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Life sentence penalty and extradition under article 3 of the ECHR: A leading case of the European Court of Human Rights

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Abstract

Life sentence penalty covers a diverse range of practices, from the most severe form of life imprisonment without parole, in which a person is sentenced to die in prison so long as their sentence stands, to more indeterminate sentences in which at the time of sentencing it is not clear how long the sentenced person will spend in prison. Dealing with the question whether the extradition of a person to a foreign state where is accused of a crime for which a sentence of life imprisonment can be imposed can potentially violate article 3 of the European Convention on Human Rights. What all these sentences have in common, however, is that at the time the sentence is passed, a person is liable to be detained for the rest of his or her natural life. We all know “The United Nations Standard Minimum Rules” and relevant international instruments on the rehabilitation of imprisonment, but at the moment more than 73 States in the world retain life imprisonment as a penalty for offences committed while under the age of 18. General perspective of criminal justice reform in Latin America should take into a right account the meaning of life - imprisonment penalty under article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment.
www.dx.doi.org/10.21113/iir.v7i1.288
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ILIRIA International Review Vol 7, No 1 (2017)
© FelixVerlag, Holzkirchen, Germany and Iliria College, Pristina, Kosovo
Abstract
Life sentence penalty covers a diverse range of practices,
from the most severe form of life imprisonment without
parole, in which a person is sentenced to die in prison so long
as their sentence stands, to more indeterminate sentences in
which at the time of sentencing it is not clear how long the
sentenced person will spend in prison. Dealing with the
question whether the extradition of a person to a foreign state
where is accused of a crime for which a sentence of life
imprisonment can be imposed can potentially violate article 3
of the European Convention on Human Rights.
What all these sentences have in common, however, is that
at the time the sentence is passed, a person is liable to be
detained for the rest of his or her natural life. We all know “The
United Nations Standard Minimum Rules and relevant
international instruments on the rehabilitation of
imprisonment, but at the moment more than 73 States in the
world retain life imprisonment as a penalty for offences
committed while under the age of 18. General perspective of
criminal justice reform in Latin America should take into a
right account the meaning of life - imprisonment penalty under
article 3 of the European Convention on Human Rights, which
prohibits torture and inhuman or degrading treatment or
punishment.
Dr.Sc. Mario ANTINUCCI
Life sentence penalty and extradition
under article 3 of the ECHR:
A leading case of the European Court of
Human Rights
Mario Antinucci
Dr.Sc. Mario ANTINUCCI
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120
Key words: Life sentences and extradition; Article 3 of ECHR; The UN
standard minimum rules; Rehabilitation of imprisonment; Case law and
leading sentence; The right to hope;
1. The point of Law
In case law of Vinter and Others v. the United Kingdom1 the compliant
claim alleged violation of article 3 of the European Convention of Human
Rights.
Before the Grand Chamber, the applicants maintained their complaints
that their whole life orders were incompatible with Article 3 of the
Convention, which provides as follows: No one shall be subjected to torture
or to inhuman or degrading treatment or punishment.”2
2. Introduction
Since the abolition of the death penalty in England and Wales, the
sentence for murder has been a mandatory sentence of life imprisonment.
Currently, when such a sentence is imposed, the trial judge is required to
set a minimum term of imprisonment, which must be served for the
purposes of punishment and retribution, taking into account the
seriousness of the offence. The principles which guide the trial judge’s
assessment of the appropriate minimum term are set out in schedule 21 to
the Criminal Justice Act 2003. Once the minimum term has been served, the
prisoner may apply to the Parole Board for release on licence.
Exceptionally, however, “a whole life order” may be imposed by the trial
judge instead of a minimum term if, applying the principles set out in
schedule 21, he or she considers that the seriousness of the offence is
exceptionally high.
This case concerns three applicants who, having been convicted of
murder in separate criminal proceedings in England and Wales, are
currently serving mandatory sentences of life imprisonment. All three
applicants have been given whole life orders: in the first applicant’s case
this order was made by the trial judge under the current sentencing
1ECHR, Vinter and Others v. the United Kingdom, judgment (Grand Chamber) of 9 July
2013.
