Guest post by Kanstantsin Dzehtsiarou (University of Surrey) and Filippo Fontanelli (University of Edinburgh)
On 30 June 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case Khoroshenko v. Russia. With this decision, the Court set the boundaries of State regulation in the area of penitentiary policy, namely with respect to the right to family life of lifelong prisoners. The Court has often declared that Contracting Parties enjoy a broad margin of appreciation in this area, yet the margin has limits: the Court has recently taken upon it the task to map them. The judgment of Khoroshenko v. Russia, indeed, fits within a recent strand of the case law through which the Court has scrutinised the condition of incarceration of prisoners for life.
The applicant is serving a life sentence in Russia. Generally, all prisoners in Russia can receive short- and long-term family visits. For prisoners serving life terms, instead, the law prohibits long-term visits for the first decade of imprisonment (the ‘blanket ban’). According to an article from http://angelsbailbonds.com/, “Long-term visits last up to three days and can be unsupervised; short-term visits last up to four hours, they always take place under the supervision of guards and in rooms set up to exclude all physical contact with visitors (including sexual intimacy).” Mr Khoroshenko challenged before the ECtHR the blanket ban that he endured from 1999 to 2009, invoking Articles 8 and 14 of the ECHR.
Judgment and comments
The Court focused its reasoning on Article 8 (right to family life) and applied the test of proportionality. The Court’s findings have an impact beyond this particular dispute, as States are recommended to follow two principles to avoid violation in each individual case.
First, lifelong prisoners must stand a chance of rehabilitation. We have argued elsewhere that the Court has caused a chain reaction regarding the rights of lifelong prisoners. The trigger was the judgment in the case Vinter v. the United Kingdom, in which the Court held that a life sentence without parole is tantamount to an inhuman treatment, and thus breaches Article 3 of the ECHR. A mechanism that makes the revision of the sentence possible must be available, lest prisoners be deprived also of the right to hope, alongside their personal freedom. All inmates must be able to count on the possibility of release, if ever remote. In light of this possibility, prisoners with whole-life tariffs must benefit from rehabilitation plans, because they might return to society after all. Clearly, maintaining meaningful bonds with families and friends is central to rehabilitation. Therefore, States must ensure that these links are not severed without reason. Life imprisonment alone is not a sufficient reason: only the specific circumstances of each inmate can justify the authorities’ prohibition of long-term visits. In short, Vinter had a knock-on effect on other rights than the one protected under Article 3 ECHR.
Second, flexibility is paramount in penitentiary policies. The Court confirmed that inflexible and undifferentiated rules are easily at odds with the Convention. In casu, the 10-year ban on long-term visits applies to all lifelong prisoners, without any consideration to the dangerousness and personal behaviour of the inmate, nor to the importance of visits for his or her rehabilitation. The Court stated that ‘the State does not have a free hand in introducing restrictions in a general manner without affording any degree of flexibility for determining whether limitations in specific cases are appropriate or indeed necessary’ (para 126). The Court has emphasised the need for individualised penal rules in several cases, most famously in Hirst No 2 v. the UK (regarding a blanket restriction of prisoners’ voting rights).
With these principles in mind, the Court compared the Russian rules with those of other European states, to ascertain whether other regimes are as severe. Whereas The Court acknowledged that ‘[t]here is a considerable variation in practices regarding the regulation of prison visits’, it concluded that ‘Russia appears to be the only jurisdiction within the Council of Europe to regulate the prison visits of all life-sentence prisoners as a group by combining an extremely low frequency of prison visits and the lengthy duration of such a regime’ (para 135). Because it was possible to single out Russia as the Contracting Party with the harshest regime, the Court held that its measures lie outside the margin of appreciation or, better, that the margin itself has narrowed over time (para. 136). Ultimately, the harshness of the blanket ban led the Court to hold it disproportionate (para. 146). As a result the Court unanimously found a violation of Article 8 in this case.
Judges Pinto De Albuquerque and Turković attached a concurring opinion. They offered a number of additional and compelling arguments, which often echo the remarks of the interveners (a group of legal scholars who acted as amici curiae). First, they emphasised more clearly that the primary aim of criminal punishment is rehabilitation, and that the Russian measure was devoid of such an aim. The Grand Chamber judgment did not determine conclusively the goals of the blanket ban, because the proportionality assessment would have found it illegal even if it had possessed a legitimate aim, arguendo. The concurring judges criticised this elusive approach and declared that the lack of legitimate aim should have been sufficient to find a breach at the outset, and that the proportionality analysis was redundant.
They also took issue with the Grand Chamber’s remark that Contracting Parties enjoy a wide margin of appreciation in defining penal policies. For the concurring judges this default stance is inaccurate: since the punishment must be flexible and tailored to the individual, the resulting margin of appreciation is inherently narrow when it comes to general regulations. Whereas the judgment embraces this notion implicitly, the concurring judges articulated it expressly.
Finally, the concurring judges were dissatisfied with an ambiguity of the reasoning of the Grand Chamber, which mentioned certain circumstantial aspects of short visits (e.g., the supervision by guards, the presence of metal bars) to account for the breach of Article 8 ECHR. In the view of Judges Pinto De Albuquerque and Turković the mere fact that family visits were possible only once every six months was per se sufficient to find a breach, and the Court should not have raised the impression that the finding was decisively entailed by the other aspects of severity of the regime. To buttress this point, the concurring opinion pointed to a growing consensus in Europe on a standard of 2 to 4 family visits per month, for all prisoners.
The unanimous judgment of the Grand Chamber in Khoroshenko is another step towards the normalisation of penal policies applying to life-sentence prisoners. It confirms a conceptual shift: life-sentences can no longer entail the “civil death” (and the loss of hope) of the prisoner. On the contrary, rehabilitation must guide the regulation of all aspects of life imprisonment. All restrictions to the Convention rights of life-sentence prisoners require specific justification, and non-rehabilitative goals are recessive in the proportionality analysis.