CASE OF KHAMTOKHU AND AKSENCHIK v. RUSSIA

1. The case originated in two applications (nos. 60367/08 and 961/11) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Aslan Bachmizovich Khamtokhu and Mr Artyom Aleksandrovich Aksenchik (“the applicants”), on 22 October 2008 and 11 February 2011 respectively.
2. The applicants were represented by Ms N. Yermolayeva, Ms A. Maralyan, Ms E. Davidyan and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.
3. The applicants, who had been sentenced to life imprisonment, complained that they were subjected to discriminatory treatment vis-à-vis certain other categories of convicted offenders who were exempt from life imprisonment by operation of law.
4. The applications were allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 27 September 2011 a Chamber of that Section decided to give notice of the above complaints to the Government and declared the remainder of the applications inadmissible. On 13 May 2014 a Chamber of that Section, composed of Isabelle Berro ‑ Lefèvre, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, and Dmitry Dedov, judges, and also of Søren Nielsen, Section Registrar, decided to join the proceedings in the applications (Rule 42 § 1) and declared the case partly admissible. On 1 December 2015 a Chamber of the former First Section, composed of András Sajó, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turković, and Dmitry Dedov, judges, and also of André Wampach, Deputy Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, André Potocki, substitute judge, replaced Julia Laffranque, who was unable to take part in the further consideration of the case (Rule 24 § 3).
6. The applicants and the Government each filed further written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from Equal Rights Trust, a non-governmental organisation based in London, the United Kingdom, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3).
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 20 April 2016 (Rule 59 § 3).
There appeared before the Court:
(a) for the GovernmentMr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, Ms O. Ocheretyanaya, Adviser;
(b) for the applicantsMs A. Maralyan, Ms N. Yermolayeva, Ms E. Davidyan, Counsel, Ms K. Moskalenko, Adviser.
The Court heard addresses by Ms Maralyan, Ms Yermolayeva, Ms Davidyan and Mr Matyushkin, and their answers to questions put by the Court.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicants, Mr Khamtokhu and Mr Aksenchik, were born in 1970 and 1985 respectively. They are currently serving life sentences in the Yamalo-Nenetskiy Region of Russia.
A. Criminal proceedings against the first applicant
9. On 14 December 2000 the Supreme Court of the Adygea Republic found the first applicant guilty of multiple offences, including escape from prison, attempted murder of police officers and State officials, and illegal possession of firearms, and sentenced him to life imprisonment.
10. On 19 October 2001 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal.
11. On 26 March 2008 the Presidium of the Supreme Court of the Russian Federation quashed the appeal judgment of 19 October 2001 by way of supervisory review and remitted the matter for fresh consideration.
12. On 30 June 2008 the Supreme Court of the Russian Federation upheld the first applicant’s conviction on appeal. The court reclassified some of the charges against him but the life sentence remained unchanged.
B. Criminal proceedings against the second applicant
13. On 28 April 2010 the Tomsk Regional Court found the second applicant guilty on three counts of murder and sentenced him to life imprisonment.
14. On 12 August 2010 the Supreme Court of the Russian Federation upheld that conviction on appeal.
15. The 1960 Criminal Code of the Russian Soviet Federative Socialist Republic (RSFSR) provided that capital punishment could not be imposed on anyone below the age of 18 or on a woman who was pregnant either at the time of the offence or at the time of judgment (Article 23). The alternative to the death sentence was fifteen years’ imprisonment. There was no provision for life imprisonment.
On 29 April 1993 the RSFSR Criminal Code was updated and the exemption from capital punishment in Article 23 was extended to all women, and to young offenders and offenders aged 65 or over.
The Criminal Code of the Russian Federation, which has replaced the RSFSR Criminal Code since 1 January 1997, adopted a more detailed inventory of penalties. It provides for up to twenty years’ imprisonment (Article 56), life imprisonment (Article 57) and capital punishment (Article 59). Women, young offenders below the age of 18 and offenders aged 65 or over are exempted, in identical terms, from both life imprisonment and capital punishment (Articles 57 § 2 and 59 § 2). By way of a pardon, capital punishment can be commuted to life imprisonment or twenty-five years’ imprisonment (Article 59 § 3). In 2009 the Constitutional Court imposed an indefinite moratorium on capital punishment in Russia (for the text of the decision, see A.L. (X.W.) v. Russia, no. 44095/14, § 51, 29 October 2015).
16. Article 57 (“Life imprisonment”) reads as follows:
“1. Life imprisonment may be imposed for particularly serious offences against life and ... public safety.
2. Life imprisonment may not be imposed on women, persons who were under eighteen years of age at the time they committed the offence or men who were sixty-five or older at the time the conviction was pronounced.”
17. A court may pronounce the offender sentenced to life imprisonment eligible for early release after the first twenty-five years provided that he has fully abided by the prison regulations throughout the previous three years (Article 79 § 5).
B. Case-law of the Constitutional Court
18. The Constitutional Court has consistently declared inadmissible complaints about the alleged incompatibility of Article 57 § 2 of the Criminal Code with the constitutional protection against discrimination. The most recent reiteration of its settled position can be found in its judgment of 25 February 2016 and reads as follows:
“A ban on imposing life sentences or capital punishment on certain categories of offenders cannot be seen as a breach of the principle of equality before the law and the courts (Article 19 of the Constitution) or a breach of Russia’s international legal commitments. It is justified by the need to take into account the age and social and physiological characteristics of such individuals on the basis of the principles of justice and humanity in the criminal law with a view to attaining, in a more comprehensive and efficient way, the objectives of criminal punishment in a democratic State based on the rule of law. According to the case-law of the Constitutional Court, the ban does not prevent [courts] from meting out just punishment to other categories of offenders which corresponds to the gravity of the crime committed, the circumstances of its commission and the personality of the offender; it does not undermine their rights and, accordingly, is not discriminatory against them (decisions no. 638-O-O of 21 October 2008, no. 898-O-O of 23 June 2009, no. 1382-O-O of 19 October 2010, no. 1925-O of 18 October 2012, and no. 1428-O of 24 September 2013).”
