Lewis Graham is a PhD Student at Pembroke College, University of Cambridge.
Life sentences – that is, indefinite detention without any opportunity for release – is a thorny issue, and the involvement of the European Court of Human Rights in this field, particularly in cases concerning the United Kingdom, have recently courted great controversy. After a relatively quiet period, the Court has recently handed down a new judgment on these sentences – the first in two years – this time concerning Ukraine.
Like a number of other European states, Ukraine operates a fairly strict regime when it comes to life sentences. Any prisoner serving such a sentence who seeks release must rely on one of two routes to obtain it: they must prove that they have a serious, life-threatening illness or rely on a presidential clemency mechanism. The applicant in Petukhov v Ukraine (No 2), handed down 12 March 2019, challenged the Convention-compatibility of this scheme, in light of current case-law which suggests that life sentences will breach Article 3 ECHR if they do not include some “real prospect of release” (see e.g. cases against the UK, France, Hungary and many others).
It is well-established that allowing the vacation of a sentence on grounds that the prisoner is suffering from a serious illness is not, in itself, a legitimate mitigation of a sentence. Thus, the main focus of the case at hand was the clemency route. The Court therefore analysed whether the applicant in this case had at his disposal a real “prospect of release” through the opportunity to obtain presidential clemency. Ultimately, it found that he did not, and found that Ukraine had breached Article 3 as a result.
A “prospect of release” in the Ukrainian prison system?
The Court’s case-law dictates that the mere technical existence of a “prospect of release” is not enough in and of itself to render a life-long sentence compliant with Article 3; rather, that sentence must in practice be both de jure and de facto reducible. In other words, it is not enough that some theoretical prospect of release exists; that prospect must be realistically obtainable. Thus, the Court had to assess the criteria governing the use of the clemency power in Ukrainian law. Official national guidance set out that decision-makers in clemency applications must consider a range of factors, including the seriousness of the crime, the length of time already served, the character of the detainee, including any remorse and repentance they may have shown and the opinion of relevant bodies on the matter. On this basis, the Court accepted that Ukraine had established and publicly promulgated a set of relevant principles guiding its clemency decisions.
But case-law has established that the mere existence of proscribed considerations is not enough; those considerations must be of a certain substance. The Court has previously held that any commutation decision must consider the appropriateness of the applicable sentence with regard to relevant penological grounds. In this case, the Court stressed, as it so often does, the importance of the principle of rehabilitation (see Petukhov, ; ; ) but punishment, deterrence and public safety have all been held up as legitimate considerations (see Öcalan v Turkey (No.2) at ). In Ukraine’s case, whilst the Court found that the relevant criteria “could be” read as relating to appropriate grounds (Petukhov, ), overall, they created a mechanism which was “based on the principle of humanity, rather than… penological grounds” ().
Another aspect of the case law is that any decision relating to clemency must be surrounded by sufficient procedural guarantees (). As the Court put it:
“in order to guarantee proper consideration of the changes and the progress towards rehabilitation made by a life prisoner, however significant they might be, the review should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided” ().
Here, the lack of any obligation to provide reasons for the clemency decision was a factor in finding a breach (), which was further aggravated by a lack of access to judicial review ().
The Court also required that any prisoners should be able to have “precise cognisance” (Trabelsi v Belgium at ) of the conditions determining their release, from the outset of their sentence. Whilst the Ukranian rules provided “some guidance” (Petukhov, ) the Court was concerned with the vagueness of terms like “exceptional cases” and “extraordinary circumstances”, as well as a lack of clarity concerning the applicable tariff period (-). This was enough to create a situation where “prisoners who receive a whole life sentence do not know from the outset what they must do in order to be considered for release and under what conditions” ().
Finally, the Court endorsed a principle it had set out strongly in Murray v the Netherlands, establishing that prisoners “cannot be denied the possibility of rehabilitation” and thus the state has “a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation and enable such prisoners to make progress towards their rehabilitation” (). Effectively, this means that the state must ensure, whatever conditions it chooses to set for prisoner release, that these conditions are obtainable in practice and that prisoners retain “a chance, however remote, to someday regain their freedom” (Harakchiev and Tolumov v Bulgaria at ). Given that the Applicant in the current case faced total segregation for 23 hours a day, the Court doubted whether he could ever have a legitimate opportunity to prove to the authorities that any of the penological grounds necessary for his release had been met (Petukhov, -).
