Report on Mandatory Sentences - Law Reform Commission

independent judicial body which would conduct a hearing in public and at which hearing the plaintiffs
would be afforded (among other things) adversarial rights.
2.95 Regarding Article 6(1), the Supreme Court observed that no issue had been taken with the
procedures before the trial court which had originally sentenced the appellants to life imprisonment. It
stated that since the subsequent detention of the appellants was at all times referable to, and a
consequence of, the punitive sentence so imposed, no issue arose concerning the compatibility of section
2 of the Criminal Justice Act 1990 with Article 6 of the European Convention on Human Rights. The
Supreme Court thus dismissed the appellants’ Article 6(1) submission.
(ii)
Case law of the European Court of Human Rights
2.96 The mandatory life sentence for murder under Irish law has not been considered by the European
Court of Human Rights. However, in Kafkaris v Cyprus, 210 the European Court of Human Rights
considered the Cypriot sentencing system which, like Ireland, does not employ a tariff system. The
applicant had received a mandatory life sentence for murder. The domestic courts had ruled that a “life
sentence” subsisted for the natural life of the prisoner and not 20 years as had been provided by prison
regulations. The applicant argued that his rights had been breached under Article 3 and Article 5.
2.97 Regarding Article 3, the applicant contended that his detention after the date at which he would
have qualified for ordinary remission had the sentence been one of 20 years, violated Article 3. 211 In this
regard, the applicant argued that the punitive purpose of the life sentence coupled with its mandatory
nature constituted inhuman and degrading treatment. He also argued that his detention beyond the date
at which he would have otherwise qualified for ordinary remission had left him in a state of distress and
uncertainty over his future. For its part, the Government contended that there had been no violation of
Article 3 as the applicant had sufficient hope of release having regard to the President’s power to remit,
suspend or commute sentences and to order conditional release. 212
2.98 The Court emphasised that treatment must attain a minimum level of severity if it was to fall
within the scope of Article 3. 213 In this regard, it noted that any suffering or humiliation must exceed the
level of suffering and humiliation inherent in legitimate punishment. 214 The Court stated that while the
imposition of a life sentence was not in itself contrary to Article 3, the imposition of an irreducible life
sentence might be. 215 Thus, a life sentence would not be considered irreducible where national law
afforded the possibility of review with a view to commuting, remitting or terminating the sentence or
ordering conditional release. 216 The Court thus ruled that while a life sentence without a minimum term
would entail anxiety and uncertainty regarding prison life these were inherent in the nature of the
sentence imposed. 217 Furthermore, while there was no parole board, the President could suspend, remit
210
211
212
213
214
215
216
217
Kafkaris v Cyprus (2009) 49 EHRR 35.
Ibid at paragraphs 80-86.
Ibid at paragraphs 87-95.
Ibid at paragraph 96.
Ibid at paragraph 97.
Ibid at paragraph 98.
Ibid at paragraph 99. See also: joint partly dissenting opinion of Judges Tulkens, Cabral Barreto, Fura-
Sandstrom, Spielmann and Jebens: “[T]he prospect of release, even if limited, must exist de facto in concrete
terms, particularly so as not to aggravate the uncertainty and distress inherent in a life sentence. By ‘de facto’
we mean a genuine possibility of release. That was manifestly not the case in this instance”. (at paragraph O-
II4).
Ibid at paragraph 108.
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