19. According to the information available to the Court, there are currently nine member States of the Council of Europe where life imprisonment does not exist: Andorra, Bosnia-Herzegovina, Croatia, Montenegro, Norway, Portugal, San Marino, Serbia and Spain. In the rest of the world, many Central and South American countries (Bolivia, Colombia, Costa Rica, Dominican Republic, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, El Salvador, Uruguay and Venezuela) have abolished life imprisonment, with some exceptions during wartime.
20. A comparative survey of the sentencing guidelines in thirty-seven member States of the Council of Europe in which offenders may be sentenced to life imprisonment reveals that all of them establish a special sentencing regime for juveniles or young adults, whether by way of including special provisions in the Criminal Code or enacting specific legislation dealing with juvenile delinquents. Life imprisonment of offenders below the age of 18 years is prohibited in thirty-two member States; Austria, Liechtenstein, the former Yugoslav Republic of Macedonia and Sweden extend the prohibition to young adults up to the age of 21, and Hungary includes those who had not yet turned 20 at the time the offence was committed.
21. As regards older offenders, four member States, not including Russia, establish a specific sentencing regime: an offender who has reached retirement age (Azerbaijan), the age of 60 (Georgia) or 65 (Romania and Ukraine) cannot be sentenced to life imprisonment. In Romanian law, the maximum sentence in such a case may not exceed thirty years’ imprisonment.
22. As regards gender-related distinctions, the criminal law of Albania, Azerbaijan and Moldova – in addition to Russia – imposes a blanket ban on life imprisonment for women. Armenian and Ukrainian criminal law prohibits courts from imposing life sentences on women who were pregnant at the time of the offence or at the time of sentencing, and a similar provision can be found in the Bulgarian Criminal Code, which exempts pregnant female offenders from life imprisonment without parole.
IV. RELEVANT INTERNATIONAL INSTRUMENTS
23. Article 6 § 5 of the International Covenant on Civil and Political Rights provides:
“Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.”
24. Article 37 (a) of the Convention on the Rights of the Child provides:
“States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age ...”
25. The Committee on the Rights of the Child, in General comment No. 10 (2007), recommended:
“Given the likelihood that a life imprisonment of a child will make it very difficult, if not impossible, to achieve the aims of juvenile justice despite the possibility of release, the Committee strongly recommends the States parties to abolish all forms of life imprisonment for offences committed by persons under the age of 18.”
26. The United Nations General Assembly adopted Resolution A/RES/67/166 on Human Rights in the Administration of Justice on 20 December 2012, urging States –
“... to ensure that, under their legislation and practice, neither capital punishment nor life imprisonment without the possibility of release ... is imposed for offences committed by persons under 18 years of age, and ... to consider repealing all other forms of life imprisonment for offences committed by persons under 18 years of age.”
B. Protection of women and motherhood
27. For the text of Article 6 § 5 of the International Covenant on Civil and Political Rights, see paragraph 23 above.
28. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) reads in the relevant parts:
“1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.”
29. The UN Rules for the Treatment of Women Prisoners and Non-custodial measures for Women Offenders (the Bangkok Rules):
“Considering that women prisoners belong to one of the vulnerable groups that have specific needs and requirements ...”
“The accommodation of women prisoners shall have facilities and materials required to meet women’s specific hygiene needs ... in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating.”
“1. Gender-specific health-care services at least equivalent to those available in the community shall be provided to women prisoners.”
“Clear policies and regulations on the conduct of prison staff aimed at providing maximum protection for women prisoners from any gender-based physical or verbal violence, abuse and sexual harassment shall be developed and implemented.”
“1. Pregnant or breastfeeding women prisoners shall receive advice on their health and diet ...”
30. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted Recommendation Rec(2006)2 to member States on the European Prison Rules, which replaced Recommendation No. R (87) 3 on the European Prison Rules accounting for the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe. The amended European Prison Rules read in particular as follows:
“13. These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
34.3. Prisoners shall be allowed to give birth outside prison, but where a child is born in prison the authorities shall provide all necessary support and facilities.”
31. The European Parliament’s Resolution of 13 March 2008 on the particular situation of women in prison recommends:
“14. (...) that the imprisonment of pregnant women and mothers with young children should only be considered as a last resort and that, in this extreme case, they should be entitled to a more spacious cell, and an individual cell if possible, and should be given particular attention, especially in terms of diet and hygiene; considers, furthermore, that pregnant women should receive antenatal and postnatal care and parenting classes of a standard equivalent to those provided outside the prison environment.”
ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5
32. The applicants complained that the fact that they had been sentenced to life imprisonment exposed them to discriminatory treatment on account of their sex and age, in breach of Article 14 of the Convention, taken together with Article 5. The relevant parts of these provisions read:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court ...”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
33. The applicants submitted that the different and less favourable treatment under Article 57 of the Criminal Code of the group to which they belonged – men aged 18 to 65, as opposed to all women and to men aged under 18 or over 65 – with respect to life sentences constituted unjustified difference in treatment on the basis of gender and age. The applicants pointed out that they were not seeking universal application of life sentences to all offenders, including women, and men aged under 18 or over 65. Rather, they claimed that, having decided that imprisonment for life was unjust and inhuman with respect to those groups, the Russian authorities should likewise refrain from subjecting men aged 18 to 65 to life imprisonment.
