The regulation of whole life sentences varies in the Member States, however there seems to be a European consensus on granting some form of a meaningful review for possible conditional release from life imprisonment after the expiry of a long-term period spent in prison. Hungary was among the few Member States of the EU and the Council of Europe to have a sanction regime including whole life sentences without the possibility of review for conditional release, until the European Court of Human Rights (hereinafter: ECtHR, Court or Strasbourg court) ruled on the matter and in Magyar v Hungary (Application no. 73593/10, 20 May 2014) declared the Hungarian life imprisonment regime to be in violation of Article 3 of the European Convention on Human Rights (hereinafter: ECHR or Convention). Last week the Kúria, the supreme court of Hungary had to remedy the human rights violation done to the whole life prisoner winning the Strasbourg case. In the review procedure Mr. Magyar was sentenced to life imprisonment with a possibility of conditional release after 40 years the earliest. In the present blog post the judgment will be analyzed in light of the ECHR and the attached case-law.
1. Individual measures of enforcement
In 2006 the Committee of Ministers supervising the execution of judgments emphasized the obligations of states to take both general and individual measures to ensure the enforcement of Strasbourg judgments. (General measures of enforcement with regard to the Magyar case were discussed in a previous blog post.) As to the individual measures of enforcement, beyond paying the just satisfaction and costs awarded, the Respondent state has to ensure that the violation of the Convention ceases to exist and the Applicant, as far as possible, is in the same position as prior to the human rights intrusion. In line with these expectations, the Hungarian Criminal Procedural Code (see Article 416 (1) g)) provides for reopening the case by the Kúria in the form of a review procedure, which is initiated automatically and ex officio by the Prosecutor General (Article 417 (2)). This is what eventually happened in the Magyar case.
In its decision of 11 June 2015 the Kúria, which on 28 September 2010 upheld the original life imprisonment sentence of Mr. Magyar to real life imprisonment, had to decide his case again in the review procedure. The main difference in the circumstances of the original procedure and the one in 2015 was the existence of the Magyar judgment. With regard to the Strasbourg decision, the convicts’ lawyers and the prosecution both requested the court to sentence Mr. Magyar to life imprisonment with the possibility of release. The only disagreement between the defence and the prosecution was on the earliest possible review date for conditional release: the defence would have set it in 25 years, with regard to Strasbourg case law, whereas the prosecutor argued that the earliest date for conditional release had to be set according to the Criminal Code in force at the time of the offence. Article 47/A Section (2) of Act IV of 1978 on the Criminal Code, as in force since 1 March 1999, provided that in case release on parole was not excluded, the earliest date had to be defined at no earlier than 20 years, whereas for offences punishable without any statutory limitation period, the above-mentioned date had to be defined at no earlier than 30 years. The latter rule applied to the case of Mr. Magyar.
The prosecution consistently represented this position up until the very last moment: in an unprecedented move, less than 24 hours before the last trial date, the Kúria and through the court the defence were notified about the prosecution’s request to apply the new Pardon Committee review proceeding in line with the new Penitentiary Code. The new law set up a complicated process for reviewing the possibility of conditional release of life prisoners after 40 years, with the President ultimately deciding on the matter in total discretion and without an obligation to give justifications. (A detailed description of the process can be found in the previous blog post.)
During the oral proceeding the prosecutor raised a discrimination argument in relation to his modified request: should Mr. Magyar be eligible to review on conditional release after 30 years, he will be in a more advantageous position as compared to other life imprisonment convicts who might be conditionally released after 40 years the earliest. That argument was immediately rejected by the defence asking the prosecutor “not to decide cases that are still pending.” The defence also made reference to two Hungarian life imprisonment cases communicated to the Government by the Strasbourg court, and predicted others to follow.
2. International norms trumping domestic laws in ordinary judicial proceedings
Kúria judges found themselves between a rock and a hard place: they either applied the Hungarian law as it currently stands thereby risking another Strasbourg review, where Hungary would most likely fail; or apply the Strasbourg standards and put aside Hungarian provisions in force. The stance the Kúria was to take hung in the balance. Judge István Kónya, Vice-President of the Kúria stated in an interview that Hungarian judges “swore on the Fundamental Law which incorporates the possibility of real life imprisonment” implying that it is the Hungarian rules a Kúria judge would need to apply in the review procedure. The political pressure on the court to take this path was immense. A week before the 4 June 2015 trial date, the Minister of the Prime Minister's Office stated – somewhat confusing European institutions – that the European Union and the Strasbourg court “attacked the Hungarian institution of life imprisonment, which presents a danger to Hungarians” and promised that the Government will insist on the Hungarian real life imprisonment regime. One day before the 11 June 2015 trial date governing party Fidesz reinstated that there was a need for life imprisonment without the possibility of parole.