Taken together, these grounds, alongside the fact that very few people had been granted clemency in practice (), led the Court to the finding of a violation of Article 3.
The bigger picture: life sentences, the Convention, and good faith
How should we view this case? The Court seems to take a relatively strict approach, analysing in great detail the applicable rules and applying intense scrutiny to the claims of the Ukranian authorities. Given the particular vulnerability of prisoners, this should be welcomed. However, when comparing this case with the approach taken in the wider case law, some problems arise. Whilst the approach in this case is in line with that of a number of previous cases, one case in the canon now seems to be an especially jarring outliner: Hutchinson v United Kingdom, decided by the Grand Chamber in January 2017.
In that case, the Grand Chamber assessed, and ultimately upheld, the United Kingdom’s life sentences regime. At the time of the complaint, in the UK, the sole avenue available to those serving life sentences was to apply for release through the Home Secretary’s power of “compassionate release” which allows the minister to commute sentences, including life sentences, largely on medical grounds. Whilst at first glance this regime seems obviously deficient, the Court accepted that the ‘Lifer Manual’, the document which set out these narrow grounds, was not exhaustive and that, in reality, the Home Secretary’s powers were much more extensive, especially given the minister’s abstract obligation to act in a way that is compliant with Article 3 of the Convention. Despite a wholesale lack of clarity, a reliance on ill-health as a ground of release, no obvious reference to any penological grounds and no evidence whatsoever that the state had complied with a positive obligation to secure that the conditions for release could be complied with in practice, the Court found that the UK’s system did not fall foul of Article 3. This seemed like a real departure from the case law, especially as the Court had found that the UK’s regime did breach Article 3 on the same facts only a few years earlier.
In a recent article, I argued that the Court’s decision in Hutchinson could be seen in one of two ways: as a softening of the approach in the case law, applied faithfully to the UK’s case, or a continuation of a strict approach to the principles, but poorly applied to the UK’s case. After looking at the case of Matiošaitis v Lithuania, a judgment handed down after Hutchinson, in which the Court seemed to apply its older, more rigorous standard, I suggested that the latter approach reflects the state of the case law: the precedent has not changed, the UK just got off lightly, perhaps for extra-legal reasons. The Petukhov case backs up this trend.
Petukhov and Hutchinson
Whilst the approach in Hutchinson might have had some influence on the present case, including the Court’s emphasis on the importance of the margin of appreciation (), much of the reasoning in in Petukhov seems difficult, if not impossible, to reconcile with that in Hutchinson. For example, the Court in this case took a strict approach to the requirement that the conditions of release must be knowable and understandable, finding that ‘exceptional cases’ was just simply too vague to be meaningful. However, no such concerns perturbed the majority in Hutchinson, who were content to accept that ‘exceptional grounds’ was certain enough, even though that formulation itself appeared nowhere in the official policy guidance (which was non-binding and contained misinformation).
In addition, even if legitimate penological grounds could be teased out of the official guidance, there was no way of knowing whether those grounds – whatever they may be – could be obtainable in practice. The Court in Hutchinson simply did not address the issue, but this requirement resurfaced in Matiošaitis and again in this case, where the Court rightfully questioned whether the conditions of release could be obtainable in practice, given the harsh conditions facing the prisoner.
Finally, the fact that very few prisoners had actually been released under the UK regime was no barrier to the overall finding in Hutchinson; conversely, the lack of prisoners released in practice formed a core part of the reasoning in both Matiošaitis and Petukhov.
Taking all of the case law into account, the decision in Hutchinson seems increasingly difficult to justify. Judge Pinto De Albuquerque, whose dissent in Hutchinson has been celebrated, seems to agree. He suggests in his partly concurring, partly dissenting opinion in the current case, that it is ‘difficult to explain’ the outcome in Hutchinson without raising ‘the suspicion of double standards’ with regard to the United Kingdom, and that the Court in Hutchinson ‘seriously distorted’ the previous case law to achieve that end. He makes a convincing case.
So what is to be made of Petukhov? It could perhaps be seen as a mixed blessing. It signals a return to orthodoxy, with the Court relying on its now well-established precedent in applying strict scrutiny to national prison regimes, in order to afford protections to some of the most vulnerable in society. On the other hand, it generates significant unease regarding its previous approach to the United Kingdom, suggesting that the Court may be willing to give greater leeway to some states rather than others. Even worse, it may signal that the Court may be succumbing to the constant partisan attacks against it, and beginning to bow to political pressure. All advocates of the ECHR should hope that this is not the case.