34. As regards the gender-related difference in treatment, the applicants considered that the difference in the sentencing of male and female offenders had no reasonable or objective justification. It was the product of an outdated and traditionalist view of the social role of women and was not founded on any scientific evidence, statistical data or generally accepted legal principles. Women’s allegedly special role in society, which related, above all, to their reproductive function and childrearing, did not amount to a sufficient ground for treating female offenders more favourably than male ones. Irrespective of the biological differences between men and women, both sexes participated in caring for, protecting and supporting their children. National laws did not differentiate between the rights and obligations of a mother and a father in a child’s upbringing. The Court had found that gender stereotypes, such as the perception of women as primary child-carers could not, in themselves, be considered to amount to sufficient justification for a difference in treatment (here the applicants referred to Konstantin Markin v. Russia [GC], no. 30078/06, § 143, ECHR 2012 (extracts)). In any event, the difference in sentencing would not achieve the purported objective of the protection of motherhood because a difference between a thirty-year prison sentence and a life sentence could not be decisive for a woman’s reproductive ability if, in either case, she was bound to spend the childbearing years of her life in prison.
35. The applicants saw little merit in the Government’s assertion that women were more psychologically vulnerable than men and were affected to a greater degree by the hardships of detention. In the absence of any scientific basis for that generalisation, this was yet another stereotype: that of “male toughness”. The applicants did not dispute the fact that imprisonment was an ordeal, but it was an ordeal for both men and women, and both sexes included individuals of varying degrees of vulnerability.
36. The applicants acknowledged that the physiological characteristics of certain categories of women – and at specific times, for example during pregnancy, breastfeeding or childrearing – could constitute a reasonable and objective justification for a difference of treatment. However, Article 57 of the Criminal Code assumed that there were universal physiological characteristics that differentiated male and female offenders for all purposes and at all times. The excessive breadth of the Government’s differentiation became striking in comparison with generally recognised norms in which only specific factors relating to women were taken into consideration. Thus, Article 6 § 5 of the International Covenant on Civil and Political Rights (ICCPR) prohibited capital punishment of pregnant women because of considerations relating to their unborn child. In the same way, Article 76 § 3 of the First Protocol Additional to the 1949 Geneva Conventions (Relating to the Protection of Victims of International Armed Conflict) sought to prohibit the pronouncement and execution of the death penalty on women who were pregnant or had dependent infants.
37. The applicants asserted that Article 57 of the Criminal Code, which laid down a permanent and immutable distinction between offenders on the basis of their sex, even if every other aspect of their circumstances was identical, did not pursue any legitimate aim. By making this distinction as a matter of law, rather than, for example, allowing the judge to take account of gender as an element in exercising sentencing discretion, a relationship of proportionality between the means employed and the aim sought to be realised was lacking. To the extent that particular circumstances relating to gender could legitimately be taken into account, there was no need for institutionalised gender-based distinctions, since the courts could consider personal circumstances, including family status and child-support needs and obligations, in the framework of the general principles of sentencing policy under Russian law when deciding on the appropriate punishment for both men and women.
38. As regards age-related differences in sentencing, the applicants acknowledged the existence of international human rights standards which prohibited imposing the most severe criminal sanctions on young offenders (they referred in particular to Article 6 § 5 of the ICCPR and Article 37(a) of the Convention on the Rights of the Child). Of those, Article 37(a) was the only provision directly applicable to the case in so far as it prohibited sentencing juvenile offenders to life imprisonment without a right to release on parole; however, it was still not relevant in the Russian context where any category of convicted prisoners sentenced to life imprisonment, regardless of their age, could be released on parole after twenty-five years.
39. Age-related differences in sentencing could be necessary if persons aged 65 or over were to be treated as a vulnerable social group who had an underdeveloped or weakened capacity to control their conduct or foresee the consequences of their actions. Yet there were no scientific studies demonstrating diminished responsibility in all persons aged over 65. If all persons over 65 were to be considered irresponsible, the fact that such individuals were eligible under Russian law to hold important public offices, including that of judges of the Constitutional Court up to the age of 75, undermined the validity of the age-related generalisation. Furthermore, taking into account that the average life expectancy was 65 years for Russian men and that those statistics did not reflect the poor conditions of detention in Russian prison facilities which must further reduce life expectancy for inmates, the effect of a life sentence on a forty-year-old offender was hardly any different from that on a sixty-five-year-old: both had illusory chances of early release on parole. Thus, the age-limit established at 65 years was arbitrary, especially taking into account that the retirement age was set at 55 years for women and 60 years for men.
40. On the issue of age differences, the applicants agreed, lastly, that juvenile offenders belonged to a socially and psychologically vulnerable group and were in need of special protective measures dictated by humane considerations. This did not mean, however, that other age groups should be discriminated against and deprived of such protection. For older offenders, the age could in certain cases be seen as a mitigating circumstance – as allowed by Article 61 § 2 of the Criminal Code – and persons who developed serious illnesses after committing an offence could be exempted from punishment (Article 81 § 2 of the Criminal Code).
41. In conclusion, the applicants pointed out that there was an emerging international trend towards the abolition of life imprisonment, observing that some twenty-five countries worldwide did not have recourse to life imprisonment for any category of offenders. In their view, even assuming that a life sentence could be the appropriate form of punishment in certain circumstances, it should not be imposed according to gender, age or age-group characteristics but solely in relation to the particular circumstances of the offence and the personality of the offender. The applicants submitted that a high degree of individualisation of punishment should be part of contemporary sentencing policy and that individualisation should be used as a general principle instead of institutionalised gender- and age-related discrimination.
42. The Government claimed that the applicants were not victims of any violation of the Convention since their convictions had been “lawful” within the meaning of Article 5 § 1 (a). In their view, what the applicants sought was a change in the Russian criminal law which would allow others, including women, young offenders and offenders aged 65 or over, to be given harsher sentences, while the applicants’ personal situation would remain the same. The Government pointed out that a finding of a violation of Article 14 would not constitute a ground for reviewing individual sentences or for completely abolishing life imprisonment in Russia.