Hungary’s international obligations dictated the opposite. As suggested by the defence attorneys, since there was no Strasbourg conform law in force in Hungary with regard to life imprisonment, the ECtHR tests had to be applied directly by the national court. This suggestion raises the important point of the relationship between international law and domestic law and the justiciability of international standards contravening domestic laws in front of domestic courts. In order to show that international law must trump domestic laws in domestic court proceedings, the defence invoked Article Q Section (2) of the Fundamental Law stating that Hungary “shall ensure that Hungarian law be in conformity with international law.” This dubious language does not give much guidance as to how this harmony is to be achieved, but the Hungarian Constitutional Court (hereinafter: HCC) in HCC Decision 61/2011. (VII. 13.), came to the conclusion that the level of human rights protection granted must never be below international standards, as determined in particular by the ECtHR. Therefore the HCC self-imposed the obligation to follow Strasbourg case law and to guarantee the level of human rights protection defined by the ECtHR, even if it does not follow from its own previous precedent. The only peculiarity of the case according to the defence was that the HCC – as opposed to the German Federal Constitutional Court (2 BvR 1481/04, 14 October 2004) – has not yet formulated this requirement with regard to domestic courts.
3. Form of review procedure
Against this background, two issues needed to be decided by the Kúria in light of the Strasbourg Magyar judgment: the procedural form reviewing the possibility and the earliest date of conditional release. As to the latter issue, the Kúria acknowledged that the Hungarian law’s Pardon Committee review mechanism contravened the Convention as interpreted by the ECtHR due to its discretionary nature.
The Kúria followed the line of the defence lawyers and refused to apply the new Penitentiary Code’s provisions, which it considered to be contrary to the requirements of the ECtHR. In his oral reasoning of the judgment, Judge Gábor Miklós Molnár stated that the review procedure was there in order to remedy the mistakes of the earlier procedure and bring the case in line with the ECHR. This does not only apply to the attacked provision in question, but the domestic law as a whole. In other words no parts of domestic law must be applied which might be contrary to the Magyar judgment. Since the new pardon mechanism clearly contradicted its paragraphs 57-8, it had to be disregarded. This move of the Kúria is of crucial importance, since this is one of the very rare cases a national court directly acknowledges in an ordinary, domestic procedure the superiority of international law over domestic law in force.
4. Earliest date for a review for conditional release
As to the latter issue, the Kúria disagreed that there was an international obligation on Hungary to grant release after 25 years at the latest. In order to underpin its point, it stated that the original Magyar decision in the national proceeding shall be overwritten to the extent absolutely necessary to bring the case in line with the Convention. It narrowed the pool of relevant ECtHR decisions to those where Hungary was a party. It thereby efficiently excluded the seminal Vinter v the UK ([GC], Applications nos. 66069/09, 130/10 and 3896/10, 9 July 2013) and other judgments where the Court made reference to the internationally shared consensus among most of the State Parties to have a mechanism guaranteeing a review for conditional release no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter. The Magyar judgment in contrast did not entail a specific reference to the maximum number of years to elapse until reviewing the possibility of conditional release. The argument by the Kúria to disregard relevant cases but Hungarian ones can of course be challenged. With due regard to the Brighton Declaration, the principle of subsidiarity presupposes a certain allocation of responsibilities between the State Parties, in particular the national judiciary and the Strasbourg court in realizing the effective implementation of the Convention. State Parties must respect the rights and freedoms guaranteed by the ECHR, as interpreted by the ECtHR. Should the latter be forced to declare the same principles and give the same interpretation in relation to each and every 47 State Party, the effectiveness of the Convention system would be greatly jeopardized. Subsidiarity in this sense dictates solidarity so that state legislatives carefully follow the case-law of the ECtHR irrespectively of who the Respondent State was and take the necessary general measures so as to avoid future – and most certainly winning – applications similar to the one initiated against the loosing State Party.
The defence had a more pragmatic argument against excluding non-Hungary related Strasbourg case law: in their view it was only a codification technique by the Strasbourg court not to refer to the 25-year-time-limit expressis verbis, but instead referencing the Vinter judgment, where the Court suggested the UK to revert to its previous system with a maximum of 25 years to be spent in prison without review for conditional release. A reference to Vinter could however be equally used to the opposite: among others the Court cited Vinter in paragraph 46 of the Magyar judgment reminding us that it was not for the ECtHR to decide on the appropriate length of detention or other sentence which should be served by a convict. Also, whereas in Vinter the Court proved that a large majority of Contracting States either do not impose life sentences or, if they do impose life sentences, they guarantee a review of those life sentences after usually 25 years’ imprisonment, and suggested the UK to return to its previous system with a review after 25 years, one cannot exclude that a longer review period could also have survived the Strasbourg test.
