March 17, 2017
Is it permissible for States to categorically exempt women, juveniles and the elderly from being sentenced to life in prison? How should the Court handle the threat that States will ‘level down’ protection after it finds that a given measure is discriminatory? Those were the questions facing the Court’s Grand Chamber as it reached its judgment in Khamtokhu and Aksenchik v. Russia, issued on January 24th. The case concerned the alleged discrimination inherent in the fact that life imprisonment in the respondent State can only be imposed on men between the ages of 18 and 65. The Grand Chamber was divided, and ultimately found no violation of the Convention in the case. When reading the judgment and separate opinions, it emerges that the Court failed to find that gender discrimination had taken place for a very specific reason: doing so would have brought about the (re-)introduction of life imprisonment for the excepted groups.
The Facts of the Case
The Russian Criminal Code, in its Article 57 § 1, provides for the imposition of life imprisonment for certain crimes; in its § 2, the provision prohibits the application of such punishment on women, juveniles and persons over the age of 65. Before the Court, the applicants – who are both serving life sentences – argued under Article 14 ECHR (prohibition of discrimination), taken in conjunction with Article 5 ECHR (right to liberty and security), that they had suffered discrimination on the basis of age and gender vis-à-vis groups who were legally exempted from life imprisonment. Crucially, in its submissions to the Court, the respondent Government stated that it understood the applicants’ claims as seeking the end of age- and gender-related exemptions from life sentences (thus, a ‘leveling down’ of protection), as opposed to the abolishment of such sentences altogether (‘leveling up’) (§ 42 of the judgment).
The case was relinquished to the Grand Chamber on 1 December 2015.
The Third Party Intervention
The NGO Equal Rights Trust intervened as a third party, arguing that the domestic measure impermissibly discriminated on the basis of age and gender and did not represent acceptable “positive discrimination” given that it “was not temporary and did not pursue any objective linked to the equality of opportunity or treatment” (§ 50). Neither was it established that that a blanket exemption of persons over the age of 65 represented a proportionate way to avoid unduly harsh punishment. The NGO argued that paternalistic, stereotyped or generalized measures were inappropriate and that, according to the principle of not ‘leveling down’, simply removing the exemptions would not remedy the situation: only an individualized assessment of the appropriate sentence for particular offenders would serve that purpose.
The Merits of the Grand Chamber’s Judgment
The Grand Chamber applied its existing case-law to find that, while Article 5 ECHR does not preclude the application of a life sentence, the case fell within the ambit of the provision (§§ 53-60, citing Vinter and Others v. the United Kingdom, §§ 104-106). Examining the merits of the complaint under Article 14 taken together with Article 5, the majority held that there had indisputably been a difference in treatment between persons in analogous positions on the basis of sex and age (§ 69). The question, then, was whether the measure was proportionate to a legitimate aim.
The majority accepted as legitimate the aim put forth by the Government, namely the promotion of “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” (§ 70). As to the proportionality of the measure to this aim, the majority noted that life imprisonment is imposed only in severe cases and is never a mandatory sentence (§§ 71-75). The majority further noted that the applicants’ sentences were imposed by means of an individualized assessment and that they would be eligible for parole after 25 years; it also recognized a State margin of appreciation (§ 77). The majority argued that, on the one hand, distinctions based on sex must be justified by particularly serious reasons and cannot be justified based on “traditions, general assumptions or prevailing social attitudes” or stereotypes; on the other, it is not the Court’s place to determine the appropriate punishment for a given crime (§ 78).
As concerns the age discrimination claim, the majority held that the difference in treatment was proportionate. Regarding minors, it highlighted the need to protect and rehabilitate juvenile offenders (§ 80); regarding elderly offenders, it found that their exemption served to provide them with a realistic prospect of release (§ 81).
Regarding the difference in treatment vis-à-vis female offenders, the Court relied on the internationally recognized need to protect women from abuse and violence in detention and on “the needs for protection of pregnancy and motherhood” (§ 82). It also relied on data indicating that far fewer women are imprisoned in Russia than men, and that life sentences are seldom ordered (ibid.). On this basis, the Court emphasized the subsidiarity of its role and found “that there exists a public interest underlying the exemption of female offenders from life imprisonment by way of a general rule” (ibid.). The Court also noted the absence of a European consensus concerning the imposition of life imprisonment (§§ 85-86) and considered the exemption of certain groups from life sentences to represent “social progress” (§ 86). Ultimately, the Court held (by sixteen votes to one) that there had been no age discrimination and (by ten votes to seven) that there had been no gender discrimination in the case.