43. The Government submitted that a review of the Court’s case-law considering the issue of life imprisonment from the standpoint of Article 3 of the Convention demonstrated the compatibility of Russian law – which provided for the right to release on parole also in cases where life imprisonment had been imposed – with the Convention. Life imprisonment could be imposed in a majority of States worldwide and, according to the Government, only six member States of the Council of Europe had abolished it. In Russia life imprisonment was a penalty for the most serious crimes but was always accompanied by alternative penalties and never applied automatically. The Government emphasised that the Contracting States should be allowed a margin of appreciation in deciding on the appropriate length of prison sentences for particular crimes (they referred to László Magyar v. Hungary, no. 73593/10, § 46, 20 May 2014).
44. Referring to the consistent case-law of the Russian Constitutional Court, the Government submitted that, inasmuch as Article 57 of the Criminal Code provided that female offenders and offenders below the age of 18 or over the age of 65 could not be sentenced to life imprisonment, it was based on the principles of justice and humanity which required that the sentencing policy take into account the age and “physiological characteristics” of various categories of offenders. The restrictions concerning those categories of offenders did not affect the sentencing of other offenders, in respect of whom the sentences reflected the nature of the crime and the danger posed to the public by it, the circumstances in which it was committed, and the personality of the offender. In the Government’s view, the case-law of the Constitutional Court reflected the requirements of international law concerning a differentiated approach to punishment according to the offender’s sex and age. They referred, as regards juvenile offenders, to Article 37 of the Convention on the Rights of the Child, the position of the Committee on the Rights of the Child and that of the Human Rights Council, the UN General Assembly’s Resolution of 9 November 2012 [1] and other international instruments, as well as to the fact that a vast majority of member States had abolished life imprisonment for children. As to offenders aged 65 or over, the Government pointed out that life imprisonment of 65-year-olds would make them eligible for release on parole only at the age of 90, which was an illusory possibility having regard to life expectancy.
45. The Government further pointed out that international law provided for a more humane approach towards women, while the UN Convention on the Elimination of All Forms of Discrimination against Women stated that special measures aimed at protecting maternity were not to be considered discriminatory (CEDAW) (Article 4 § 2). They referred to certain scientific studies according to which women constituted a minority of detainees worldwide. Women were often the primary carers of children before incarceration and up to 90 percent of them had a history of domestic abuse which contributed to their criminal conduct and emphasised their vulnerability. According to the Government, Russia was not the only State that did not sentence women to life imprisonment; other States included Albania, Armenia, Azerbaijan, Belarus and Uzbekistan. The Ukrainian Parliament had adopted, at first reading, a draft law exempting women from life sentences.
46. Russian law established as a general rule that a life sentence could be imposed for particularly serious crimes against life and public safety. The prohibition on sentencing female and juvenile offenders and offenders aged 65 or over to life imprisonment was an exception to the rule. This exception did not infringe the rights of the majority of convicted prisoners, but rather established a privileged approach to sentencing for specific groups of individuals. It could be described as “positive inequality” designed to make up, by legal means, for the naturally vulnerable position of those social groups. In the Government’s submission, the concept of discrimination referred only to unjustified restrictions. In that sense, there was no discrimination in the applicants’ case, and their grievances were of an abstract nature because their sentences had been determined in accordance with the gravity of the crimes they had committed and did not put them at any disadvantage vis-à-vis women, juveniles or persons aged 65 or over.
47. On the issue of whether a difference in treatment was reasonably proportionate to the legitimate aim pursued, the Government submitted that age-related restrictions were necessary because juveniles and persons aged 65 or over were vulnerable social groups who had an underdeveloped or weakened capacity to understand the implications of their conduct, to control it or to foresee the consequences of their actions. They were prone to impulsive, unconsidered behaviour that could result in criminally reprehensible conduct. As to women, the sentencing exception was justified in view of their special role in society which related, above all, to their reproductive function. The Russian Constitutional Court had previously held that a different retirement age for men and women was justified not only by physiological differences between the sexes but also by the special role of motherhood in society, and did not amount to discrimination but rather served to reinforce effective, rather than formal, equality.
48. In sum, the Government believed that, given the biological, psychological, sociological and other particular features of female offenders, young offenders and offenders aged 65 or over, sentencing them to life imprisonment and their incarceration in harsh conditions would undermine the penological objective of their rehabilitation. Besides, the exception concerned in reality a small number of convicted persons. In Russia, as of 1 November 2011, only 1,802 offenders had been sentenced to life imprisonment. Of the total number of 533,024 prisoners, only 42,511 were female.
49. The third party, Equal Rights Trust, submitted that, with the exception of provisions relating to juvenile offenders, blanket rules which exempted particular groups from life imprisonment could not be justified under Article 14. In support of its submission, the third party referred to international human rights law and regional and domestic law and practice.
50. The third party indicated that references to “positive discrimination” in the context of this case were misplaced and not in accordance with the meaning of this notion in international law. Positive action was a necessary element of the right to equality and it included a range of measures to overcome past disadvantage. The measures taken must be designed to address the disadvantage identified and the State must be able to show on what basis they had concluded that the measures chosen would attain that objective. However, a blanket exemption of women from a certain type of sentence was not temporary and did not pursue any objective linked to the equality of opportunity or treatment. Article 4(2) of the CEDAW was a narrow provision relating to treatment of pregnant women and new mothers and could not be used to justify a difference in treatment of women on the basis of biological difference outside that context or to justify differences in treatment based on a perceived social role of women as mothers. Special measures for pregnant women and new mothers must be limited to what was strictly necessary (reference was made to Johnston v. Chief Constable of the Royal Ulster Constabulary, ECJ, Case C-222/84, 15 May 1986, §§ 44-46). Courts had consistently rejected arguments based on paternalism and perceptions that women were more “vulnerable” than men and in need of “protection” (they referred to Karlheinz Schmidt v. Germany, no. 13580/88, 18 July 1994, § 28, Series A no. 291 ‑ B, concerning the exemption of women from service compulsory for men on the basis of women’s “physical and mental characteristics”, and Emel Boyraz v. Turkey, no. 61960/08, § 52, 2 December 2014, concerning the restriction of recruitment of security officers to men due to risks and night-time work).
