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 the European Court of Human Rights (hereinafter: ECtHR, Court or Strasbourg court) ruled on the matter and declared the Hungarian life imprisonment regime to be in violation of Article 3 of the European Convention on Human Rights (hereinafter: ECHR or Convention). As a response to the judgment, the legislative introduced a novel Pardon Committee proceeding that could have been scrutinized by the Hungarian Constitutional Court, but it missed this opportunity. A brief analysis of Hungary’s obligations flowing from the Strasbourg judgment and the new Pardon Committee proceeding will be offered in this blog post.
1. The European Court of Human Rights on the Hungarian life imprisonment regime
In Magyar v Hungary (Application no. 73593/10, 20 May 2014) the ECtHR issued its long awaited judgment on the Hungarian life imprisonment regime, and held that the sanction of life imprisonment as regulated by the respondent state, which is de jure and de facto irreducible, amounts to a violation of the prohibition of degrading and inhuman punishment as regulated by Article 3 ECHR. The outcome was rather predictable in light of previous Strasbourg case-law, in particular the Grand Chamber decision in Vinter v the UK ([GC], Applications nos. 66069/09, 130/10 and 3896/10, 9 July 2013). The judgment was challenged by the Hungarian government, but the request to the Grand Chamber referral was rejected. The judgment became final in October 2014.
The court reinstated its previous case law and as a point of departure emphasized that the imposition of life sentences on adult offenders for especially serious crimes such as murder, is not in itself prohibited by or incompatible with the ECHR. (paragraph 47) Still, the devil lies in the details and it is very much case specific what life imprisonment regime the ECtHR will hold to be in line or contrary to the Convention. The Court reminded that there were two particular but related aspects to be analysed. First, the ECtHR will check whether a life sentence was de iure and de facto reducible. If so, no issues under the Convention arise. (paragraphs 48-9) Second, in determining whether a life sentence was reducible, the Court will ascertain whether a life prisoner convict had any prospect of release. Where national law affords the possibility of review of a life sentence, this will be sufficient to satisfy Article 3, irrespectively of the form of the review. The Court however requires that the domestic authorities consider whether the life prisoner made progress towards rehabilitation in the course of the sentence, so that the continued detention could no longer be justified on legitimate penological grounds. (paragraph 50) Prisoners are entitled to know at the outset of their sentence, what they must do to be considered for release and under what conditions, including the earliest time of review. (paragraph 53)
The peculiarities of the Hungarian life imprisonment regime have been discussed in light of the above. The government tried to argue that the possibility of presidential pardon made the execution of the sentence in practice reducible, but the ECtHR did not accept this argument. First the ECtHR distinguished the case from earlier case-law, in particular from Törköly v Hungary (Application no. 4413/06, 5 April 2011), where the Applicant was not excluded by the judiciary from conditional release, but the domestic court imposed a life sentence on him, with eligibility for release on parole after 40 years. There the Court applied a lower scrutiny to the institution to presidential pardon. In the Magyar case however, the Applicant was excluded from conditional release, therefore a stricter review applies to his case. (paragraph 56) The stricter test made the Court come to the following conclusion: since domestic Hungarian legislation did not oblige the authorities or the President of the Republic to assess, whenever a prisoner requested a pardon, whether his or her continued imprisonment was justified on legitimate penological grounds, and since they were not bound to give reasons for the decisions concerning such requests, the ECtHR considered that the institution of presidential pardon, taken alone did not allow prisoners to know what they had to do to be considered for release and under what conditions, and did not guarantee proper consideration of the changes and progress towards rehabilitation made by the prisoner. (paragraphs 57-8) The discretionary nature of the presidential pardon led the Court to believe that the life imprisonment of Mr. Magyar was in fact irreducible in breach of Article 3 of the Convention.
The Court also noted that the human rights violation was caused by a systemic problem, which may give, rise to similar applications, and therefore suggested a legislative reform of the system of review of whole life sentences. The review mechanism needs to guarantee the examination of whether continued detention is justified on legitimate penological grounds in the individual cases and it should enable life prisoners to foresee what they must do to be considered for release and under what conditions. (paragraph 71) The Court also stated that Hungary and other State Parties enjoy a wide margin of appreciation in determining the appropriate length of prison sentences for particular crimes. (paragraph 72)
2. General measures of enforcement
Hungarian Justice Minister László Trócsányi foreshadowed a legislative response to the Strasbourg decision, but he also promised that the amendment would leave the institution of real life imprisonment in essence intact. This is what eventually happened. The Criminal Code remained unchanged. Instead the Hungarian legislative responded to the judgment by a modification of the new Penitentiary Code.
For decades Law Decree 11 of 1979 regulated the possibility of conditional release. At the time of filing the application with the ECtHR the possibility of release could have been excluded when determining guilt and imposing the sanction. While the case was pending in front of Strasbourg, a new law, Act CCXL of 2013 was adopted, which was to replace the one from 1979 as of 1 January 2015. The new Penitentiary Code kept the previous system of real life imprisonment. As a response to the Strasbourg judgment however Act LXXII of 2014 modified the new Penitentiary Code’s rules on life imprisonment, still before the law’s entry into force. (See Article 109 of Act LXXII of 2014, which inserted a new subtitle on the mandatory pardon proceeding of persons sentenced to life imprisonment without the possibility of conditional release, Articles 46/A-46/H into Act CCXL of 2013.)
