Report on Mandatory Sentences - Law Reform Commission

or commute any sentence and order conditional release. 218 As these constituted prospects for release,
the Court found that there had been no inhuman or degrading treatment contrary to Article 3. 219
2.99 Regarding Article 5(1), the applicant contended that he had exhausted the punitive part of his
sentence on the date at which he would otherwise have qualified for ordinary remission. 220 His detention
beyond that date was thus arbitrary and disproportionate as there was no evidence to suggest that he
represented a danger to the public. The Government submitted that as the mandatory life sentence in
Cyprus was not composed of a punitive part and a preventative part, detention was not subject to factors
such as risk and dangerousness to the public. 221
2.100 The Court accepted that the mandatory life sentence had been imposed “as the punishment for
the offence of premeditated murder irrespective of considerations pertaining to the dangerousness of the
offender”. 222 It thus held that there was a clear and sufficient causal connection between the conviction
and the applicant’s continuing detention. 223 There was thus no breach of Article 5(1).
2.101 Regarding Article 5(4), the applicant contended that the mandatory nature of life imprisonment
coupled with the absence of a parole system violated Article 5(4). 224 The Government submitted that the
requirements of Article 5(4) had been incorporated in the original sentence. 225
2.102 The Court found that the Article 5(4) complaint was inadmissible and thus refrained from ruling on
the matter. 226 This is unfortunate as it would have been a useful opportunity for the Court to clarify
whether the judicial statements in Wynne or Stafford should apply in countries which do not have a tariff
system. It will be recalled that, in Wynne, the Court indicated that where a mandatory life sentence was
concerned, the requirements of Article 5(1) were satisfied by the original trial and appeal proceedings
whereas, in Stafford, the Court indicated that this could no longer be considered the case.
2.103 The Court emphasised that in the absence of “a clear and commonly accepted standard amongst
the member States”, 227 it is within the margin of appreciation of each Member State to choose its own
“criminal justice system, including sentence review and release arrangements”. 228 However, Judge
Bratza, in a concurring opinion, expressed the view that the principles outlined in Stafford should apply to
all Member States, regardless of whether or not they had a tariff system:
“[E]ven in the absence of a tariff system, it appears to me that the Court’s reasoning in the
Stafford case may not be without relevance to a system such as exists in Cyprus where there is
an express power of conditional release which is applicable even in the case of a mandatory life
prisoner. The question whether conditional release should be granted in any individual case
must ... principally depend on an element of punishment for the particular offence and, if so,
218
219
220
221
222
223
224
225
226
227
228
Kafkaris v Cyprus (2009) 49 EHRR 35 at paragraphs 104-105.
It is interesting to note that a sizeable minority emphasised that a life sentence which impeded the purpose of
reintegration might constitute inhuman and degrading treatment. See: joint partly dissenting opinion of Judges
Tulkens, Cabral Barreto, Fura-Sandstrom, Spielmann and Jebens (at paragraph O-II13).
Kafkaris v Cyprus (2009) 49 EHRR 35 at paragraphs 111-112.
Ibid at paragraphs 113-116.
Ibid at paragraph 120.
Ibid at paragraph 121.
Ibid at paragraph 123.
Ibid at paragraph 124.
Ibid at paragraph 125.
Ibid at paragraph 105. See also: the joint partly dissenting opinion of Judges Tulkens, Cabral Barreto, Fura-
Sandstrom, Spielmann and Jebens, who did not agree with this statement and identified trends at the Council
of Europe, European Union and international criminal justice levels (at paragraphs O-II9-O-II12).
Ibid at paragraph 100.
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