51. As regards offenders aged 65 or over, the third party submitted that age discrimination was prohibited under all key international treaties. Creating distinctions between people above and below a particular age was inherently problematic, requiring a high degree of evidence and justification. Generalisation as to a measure’s ability to achieve a legitimate objective was insufficient ( Age Concern England, ECJ, Case C-388/07, 5 March 2009, § 51). Even if it was shown that a life sentence would more often be considered unduly harsh in the cases of persons aged over 65 than persons under 65, a blanket exemption was not necessarily a proportionate means of achieving the aim of avoiding harsh sentences. Age was not binary and any distinctions on the basis of age, where a cut-off point was identified, could call for a comparative analysis of State practice and scientific evidence when considering whether a measure was justified.
52. Regarding ways of remedying the existing situation, the third party submitted that if a State, acting at its discretion, decided that a life sentence was “inhumane” if imposed on certain groups, and this was found to be in violation of Article 14, the principle of “no levelling down” would mean that a State could not remedy that discrimination by simply removing the more favourable treatment from the protected groups. In accordance with international legal principles and customary international law, the implementation of decisions of international tribunals should not abolish, restrict, or limit existing rights (reference was made to Article 53 of the Convention). Once the State had reduced the limitations on the right to liberty of a group of persons, it could not justify the reversal of this progress by reference to its obligation under the Convention. Instead, the third party submitted that, in order to comply with Article 14, the State should adopt an individualised approach to sentencing, which took into account, among other things, the offender’s particular characteristics. An individualised approach would allow for a more nuanced calibrating of sentencing to the specific vulnerabilities of narrowly defined categories of individuals, as opposed to the overly broad and therefore arbitrary distinctions on the basis of gender or age.
1. Applicability of Article 14 in conjunction with Article 5
(a) Whether the facts of the case fall “within the ambit” of Article 5
53. The Court reiterates that Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. However, the application of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention, and to this extent it is autonomous. A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe the Article when read in conjunction with Article 14, for the reason that it is of a discriminatory nature. Accordingly, for Article 14 to become applicable, it suffices that the facts of the case fall “within the ambit” of another substantive provision of the Convention or its Protocols (see Clift v. the United Kingdom, no. 7205/07, § 41, 13 July 2010; Kafkaris v. Cyprus [GC], no. 21906/04, § 159, ECHR 2008; and Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits), 23 July 1968, pp. 33-34, § 9, Series A no. 6).
54. The Court observes that the applicants did not complain about the severity of punishment as such or the length of their sentence or allege a violation of their substantive right to liberty. They complained that their sentences had deprived them of their liberty for life and that, under Article 57 of the Criminal Code, they had been treated less favourably than women or than other men aged under 18 and over 65 convicted of similar or comparable crimes, because of their gender and age, in violation of Article 14 taken in conjunction with Article 5 of the Convention.
55. Both applicants were deprived of their liberty after conviction by a competent court, an eventuality that is explicitly covered by Article 5 § 1 (a) of the Convention. The Court reiterates that matters of appropriate sentencing fall in principle outside the scope of the Convention, it not being its role to decide, for example, what is the appropriate term of detention applicable to a particular offence (see Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § 105, ECHR 2013 (extracts); Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001 ‑ VI; T. v. the United Kingdom [GC], no. 24724/94, § 117, 16 December 1999; and V. v. the United Kingdom [GC], no. 24888/94, § 118, ECHR 1999 ‑ IX, and, by contrast, as regards a manifestly disproportionate punishment for ill-treatment, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007; Okkalı v. Turkey, no. 52067/99, § 73, ECHR 2006 ‑ XII (extracts); Derman v. Turkey, no. 21789/02, § 28, 31 May 2011).
56. At the same time the Court has expressed the view that measures relating to the execution of a sentence or to its adjustment can affect the right to liberty protected by Article 5 § 1, as the actual duration of deprivation of liberty depends on their application, among other things (see Del Río Prada v. Spain [GC], no. 42750/09, § 127, ECHR 2013, and Stafford v. the United Kingdom [GC], no. 46295/99, §§ 55-83, ECHR 2002 ‑ IV). Similarly, again in the context of the execution of a criminal sentence, in a case concerning eligibility of a life prisoner for parole, the Court considered that “although Article 5 § 1 (a) of the Convention does not guarantee a right to automatic parole, an issue may arise under that provision taken together with Article 14 of the Convention if a settled sentencing policy affects individuals in a discriminatory manner” (see Gerger v. Turkey [GC], no. 24919/94, § 69, 8 July 1999; see also, to the same effect, Clift, cited above, § 42).
57. It is also noteworthy that, in contrast to the cases mentioned above but similarly to the one under review, in certain instances it is the criminal sentencing measure itself – rather than its execution – decided pursuant to domestic legal provisions differentiating between offenders according to age and gender which has been found to give rise to an issue under Article 14 of the Convention taken together with Article 5 (see Nelson v. the United Kingdom, no. 11077/84, Commission decision of 13 October 1986, which concerned allegations of discrimination based on age, and A.P. v. the United Kingdom, no. 15397/89, Commission decision of 8 January 1992 (striking-out), which concerned differences in sentencing of male and female young offenders).
