. 1) provides for the execution in any member State of a judicial decision made in another member State for the arrest and surrender of a person for the purpose of criminal proceedings or the execution of a custodial sentence. The relevant parts of Article 5 provide as follows:
“The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing member State, be subject to the following conditions:
...
2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life-time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after twenty years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing member State, aiming at a non-execution of such penalty or measure; ...”
75. The relevant part of Article 77 of the Rome Statute of the International Criminal Court, pertaining to applicable penalties, provides as follows:
“1. Subject to Article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in Article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of thirty years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
...”
76. Article 110, concerning the Review by the International Criminal Court on the reduction of sentences, provides as follows:
“1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court.
2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.
3. When the person has served two-thirds of the sentence, or twenty-five years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.
4. In its review under § 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
(a) The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
(b) The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
(c) Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.
5. If the Court determines in its initial review under § 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.”
VIOLATED_ARTICLES: 7
NON_VIOLATED_ARTICLES: 14
3
5
7
NON_VIOLATED_PARAGRAPHS: 5-1


ITEMID: 001-78886
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: CHAMBER
DATE: 2007
DOCNAME: CASE OF UOTI v. FINLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1962 and lives in Helsinki.
5. On 28 November 1992 a State-owned bank requested the police to investigate whether a former bank director, P., had committed offences as the bank had advanced loans without acceptable guarantees to such an extent that its solvency was endangered. The bank also requested the police to investigate whether P. or some other person had received unlawful financial inducements or whether blackmail had been involved.
6. On 20 August 1993 the bank supplemented its request maintaining that the applicant had possibly committed offences of dishonesty as a debtor, debt fraud or aggravated debt fraud during April-May 1992, as he had allegedly participated in transferring bank shares owned by certain limited liability corporations into his own control, thereby causing one of the corporations’ biggest creditors, the bank, financial losses of approximately 10,000,000 Finnish marks (FIM; equivalent to 1,681,879 euros: EUR).
7. On 8 August 1994 the applicant was arrested. On 10 August 1994 he was questioned by the police for the first time. On 12 August 1994 the Helsinki District Court (käräjäoikeus, tingsrätten) ordered his detention on remand since he was suspected of aggravated blackmail and three counts of dishonesty as a debtor. He was released on 27 September 1994.
8. On 14 July 1995 the police completed their pre-trial investigation. A summons was served on the applicant on 2 February 1996. It was alleged that the offences had been committed between 2 January 1991 and 1 June 1992.
9. On 18 April 1996 the applicant was charged with aggravated fraud and three counts of dishonesty as a debtor. On the same day the Salo District Court upheld the applicant’s claim that he had not been legally summoned to the trial and declared the case against him inadmissible. On 24 September 1996 the Turku Court of Appeal (hovioikeus, hovrätten) upheld the decision. On 20 October 1997 the Supreme Court (korkein oikeus, högsta domstolen) quashed the previous decisions and remitted the case to the District Court. Meanwhile, on 20 August 1997 the District Court also upheld a co-defendant’s claim that he had not been lawfully summoned. On 11 March 1998 the Court of Appeal quashed the decision. On 8 February 1999 the Supreme Court upheld the Court of Appeal’s decision.
10. Meanwhile, at the second hearing on 12 June 1996, the applicant was charged additionally with a count of aggravated fraud and incitement to dishonesty as a debtor. The public prosecutor thereafter added to the charges on several occasions.
11. At the third hearing on 27 August 1996, the acting public prosecutor was found by the District Court to be biased and a new prosecutor was assigned to the case.
12. On 21 January 1998 the District Court upheld the applicant’s claim that he had not been lawfully summoned (as regards a summons delivered on 6 March 1997 to his wife in Spain) and that the statute of limitations had already expired. On 8 October 1998 the Court of Appeal quashed the decision and remitted the case to the District Court. On 3 November 2000 the Supreme Court upheld the Court of Appeal’s decision.
13. Meanwhile, on 30 March 2000 the District Court noted in its minutes that the parties were in disagreement as regards the question whether the “reasonable time” requirement according to Article 6 of the Convention had been fulfilled, and that the court would decide at a later stage on whether the trial could continue.
14. On 18 May 2000 the District Court issued a separate decision dismissing the applicant’s request that the charges against him be declared inadmissible due to the excessive length of the proceedings. It held, inter alia, that the case was exceptionally difficult involving voluminous evidence and that it was of significant public interest.
15. On 19 December 2000 the District Court dismissed the applicant’s renewed request to that effect. On 12 January 2001 he lodged a procedural complaint with the Turku Court of Appeal. It was dismissed on 13 March 2001.
16. There were 28 days of hearings in the District Court up to the end of 2000, held at approximately two to five months’ intervals. There were six days of hearings which concerned the applicant in 2001, four in 2002 and five in 2003.
17. On 14 August 2001 co-defendant X was granted immunity. On 2 December 2002 the Spanish Government consented to the continued prosecution of X in Finland whereupon he challenged the lawfulness of the consent. On 20 August 2003 the District Court gave a decision.
18. On 25 February and 20 August 2003 the District Court dismissed the applicant’s further requests that the charges be ruled inadmissible owing to the length of the proceedings. On 9 February 2004 the District Court also dismissed the request of the applicant’s co-defendants to that effect. The Court of Appeal upheld the last-mentioned decision on 30 June 2004. On 31 August 2004 the District Court dismissed the applicant’s renewed request that the charges be ruled inadmissible owing to the length of the proceedings.
19. During the trial the police conducted at least 12 additional investigations, the last of which, according to the Government, was completed on 28 November 2003.
20. There had been a total of some 50 days of hearings prior to 30 March 2004 when the District Court started to receive evidence. After that there were 38 days of hearings up until the end of October 2004. On 30 December 2004 the Parliamentary Ombudsman, noting at the outset that he lacked competence to interfere with the ongoing proceedings, drew the Government’s attention to the need for the allocation of adequate financial resources to the District Court and to the authorities involved in the case.
21. On 21 March 2006 the District Court gave its judgment. It convicted the applicant of aggravated fraud. It dismissed as time-barred the charges concerning five counts of dishonesty as a debtor. The court found that the “reasonable time” requirement laid down in the Constitution and the Convention had not been respected and that the applicant was therefore entitled to redress. The court noted that it had dismissed as time-barred some of the charges. As the court was not allowed to pass any judgment on the time-barred charges, the redress for the length of the proceedings had to be given in some other way. Accordingly, the applicant’s sentence had to be mitigated. The court considered that the redress had to be significant and, having regard to the exceptionally lengthy nature of the proceedings, it should also be substantial. The court stated that it was taking one third off the applicant’s sentence owing to the breach of the “reasonable time” requirement. Taking an earlier sentence into account, it sentenced the applicant to six months and twenty days’ imprisonment.
22. The case is still pending before the Court of Appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1