The Six Separate Opinions
In his concurring opinion, Judge Sajó provided alternative reasoning for finding that there had been no sex discrimination in the case, arguing that male and female criminals are not in analogous positions because of the differences between the criminality of men and women (§ 5). He also argued that
“the same period of imprisonment for a woman is more painful than for a man, perhaps because, typically, a woman is deprived of the possibility of giving birth to a child, and in particular raising a child. This may sound like a simple gender stereotype, although many people would argue that there are biological differences and specificities of the female brain” (§ 7).
In their respective concurring opinions, Judges Nussberger, Turković and Mits each basically argued that, as ‘leveling down’ would reverse the trend to gradually abolish life sentences, and would leave no group better off, and given that ‘leveling up’ was unachievable in this case, they voted with the majority.
In their joint partly dissenting opinion, Judges Sicilianos, Møse, Lubarda, Mourou-Vikström and Kucsko-Stadlmayer, who voted for a finding of sex discrimination, noted that the majority had neglected the “very weighty reasons test”. They then argued that no such reasons were present, and that a large majority of States does not generally exempt women from life imprisonment. Thus, they voted for a Convention violation, arguing that the vulnerability of individuals should be taken into account by the sentencing judge.
In his dissenting opinion, Judge Pinto de Albuquerque convincingly argued that, “without minimising the fundamental importance of the fight against discrimination suffered by women on grounds of their sex, that protection should not serve as a pretext for constantly viewing women as victims which would be damaging to their cause and would end up being counterproductive” (§ 8). Though recognizing the need to protect juvenile offenders, he argued that there is no reason to categorically exempt women or persons over 65 from facing life sentences. He contended, furthermore, that the only permissible result of a violation judgment would be to ‘level up’ – ‘leveling down’ protection after a finding of discrimination is, he argued, incompatible with the human rights project. He then formulated an argument against the permissibility of life imprisonment under human rights law.
In the past weeks, I have found myself repeatedly discussing the Court’s approach to this case and the problems raised by the judgment itself and by the separate opinions appended thereto. The following comments, like those discussions, will focus particularly on the gender discrimination claim before the Court.
A number of judges, in their dissenting opinions, made reference to the complicated nature of this case. It is true, of course, that the Court’s past judgments concerning gender discrimination in Russia have not been particularly welcome in the domestic context. In addition, the Court’s concern about a leveling down of protection resulting in the exposure of even more people to lifelong imprisonment under potentially terrible conditions is comprehensible. However significant, these are considerations that are by and large extrinsic to the question of whether there has been discrimination on the basis of gender in this case. And therein lies the rub: the majority reached this judgment on the basis of arguments that place politics over principle and put resistant States in a position to avoid a violation judgment in comparable future discrimination cases by threatening to level down protection. This is a very slippery slope indeed.
This outcome is particularly problematic given that the judgment is rife with gender stereotypes, and that it therefore legitimizes views of women – such as the one expressed by Judge Sajó in his concurring opinion – as victims or as characterized by the “specificities of the female brain”, as well as imagining our diverse gender as a homogenous mass of mothers and vulnerable individuals. The worrying thing here is that, as the separate opinions and the third party intervention in this case show, the need to avoid stereotyping and paternalism was part of the discussion when the judgment was being drafted, but these arguments could not convince the majority.
Life imprisonment may indeed be inappropriate in many cases. However, categorically excluding women – and not, for example, homosexual prisoners, who are also likely to suffer in detention, or fathers, who also have an interest in being with their children – does not adequately address this issue. It can be asked, to contest the argument made repeatedly in the judgment and in the separate opinions, whether a distinction made on the basis of gender stereotypes really constitutes “progress”. It should be noted, in this regard, that the Court has not acknowledged women in the Council of Europe as a vulnerable group in any general terms, but has instead focused on particular situations that give rise to vulnerability, for example regarding victims of domestic violence or pregnant women. Here, however, the Court limited its perspective to the choice between a rock and a hard place instead of searching for a solution that would provide for individualized sentencing without reinforcing gender stereotypes.
 In this regard, I would inter alia like to thank the members of the Human Rights Centre’s ‘Strasbourg Club’ along with Severin Meier and Prof. Dr. Daniel Moeckli for their interesting takes on the case.