58. Article 5 of the Convention does not preclude the imposition of life imprisonment (see Vinter and Others, cited above, §§ 104 to 106), where such punishment is prescribed by national law. However, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see E.B. v. France [GC], no. 43546/02, § 48, 22 January 2008; Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 40, ECHR 2005-X; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94).
59. It follows that where national legislation exempts certain categories of convicted prisoners from life imprisonment, this falls within the ambit of Article 5 § 1 for the purposes of the applicability of Article 14 taken in conjunction with that provision.
60. Accordingly, in so far as the applicants complained about the allegedly discriminatory effect produced by the sentencing provisions in Article 57 of the Criminal Code, the Court finds that the facts of the case fell “within the ambit” of Article 5 of the Convention.
(b) Whether the alleged difference in treatment related to any of the grounds in Article 14
61. Article 14 does not prohibit all differences in treatment, but only those differences based on an identifiable, objective or personal characteristic, or “status”, by which individuals or groups are distinguishable from one another. It lists specific grounds which constitute “status” including, inter alia, sex, race and property. However, the list set out in Article 14 is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”) and the inclusion in the list of the phrase “any other status” (in French “toute autre situation”). The words “other status” have generally been given a wide meaning, and their interpretation has not been limited to characteristics which are personal in the sense that they are innate or inherent (see Clift, cited above, §§ 56-58; Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 61 and 70, ECHR 2010; and Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976, § 56, Series A no. 23).
62. The applicants contended that Article 57 of the Russian Criminal Code established a sentencing policy which differentiated on the basis of sex and age with regard to life imprisonment. The Court notes that “sex” is explicitly mentioned in Article 14 as a prohibited ground of discrimination and that it has previously accepted that “age” is also a concept covered by this provision (see Schwizgebel v. Switzerland, no. 25762/07, § 85, ECHR 2010 (extracts), and Nelson, cited above).
63. In the light of the above considerations, the Court finds that Article 14 of the Convention taken in conjunction with Article 5 is applicable in the present case.
2. Compliance with Article 14 of the Convention taken in conjunction with Article 5
64. According to the Court’s settled case-law, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous or relevantly similar situations. Such a difference of treatment is discriminatory if it has no objective and reasonable justification, in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The notion of discrimination within the meaning of Article 14 also includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali, cited above, § 82; Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013 (extracts); and Biao v. Denmark [GC], no. 38590/10, § 90, ECHR 2016).
65. As to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has demonstrated a difference in treatment, it is for the Government to show that it was justified (see Biao, cited above, § 92, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 177, ECHR 2007 ‑ IV).
(b) Whether the applicants were in an analogous or relevantly similar position to other offenders
66. The Court must first determine whether or not there was in the instant case a difference of treatment of persons in analogous or relevantly similar situations.
67. The applicants’ complaint relates to the sentencing of offenders who have been found guilty of particularly serious crimes punishable with imprisonment for life. The applicants were given life sentences, whereas a female or juvenile offender or an offender aged 65 or over convicted of the same or comparable offences would not have been given a sentence of life imprisonment because of the explicit statutory prohibition in Article 57 § 2 of the Criminal Code (see paragraph 16 above).
68. It follows that the applicants were in an analogous situation to all other offenders who had been convicted of the same or comparable offences. By contrast, the Gerger case was an example of a different kind of situation: in so far as convicted terrorists were not entitled to parole until they had served three quarters of their sentence, unlike prisoners sentenced for ordinary criminal offences, the Court held that “the distinction [was] made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity” (see Gerger, cited above, § 69, see also, in the same vein, Kafkaris, cited above, § 165, in which the Court did not accept that a prisoner serving a life sentence was in an analogous or relevantly similar position to other prisoners who were not serving life sentences).
(c) Whether the difference in treatment was justified
69. The present case concerns a sentencing policy which exempted female offenders, juvenile offenders and offenders aged 65 or over from life imprisonment. It cannot be disputed that this exemption amounted to a difference in treatment on grounds of sex and age. It falls next to the Court to examine whether this difference of treatment pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised. In doing so it must also have regard to the margin of appreciation the respondent State enjoys in this context.
70. The Government maintained that the difference of treatment was intended to promote the principles of justice and humanity which required that the sentencing policy take into account the age and “physiological characteristics” of various categories of offenders (see paragraph 44 above). The Court takes the view that this aim may be regarded as legitimate in the context of sentencing policy and for the purposes of applying Article 14 in conjunction with Article 5 § 1.
71. As regards the proportionality of the means employed, it must first be recalled that the present case concerns one specific type of penalty: life imprisonment. By contrast with various non-custodial or fixed-term prison sentences, life imprisonment is reserved in the Russian Criminal Code for the few particularly serious offences in respect of which, after taking into account all the aggravating and mitigating circumstances, the trial court is satisfied that a life sentence is the only punishment that would befit the crime. Life imprisonment is not a mandatory or automatic sentence for any offence, no matter how serious it might be.
72. The imposition of life sentences for especially serious crimes on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 99, ECHR 2016; Vinter and Others, cited above, § 102; and Kafkaris, cited above, § 97). This is particularly so when such a sentence is not mandatory but is imposed by an independent judge after he or she has considered all of the mitigating and aggravating factors which are present in any given case (see Vinter and Others, cited above, § 106).
73. The Court has on numerous occasions indicated that the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today (see Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Kress v. France [GC], no. 39594/98, § 70, ECHR 2001 ‑ VI; and Austin and Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, § 53, ECHR 2012). The Court has also pointed out that any interpretation of the rights and freedoms guaranteed has to be consistent with the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic state (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 118, ECHR 2014 (extracts)). As a consequence, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 1953. Progress towards the complete de facto and de jure abolition of the death penalty within the member States of the Council of Europe is an illustration of this ongoing evolution. The territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment and the Court has accepted that exposing an applicant to a real risk of being sentenced to death and executed elsewhere may give rise to an issue under Article 3 of the Convention (see Soering v. the United Kingdom, 7 July 1989, §§ 102-104, Series A no. 161; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, §§ 115-18 and 140-43, ECHR 2010; and A.L. (X.W.) v. Russia, no. 44095/14, §§ 63-66, 29 October 2015).