2 M. ANTINUCCI, Internal and international corruption, in Iliria International Review, 2015 1,
Prishtine (Albania).
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provisions; in the case of the second and third applicants, who were
convicted and sentenced prior to the entry into force of the 2003 Act, the
orders were made by the High Court. All three applicants maintain that
these whole life orders, as they apply to their cases, are incompatible inter
alia with Articles 3 and 5 § 4 of the Convention3.
2. Extradition of terrorism suspects
On the 4th of September 2014, the European Court of Human Rights
handed down its judgment in the case of Trabelsi v. Belgium4. Ending a
decade-long debate the Court ruled that Belgium’s extradition of terrorist
suspect Nizar Trabelsi to the United States is a violation of art.3 of the
European Convention of Human Rights (ECHR). In the Court’s view, the
prospect of receiving a life sentence without parole constituted prohibited
inhuman treatment. This case is built on earlier cases on extradition to non-
Convention Parties and raises contentious questions regarding the scope of
art.3 ECHR and the balance between the fight against terrorism and human
rights.
In spite of Trabelsi having already been extradited, in the merits phase
the Court was still to rule on the compatibility of the extradition with art. 3
ECHR in light of the potential life sentence. This was the first time the
Court was called on to pronounce itself on this legal question. That being
said, in two earlier cases, the Court had addressed the permissibility of
whole-life sentences outside an extradition context. In Kafkaris v. Cyprus5, the
Court held that such sentences are prohibited by art. 3 where it could be
shown that the sentence is grossly disproportionate to the crime
committed, that the applicant’s continued imprisonment could no longer be
justified on legitimate penological grounds or that the sentence was de
facto (in practice) or de jure (by law) irreducible (Kafkaris v. Cyprus).
The Court confirmed these principles in Vinter and Others v UK and
added that a whole-life prisoner was 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 takes place or could be
sought (Vinter and Others v. UK).
3 M. ANTINUCCI, La libertà dell’estradando nel regime cautelare d’urgenza, in Giur. it., 2013, 3.
4 ECHR, Trabelsi v. Belgium, judgment (Grand Chamber) of 4 of September.
5 ECHR, Kafkaris v. Cyprus, (Grand Chamber) of 12 of february 2008.
Dr.Sc. Mario ANTINUCCI
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3. Council of Europe texts
A report on “Actual/Real Life Sentences”, prepared by a member of the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (“CPT”), reviewed various Council of
Europe texts on life sentences, including recommendations (2003) 22 and
23, and stated in terms that:
(a) the principle of making conditional release available is relevant to
all prisoners, “even to life prisoners”;
(b) that all Council of Europe member States had provision for
compassionate release but that this “special form of release” was
distinct from conditional release.
The CPT considers therefore that it is inhuman to imprison someone for
life without any real hope of release. The Committee strongly urges
authorities to re-examine the concept of detention "for life" accordingly.”6.
4. International criminal law
Article 77 of the Rome Statute of the International Criminal Court allows
for the imposition of a term of life imprisonment when justified by the
extreme gravity of the crime and the individual circumstances of the
convicted person. Article 110 provides that when a person has served
twenty-five years of a sentence 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 time7. For example in the case Harkins
and Edwards v. the United Kingdom8 both applicants faced extradition
from the United Kingdom to the United States where, they alleged, they
risked the death penalty or life imprisonment without parole. The US
authorities provided assurances that the death penalty would not be
6 A. GAITO, Mandato d'arresto europeo ed estradizione, in Procedura penale, Torino, 2012, 920. ID.,
La vigenza del principio di specialità (a proposito del mandato d’arresto europeo ed estradizione), in
Giur. It., 2004, 7.
7 For a general perspective, M. ANTINUCCI, The new Public Procurement Code within
international relations and anti-corruption policies, Vestnik of Saint-Petersburg University.
Series 14 Law, Issue n. 3, 2016.