In any case, after narrowing the pool of relevant decisions to the ones against Hungary – and in line with its promise to take only Hungarian cases into consideration – the Kúria invoked another case, Törköly v Hungary (Application no. 4413/06, 5 April 2011), the one that was distinguished from the Magyar case by the ECtHR, where the Applicant was sentenced to life imprisonment with an eligibility for release on parole after 40 years. The case was declared inadmissible by a majority of the ECtHR on the ground that the possibility of the applicant’s eventual release de jure existed in the domestic law and the penalty concerned was also reducible de facto. The Court also noted that the Applicant may be granted presidential clemency even earlier than 40 years. The Court therefore believed that the Applicant was not deprived of all hope of being released from prison one day and by a majority it found that the case was manifestly ill-founded, since there was no violation of Article 3 of the Convention. The test used in Törköly was a lower one than the Magyar test, since judicial review for conditional release was not excluded in this case. Whenever judicial powers remain intact, the Court is much more lenient towards both taking presidential pardon into account and accepting the 40-year-period for review of conditional release. By refusing the Pardon Committee proceeding and placing the decision on a potential future conditional release of Mr. Magyar into the hands of the judiciary, the Kúria created a Törköly-like scenario, which already passed the Strasbourg scrutiny, or at least the Court did not find it necessary to go into the merits of the case. Unlike the previous Magyar decision in front of the domestic courts, the current one in front of the Kúria cannot be distinguished from Törköly any more, and therefore the Hungarian justices have good reasons to believe that their judgment cannot be successfully attacked in front of the ECtHR.
5. Significance of the Kúria decision
The Kúria decision will most probably be unsatisfactory for Mr. Magyar who might be conditionally released in 27 years the earliest, at the age of 76, which he might not live to see according to Hungarian life expectance statistics. His defence lawyers indicated that they will attack the decision both in front of the HCC and the ECtHR.
Still, the ruling is a groundbreaking one in many aspects. First, the Hungarian life imprisonment regime, as we knew it, ceased to exist.
Second, the 11 June 2015 judgment is a victory for judicial review powers. For the Strasbourg court, life imprisonment cases have as much to do with life prisoners’ prospect for release as with judicial powers. As the Court consequently repeated, Contracting States enjoy a wide margin of appreciation in deciding on the appropriate length of prison sentences, but the ECtHR will only refrain from interfering with state criminal policies and sentencing, if sufficient room for judicial powers was left in deciding on the sanction. The Strasbourg court however is suspicious in relation to life imprisonment regimes, where – like in case of mandatory life imprisonment for instance –, the legislative curtails the competence of the judiciary, the branch of government that is supposed to be the ultimate guardian of human rights. Whereas the ECtHR does not prescribe the form (executive or judicial) which the review on conditional release should take, in most legal systems it is the judiciary which will be best suited to draft a reasoned opinion on whether the life prisoner’s continued imprisonment is justified on legitimate penological grounds. The Kúria understood the correlation between judicial powers and the level of Strasbourg scrutiny. Life imprisonment was in the full discretion of the court already in the original process, and in the review proceeding also the review for conditional release was placed back to the hands of the judges. Thus the Kúria made sure that a lower Strasbourg test was triggered and therefore it did not feel obliged to depart from the 40 years as the earliest date for conditional release, which already passed under the same circumstances Strasbourg scrutiny.
Third, an ordinary court was willing to put Hungarian law in force aside, with due regard to Hungary’s international human rights obligations. Surely, the Kúria could have gone further and could have drafted a more human rights friendly judgment. Instead it modified the judgment in the original domestic proceedings to the extent absolutely necessary to bring the case in line with Strasbourg expectations. This is understandable, since the Kúria had to overrule an existing domestic law in force. In line with the separation of powers it only did so to the extent it was unavoidable.
Fourth and related to the third comment, the decision proves that ordinary courts are still willing and capable of bringing Hungarian law in line with the ECHR and Strasbourg expectations, even against the wishes of the Parliament. Of course the decision cannot make up for the legislative’s shallow and insufficient response to the Strasbourg decision on life imprisonment. It can only prevent a further ECtHR review in the case of Mr. Magyar. Unless all judges follow the path of Judge Gábor Molnár drafting the Kúria decision and invoke Strasbourg jurisprudence directly instead of the Hungarian law in force – a highly unlikely scenario –, there will be (in fact there already are) final judgments, where life imprisonment is imposed on convicts according to the novel Hungarian rules. These whole life imprisonment cases will have good chances to end up in front of the ECtHR – and in fact two of these cases were already communicated to the Hungarian Government – and Hungary is highly likely to be condemned again and again. As the ECtHR pointed out, there was a systemic failure in the Hungarian life imprisonment regime, and only the lawmaker can efficiently prevent recurring cases by a proper legislative response.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.