74. The situation with regard to life imprisonment is different. As matters currently stand, life imprisonment as a form of punishment for particularly serious offences remains compatible with the Convention. The idea that the imposition of a life sentence on an adult offender may raise an issue under Article 3 on account of its irreducible character is relatively recent (see Kafkaris, cited above, § 97). In Vinter and Others (cited above), the Court drew the following conclusion:
“119. ... [T]he Court considers that, in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.
120. However, the Court would emphasise that, having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing ..., it is not its task to prescribe the form (executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place. This being said, the Court would also observe that the comparative and international law materials before it show clear support for the institution of a dedicated mechanism guaranteeing a review no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter ....
121. It follows from this conclusion that, where domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.
122. ... A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.”
75. As can be seen from the above, the Contracting States are in principle free to decide whether a life sentence constitutes appropriate punishment for particularly serious crimes but their discretion in this respect is not unfettered and is subject to certain minimum requirements. The Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; see also Maaouia v. France [GC], no. 39652/98, § 36, ECHR 2000-X, and Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). It follows that where a State, in the exercise of its discretion, takes measures aimed at complying with such minimum requirements, or furthering the aims thereof, this will weigh heavily in assessing the proportionality of the measures in question in the context of Article 14 in conjunction with Article 5.
76. The applicants were sentenced to life imprisonment following an adversarial trial during which they were able to submit arguments in their defence and to state their view on the appropriate punishment. Although they had initially alleged that the criminal proceedings against them had been marred by procedural deficiencies, the Court, after careful consideration of their complaints, rejected them as unsubstantiated (see the decisions of 27 September 2011 and 13 May 2014 in paragraph 4 above). The outcome of the applicants’ trials was decided on the specific facts of their cases and their sentences were the product of individualised application of criminal law by the trial court whose discretion in the choice of appropriate sentence was not curtailed on account of the requirements prescribed in paragraph 2 of Article 57 of the Criminal Code. In these circumstances, in view of the penological objectives of the protection of society and general and individual deterrence, the life sentences imposed on the applicants do not appear arbitrary or unreasonable. Moreover, the applicants will be eligible for early release after the first twenty-five years provided that they have fully abided by the prison regulations in the previous three years (Article 79 § 5 of the Criminal Code); accordingly, no issues comparable to those in the above-cited judgments of Vinter and Others or, more recently, Murray arise in the instant case.
77. The Court reiterates that the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, but the final decision as to the observance of the Convention’s requirements rests with the Court (see Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012 (extracts); Stec and Others, cited above, §§ 63-64; and Ünal Tekeli v. Turkey, no. 29865/96, § 54, ECHR 2004 ‑ X (extracts)).
78. On the one hand, the Court has repeatedly held that differences based on sex require particularly serious reasons by way of justification and that references to traditions, general assumptions or prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, origin, colour or sexual orientation (see Konstantin Markin, cited above, § 127; X and Others v. Austria [GC], no. 19010/07, § 99, ECHR 2013; Vallianatos and Others, cited above, § 77; and Hämäläinen v. Finland [GC], no. 37359/09, § 109, ECHR 2014). On the other hand, as the Court has also stated, it is not its role to decide what is the appropriate term of detention applicable to a particular offence or to pronounce on the appropriate length of detention or other sentence which should be served by a person after conviction by a competent court (see Vinter and Others, cited above, § 105; see also T. v. the United Kingdom, cited above, § 117; V. v. the United Kingdom, cited above, § 118; and Sawoniuk, cited above).
79. An additional factor relevant for determining the extent to which the respondent State should be afforded a margin of appreciation is the existence or non-existence of a European consensus. Since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within the respondent State and within Contracting States generally and respond, for example, to any emerging consensus as to the standards to be achieved (see, mutatis mutandis, Schwizgebel, cited above, §§ 79-80; Dickson v. the United Kingdom [GC], no. 44362/04, § 81, ECHR 2007-V; Fretté v. France, no. 36515/97, § 40, ECHR 2002 ‑ I; and Petrovic v. Austria, 27 March 1998, § 38, Reports 1998 ‑ II; see also Biao, cited above, §§ 131-33).
80. Firstly, the Court sees no reason to question the difference in treatment of the group of adult offenders to which the applicants belong, who are not exempted from life imprisonment, as compared to that of juvenile offenders who are so exempted. Indeed, the exemption of juvenile offenders from life imprisonment is consonant with the approach that is common to the legal systems of all the Contracting States, without exception, namely the abolition of life imprisonment for offenders considered juveniles under their respective domestic laws (see paragraph 20 above). The said exemption is also consistent with the recommendation of the Committee on the Rights of the Child to abolish all forms of life imprisonment for offences committed by persons below the age of 18 and with the UN General Assembly’s Resolution inviting the States to consider repealing all forms of life imprisonment for such persons (see paragraphs 25 and 26 above). Its purpose is evidently to facilitate the rehabilitation of juvenile delinquents. The Court considers that when young offenders are held accountable for their deeds, however serious, this must be done with due regard for their presumed immaturity, both mental and emotional, as well as the greater malleability of their personality and their capacity for rehabilitation and reformation.