According to the new review mechanism prisoners sentenced to real life imprisonment have the right to have the possibility of conditional release examined. After having served 40 years in prison, an ex officio procedure has to be started, however convicts need to agree to the process. The case is then deliberated by a Pardon Committee consisting of five judges. The Pardon Committee examines the prisoner’s behaviour; his or her possible future behaviour if conditionally released; personal and family circumstances, and the prisoner’s health status. In light of these factors it will assess whether the objectives of the sanction could be achieved without further incarceration. As to the prisoner’s mental state the Pardon Committee has to ask for an expert opinion, and in any other important issues it may request expert opinions. The reasoned opinion of the Pardon Committee will be sent to the Minister of Justice, who accordingly prepares a request to the President of the Republic. The Minister of Justice may not depart from the Pardon Committee’s reasoned opinion. The final decision on pardon is up to the President, who is not requested by law to give reasons for accepting or rejecting the pardon request. Should the prisoner not be conditionally released at the end of the procedure, the pardon procedure will have to be repeated in two years.
3. Analysis of the new Pardon Committee proceeding
Although Hungarian scholars designed viable scenarios for a legislative amendment corresponding to the Strasbourg judgment in the Magyar case (for some elegant solutions see for example Professor Mihály Tóth’s contributions at JTIblog or at other sources), the Hungarian lawmaker laid down a procedure by way of the 2014 modifications that would hardly survive yet another Strasbourg review.
The new law would fail at least in two respects: first, due to the form of the Pardon Committee proceeding. The President of the Republic deciding on pardon is not bound by the opinion of the Pardon Committee, and is not obliged to give a reasoned opinion, therefore aspects decisive to have a realistic chance of conditional release can still not be foreseen at the time of imposing the life sanction. In contrast, in the Törköly decision, even a discretionary pardon proceeding system was considered to the credit of the Contracting Party: when declaring the case inadmissible, the Strasbourg Court took into account that Mr. Tibor Törköly was free to introduce a request for pardon at any time after his conviction, even within the 40-year-period. It shall be stressed in this regard, that the possibility for ordinary presidential pardon was only considered positively, because the lower test was used, since there was simultaneously a judicial review possible. In lack of such a judicial review however, the discretionary nature of the Pardon Committee proceeding will be considered according to the stricter test, and therefore against Hungary, and as a result the system can be predicted to fail in a future Strasbourg case.
At the same time, the new process would most likely fail on a second ground: pardon may take place after 40 years, which is clearly excessive and goes way beyond the maximum years for review requested by the ECtHR in earlier cases. Whereas Strasbourg decisions in relation to life imprisonment are very much case specific, subsuming earlier case law, a rule of thumb emerges: there seems to be a close correlation between judicial powers and the possible earliest day for release. The more power courts have, the more lenient the Strasbourg court will be via life imprisonment. In other words the Strasbourg court firmly believes that courts in the Contracting States are independent, capable and best suited to render an objective decision on the sanction, the earliest date of a possible conditional release, and the permissibility of conditional release. And vice versa: the more judicial discretion is taken away by the lawmaker, the higher the Strasbourg test will be. Should there be a mandatory life imprisonment regime depriving judges from any balancing (see Vinter, and also Magyar, paragraph 47), or should there not be any possibility for courts to decide on conditional release (paragraph 56), the Strasbourg test will be higher and consequently, the earliest date for conditional release still accepted, lower. Since it is still the President of the Republic, who has the final say and total discretion on conditional release, a 40-year-period will hardly be in line with Strasbourg expectations. Whereas national rules differ to a great and important extent, in light of previous case law it seems that under such circumstances the earliest review for conditional release beyond 25-30 years will hardly survive ECtHR scrutiny.
4. The Hungarian Constitutional Court on the Hungarian life imprisonment regime
The Hungarian Constitutional Court (hereinafter: HCC) had a chance to remedy the situation and could have prevented yet another attack on the life imprisonment regime in front of the ECtHR. However the HCC missed this opportunity in HCC Resolution 3013/2015. (I. 27.).
An appeal court suspended its procedure in a murder case and asked the HCC to review and declare the provisions on real life imprisonment null and void with due regard to Hungary’s international obligations. At the time of referring the case to the HCC, the Magyar case was still pending, therefore the appeal court referenced previous Strasbourg case law, in particular the above mentioned Vinter judgment.
Although there is a 90-day-deadline foreseen for procedures initiated by an ordinary judge challenging the conformity of a legal provision with the Fundamental Law, it took for the HCC more than 9 months to rule on the matter. This prolonged period gave the opportunity to the legislative to correspond to the Strasbourg judgment. As shown above, the lawmaker missed that opportunity and adopted a procedure that would still fail the Strasbourg test. This opinion unanimously represented by criminal law scholars was however not shared by the HCC.