8ECHR, Harkins and Edwards v. the United Kingdom, judgement (Grand Chambre) of
17.01.2012.
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applied in their cases and that the maximum sentence they risked was life
imprisonment. Regarding the risk of life imprisonment without parole, the
Court held that there would be no violation of Article 3 (prohibition of
inhuman or degrading treatment) of the Convention if one or the other
applicant was extradited to the United States, finding that neither applicant
had demonstrated that there would be a real risk of treatment reaching the
Article 3 threshold as a result of his sentence. In the first applicant’s case,
the Court was not persuaded that it would be grossly disproportionate for
him to be given a mandatory life sentence in the United States. He had been
over 18 at the time of his alleged crime, had not been diagnosed with a
psychiatric disorder, and the killing had been part of an armed robbery
attempt an aggravating factor. Further, he had not yet been convicted,
and even if he were convicted and given a mandatory life sentence
keeping him in prison might continue to be justified throughout his life
time. And if that were not the case, the Governor of Florida and the Florida
Board of Executive Clemency could, in principle, decide to reduce his
sentence. As regards the second applicant, he faced at most a
discretionary life sentence without parole. Given that it could only be
imposed after consideration by the trial judge of all relevant factors and
only if he were convicted for a pre-meditated murder, the Court concluded
that such a sentence would not be grossly disproportionate.
5. Life sentences in the Contracting States
On the basis of the comparative materials before the Court, following
practices in the Contracting States may be observed.
First, there are currently nine countries where life imprisonment does
not exist: Andorra, Bosnia and Herzegovina, Croatia, Montenegro,
Norway, Portugal, San Marino, Serbia and Spain. The maximum term of
imprisonment in these countries ranges from twenty-one years in Norway
to forty-five years in Bosnia and Herzegovina. In Croatia in a case of
cumulative offences, a fifty-year sentence can be imposed. Second, in the
majority of countries where a sentence of life imprisonment may be
imposed, there exists a dedicated mechanism for reviewing the sentence
after the prisoner has served a certain minimum period fixed by law. Such
a mechanism, integrated within the law and practice on sentencing, is
foreseen in the law of thirty-two countries: Albania (25 years), Armenia
(20), Austria (15), Azerbaijan (25), Belgium (15 with an extension to 19 or 23
Dr.Sc. Mario ANTINUCCI
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years for recidivists), Bulgaria (20), Cyprus (12), Czech Republic (20),
Denmark (12), Estonia (30), Finland (12), France (normally 18 but 30 years
for certain murders), Georgia (25), Germany (15), Greece (20), Hungary (20
unless the court orders otherwise), Ireland (an initial review by the Parole
Board after 7 years except for certain types of murders), Italy9 (26), Latvia
(25), Liechtenstein (15), Luxembourg (15), Moldova (30), Monaco (15),
Poland (25), Romania (20), Russia (25), Slovakia (25), Slovenia (25), Sweden
(10), Switzerland (15 years reducible to 10 years), the former Yugoslav
Republic of Macedonia (15), and Turkey (24 years, 30 for aggravated life
imprisonment and 36 for aggregate sentences of aggravated life
imprisonment). In respect of the United Kingdom, the Court notes that, in
Scotland, when passing a life sentence, a judge is required to set a
minimum term, notwithstanding the likelihood that such a period will
exceed the remainder of the prisoner’s natural life: see the Convention
Rights (Compliance) (Scotland) Act 2001. Third, there are five countries
which make no provision for parole for life prisoners: Iceland, Lithuania,
Malta, the Netherlands and Ukraine. These countries do, however, allow
life prisoners to apply for commutation of life sentences by means of
ministerial, presidential or royal pardon. In Iceland, although it is still
available as a sentence, life imprisonment has never been imposed.
6. General conclusion in respect of life sentences
The 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. 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
9 M. ANTINUCCI, The principles of patrimony due process of law: the punitive confiscation and the
protection of third parties misrelated to the crime, in Iliria International Review, 2015 2,
Prishtine (Albania).
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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.
That 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 Convention10.