81. Secondly, in so far as the applicants complained of being treated differently from offenders aged 65 or over – the other age group exempted from life imprisonment – it is to be noted that, according to the above-mentioned Vinter principles, a life sentence will be compatible with Article 3 only if there is a prospect of release and a possibility for review (both of which must exist from the time of imposition of the sentence). Against the background of this Convention requirement, the Court sees no grounds for considering that the relevant domestic provision excluding offenders aged 65 or over from life imprisonment had no objective and reasonable justification. As can be seen from the material before the Court, the purpose of that provision in principle coincides with the interests underlying the eligibility for early release after the first twenty-five years for adult male offenders aged under 65, such as the applicants, noted in Vinter as being a common approach in national jurisdictions where life imprisonment can be imposed (see paragraph 74 above). Reducibility of a life sentence carries even greater weight for elderly offenders in order not to become a mere illusory possibility. By limiting the imposition of life sentences through providing for a maximum age limit, the Russian legislature used one among several methods at its disposal for securing a prospect of release for a reasonable number of prisoners and thus acted within its margin of appreciation in line with Convention standards.
82. Thirdly, in so far as the applicants felt aggrieved by being treated differently from adult female offenders of the same age group as theirs (18 to 65) and who were exempted from life imprisonment on account of their gender, the Court has taken note of various European and international instruments addressing the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood (see paragraphs 27 to 30 above). The Government provided statistical data showing a considerable difference between the total number of male and female prison inmates (see paragraph 48 above). They also pointed to the relatively small number of persons sentenced to life imprisonment (ibid.). It is not for the Court to reassess the evaluation made by the domestic authorities of the data in their possession or of the penological rationale which such data purports to demonstrate. In the particular circumstances of the case, the available data, as well as the above elements, provide a sufficient basis for the Court to conclude that there exists a public interest underlying the exemption of female offenders from life imprisonment by way of a general rule.
83. It is further observed that, beyond the consensus not to impose life imprisonment on juvenile offenders and to provide for a subsequent review in those jurisdictions which do so for adult offenders (see Vinter and Others, cited above, § 120), there is little common ground between the domestic legal systems of the Contracting States in this area. Whilst life imprisonment does not exist in nine Contracting States, either because no such sentences are available or because they have been abolished at some point in time (see paragraph 19 above), a majority of the Contracting States have opted for retaining the possibility of sentencing offenders for life in cases of particularly serious crimes. Within the latter group, there is no uniformity as to the age up to which the exemption from life imprisonment applies; many States have fixed the age at 18 years, in others it varies between 18 and 21 years (see paragraph 20 above).
84. The disparity in approach to other groups of offenders which Contracting States have chosen to exempt from life imprisonment is even more salient. Some Contracting States have established a specific sentencing regime for offenders who have reached the age of between 60 and 65 (see paragraph 21 above). Other Contracting States have decided to exempt female offenders who were pregnant at the time of the offence or at the time of sentencing from life sentences. Yet another group of States, including Russia, have extended this approach to all female offenders (see paragraph 22 above).
85. The Court considers it quite natural that the national authorities, whose duty it is also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy broad discretion when they are asked to make rulings on sensitive matters such as penal policy. Moreover, the area in question should still be regarded as one of evolving rights, with no established consensus, in which States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (compare Schalk and Kopf v. Austria, no. 30141/04, § 105, ECHR 2010). Since the delicate issues raised in the present case touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, a wide margin of appreciation must be left to the authorities of each State.
86. It therefore appears difficult to criticise the Russian legislature for having established, in a way which reflects the evolution of society in that sphere, the exemption of certain groups of offenders from life imprisonment. Such an exemption represents, all things considered, social progress in penological matters (compare Petrovic, cited above, § 41). The situation obtaining in the instant case is different from that in those cases where the Court was able to note a widespread and consistently developing consensus and associated legal changes to the domestic laws of Contracting States concerning a specific issue (compare Konstantin Markin, cited above, § 140; Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 104, ECHR 1999 ‑ VI; and Vallianatos and Others, cited above, § 91). The Court is unable to discern an international trend in favour of abolishing life imprisonment or, on the contrary, confirming positive support for it. It notes however that life imprisonment in Europe has become limited in the sense of the requirement of reducibility of the sentence (see Vinter and Others, cited above, § 119) which may in future require further positive obligations on the part of the member States (see, for example, Murray, cited above, §§ 124 ‑ 125). In the absence of common ground regarding the imposition of life imprisonment, the Russian authorities have not overstepped their margin of appreciation. Notwithstanding a more favourable position in which the perpetrators of offences comparable to those committed by the applicants have found themselves, the legislation on whose basis the punishments were served on the applicants and which is being challenged by them is not in breach of the applicable international law or markedly at variance with the solutions adopted by other member States of the Council of Europe in this sphere (compare Schwizgebel, cited above, § 92).
87. In sum, while it would clearly be possible for the respondent State, in pursuit of its aim of promoting the principles of justice and humanity, to extend the exemption from life imprisonment to all categories of offenders, it is not required to do so under the Convention as currently interpreted by the Court. Moreover, in view of the practical operation of life imprisonment in the Russian Federation, both as to the manner of its imposition and to a possibility of subsequent review, the interests of the society as a whole as far as they are compatible with the Convention and having regard to the wide margin of appreciation which the Court has found that the respondent Government enjoy in this context, the Court is satisfied that there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. It concludes that the impugned exemptions did not constitute a prohibited difference in treatment for the purposes of Article 14 taken in conjunction with Article 5. In reaching this conclusion, the Court has taken full account of the need to interpret the Convention in a harmonious manner and in conformity with its general spirit.
88. In the light of the above considerations, the Court finds that there has been no violation of Article 14 of the Convention, taken in conjunction with Article 5, whether in respect of the difference in treatment on account of age, or in respect of the difference in treatment on account of sex.
1. Holds, by sixteen votes to one, that there has been no violation of Article 14 of the Convention, taken in conjunction with Article 5, as regards the difference in treatment on account of age;