In a rather dubious decision the majority of the court rejected the complaint and did not decide the case in the merits. Justice Péter Paczolay writing for the majority noted that the rules on life imprisonment changed since the constitutional challenge was submitted. At the time of filing the complaint, Law Decree 11 of 1979 regulated the possibility of conditional release. Under the old law the possibility of release could have been excluded when determining guilt and imposing the sanction, which is not the case after the 2014 modifications.
According to the Act on the Constitutional Court (Act CLI of 2011 on the Constitutional Court, Article 59) the HCC can exceptionally terminate the procedure in case it became substantially obsolete. According to the Rules of the Constitutional Court a case becomes substantially obsolete, if the circumstances giving rise to the complaint ceased to exist in the meanwhile. (Article 67 Section (2) Point e)) The majority held that the new rules introduced by the Penitentiary Code on the Pardon Committee procedure were new circumstances that made the case substantially obsolete, and therefore the procedure was terminated.
Justice Ágnes Czine in her concurring opinion agreed that the legal rules substantially changed after submitting the constitutional complaint, however she would have discussed the case in the merits. She recited the conditions for a permissible regulation of life imprisonment, which is in line with the Convention: a domestic law will only be compatible with the Convention as interpreted by the Strasbourg court, if there is a possibility of limiting the duration of life imprisonment, in case the objective of the sanction ceases to exist. There is a wide room of manoeuvre for the Member States to grant the possibility of release either via judicial or administrative means. Conditions for release however need to be clear, public and transparent, since the person sentenced to life imprisonment needs to know right at the time when the sentence is imposed, what conditions he or she needs to satisfy to be released, and the possible date of release. Based on the case-law of the ECtHR, in Justice Czine’s view, a permissible regulation would need to provide for the first possibility of review after 25 years the latest, and its conditions for conditional release need to be known and accessible, since in the lack of these, resocialisation of the prisoner was considerably more difficult. She found a departure from international norms problematic and difficult to justify with special regard to the fact that the protection of society can be equally guaranteed by a more permissive life imprisonment regime. She saw no reasons for the lawmaker to take over the role of determining the dangerousness of the prisoner from experts, by way of extending the possibility of the first review beyond 25 years. Whereas it is easy to agree with the content of Justice Czine’s concurring opinion, one wonders why the decision was drafted in the form of a concurring opinion and not as a dissent.
Justice László Salamon in his concurring opinion held – in clear contradiction with the Magyar judgment – that the institution of presidential pardon shall be taken into account, when the hope for conditional release from life imprisonment is discussed. He also emphasized that the possibility of real life imprisonment was constitutionally embedded into Article IV Section (2) of the Fundamental Law, which holds that real life imprisonment may only be imposed for the commission of intentional and violent criminal offences. Therefore in his view the complaint was indirectly targeting a constitutional provision, whereas the Constitutional Court did not have the power to review the text of the Fundamental Law. Justice Salamon failed to mention Article Q Section (2) of the Fundamental Law on Hungary’s obligation to ensure that Hungarian law was in conformity with international law. At the same time he also noted that there was a possibility to resolve tensions between an international convention and the Fundamental Law, but a constitutional complaint was not the proper procedure to do that.
Justice Miklós Lévay joined by Justice László Kiss dissented from the majority opinion. They would have reviewed the case in the merits. Whereas they agreed that the legal situation substantially changed since the constitutional complaint had been filed, in their view instead of noting the change in the legal situation, the Constitutional Court should have scrutinized whether the respective law complied with the ECHR and the related Strasbourg case law. In lack of such a scrutiny the conclusion of the majority opinion – according to which the procedure became substantially obsolete – is unfounded. According to the dissent, since real life imprisonment was still part of the Hungarian sanction system, and because its compatibility with the Convention was questionable, the complaint was clearly not obsolete and the Hungarian Constitutional Court should have discussed the merits. After having reviewed Strasbourg case law, the dissenting opinion implied that the new rules might not necessarily be in line with the requirements of the ECtHR on the establishment of a review mechanism with a view to the commutation, remission, termination of life imprisonment or the conditional release of the prisoner. And where the review mechanism failed to comply with Strasbourg requirements, the sanction itself violated Article 3 of the Convention. The dissenting opinion also noted that in case a constitutional scrutiny would have taken place, the justices must have come to the conclusion that the new rules still contradict the Convention.
The majority decision was harshly criticized (for example here, here, here, and here) for the same reasons that appear in Justice Lévay’s dissenting opinion, i.e. a lack of causal relation between the change of the law and a constitutional review becoming obsolete. These voices stated the obvious: the mere fact that a law was amended does not automatically render the modification constitutional. The HCC therefore contributed to paving the way for further ECtHR applications, and at the same time left ordinary courts with the uncomfortable tension of either applying a domestic law clearly contradicting Hungary’s international obligations or having to disregard the law in force to the benefit of the ECHR. A later blog post will address how the Kúria, the Hungarian supreme court addressed this issue.
The views expressed above belong to the author and do not in any way represent the views of the HAS Centre for Social Sciences.