Although the requisite review is a prospective event necessarily
subsequent to the passing of the sentence, a whole life prisoner should not
be obliged to wait and serve an indeterminate number of years of his
sentence before he can raise the complaint that the legal conditions
attaching to his sentence fail to comply with the requirements of Article 3 in
this regard. This would be contrary both to legal certainty and to the
general principles on victim status within the meaning of that term in
Article 34 of the Convention. Furthermore, in cases where the sentence, on
imposition, is irreducible under domestic law, it would be capricious to
expect the prisoner to work towards his own rehabilitation without
knowing whether, at an unspecified, future date, a mechanism might be
introduced which would allow him, on the basis of that rehabilitation, to be
considered for release. 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.
7. Concurring opinion of Judge Power-Forde
“I voted with the majority in this case and wish to add the following. I
understand and share many of the views expressed by Judge Villiger in his
partly dissenting opinion. However, what tipped the balance for me in
voting with the majority was the Court’s confirmation, in this judgment,
that Article 3 encompasses what might be described as “the right to hope” . It
10 G. RANALDI, Il procedimento di estradizione passiva, Torino, 2012. ID., La clausola di specialità
dell'estradizione tra presupposto del processo e condizione del procedere, in Giur. It., 2004, 1145
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goes no further than that. The judgment recognises, implicitly, that hope is
an important and constitutive aspect of the human person. Those who
commit the most abhorrent and egregious of acts and who inflict untold
suffering upon others, nevertheless retain their fundamental humanity and
carry within themselves the capacity to change. Long and deserved though
their prison sentences may be, they retain the right to hope that, someday,
they may have atoned for the wrongs which they have committed. They
ought not to be deprived entirely of such hope. To deny them the
experience of hope would be to deny a fundamental aspect of their
humanity and, to do that, would be degrading”.
8. Conclusion
Overall, it appears that the legal world may have been too quick to laud
the arrival of the “right to hope.” We are still some way from gaining
certainty in this area, which was, ironically, the very complaint of the
Grand Chamber in Vinter.
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d’urgenza, in Giur. it., 3.
ANTINUCCI, M., (2013B), Spirito europeo e obiter dictum della Cassazione
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DI MARTINO, A., (2007), Criminalità organizzata e reato transnazionale,
diritto penale nazionale: l'attuazione in Italia della c.d. Convenzione di
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GAITO, A., (2004), La vigenza del principio di specialità (a proposito del
mandato d’arresto europeo ed estradizione), in Giur. It., 2004, 7.
RANALDI, G., (2012), Il procedimento di estradizione passiva, Torino, 2012.
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Full-text available
The purpose of this paper is to analyse the jurisprudence of the European Court of Human Rights (ECtHR) on life sentences and its impacts on extradition cases as well as the importance of the issue for Turkish law. To this end, the paper first examines the international human rights materials on extradition and moves to evaluate the protection provided by Art 3 of the European Convention on Human Rights (ECHR) in detail. Subsequently, it discusses the relevant case law of the ECtHR as to whether or in what circumstances life sentences can be invoked against an extradition. Finally, life without possibility of parole sentences (LWOP) in Turkish law and their possible impacts on extraditions from a Council of Europe country are examined against the background of the developments seen at the level of the ECtHR.
Criminalità organizzata e reato transnazionale, diritto penale nazionale: l'attuazione in Italia della c.d. Convenzione di Palermo
  • Di
  • A Martino
DI MARTINO, A., (2007), Criminalità organizzata e reato transnazionale, diritto penale nazionale: l'attuazione in Italia della c.d. Convenzione di Palermo, in Dir. Pen. e Proc., 2007, 1, 11.
La clausola di specialità dell'estradizione tra presupposto del processo e condizione del procedere
RANALDI, G., (2004), La clausola di specialità dell'estradizione tra presupposto del processo e condizione del procedere, in Giur. It., 2004, 1145.
Mandato d'arresto europeo ed estradizione
  • A Gaito
GAITO, A., (2012), Mandato d'arresto europeo ed estradizione, in Procedura penale, Torino, 2012, 920.