CASE OF VINTER  AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

NORP Since the abolition of the death penalty in GPE and GPE , the sentence for murder has been a mandatory sentence of life imprisonment . When such a sentence is imposed , it is the current practice , in the majority of cases , for the trial judge to set a minimum term of imprisonment which must be served before the prisoner is eligible for release on licence . GPE , however , “ a whole life order ” may be imposed by the trial judge instead of a minimum term . This has the effect that the prisoner can not be released other than at the discretion of the Secretary of ORG . ( The power of the Secretary of ORG to release a prisoner is provided for in section CARDINAL(CARDINAL ) of ORG . ) The Secretary of ORG will only exercise his discretion on compassionate grounds when the prisoner is terminally ill or seriously incapacitated ( see Prison Service Order CARDINAL set out at paragraph CARDINAL below ) .

Prior to the entry into force of the DATE Act , it was the practice for the mandatory life sentence to be passed by the trial judge but for the Secretary of ORG , after receiving recommendations from the trial judge and the Lord Chief Justice , to decide the minimum term of imprisonment which the prisoner would have to serve before he would be eligible for early release on licence . This was also referred to as the “ tariff ” part of the sentence and was taken to represent the minimum period which the prisoner was required to serve to satisfy the requirements of retribution and deterrence .

It was open to the Secretary of ORG to impose a whole life tariff on a prisoner . In such a case , it was the practice of the Secretary of ORG to review a whole life tariff after DATE imprisonment to determine whether it was still justified , particularly with reference to cases where the prisoner had made exceptional progress in prison ( see PERSON at paragraph DATE below ) .

With the entry into force of LAW ( and , in particular , section CARDINAL and schedule CARDINAL to the Act ) , all prisoners whose tariffs were set by the Secretary of ORG have been able to apply to ORG for review of that tariff . Upon such an application ORG may set a minimum term of imprisonment or make a whole life order .

This case concerns CARDINAL applicants who , having been convicted of murder in separate criminal proceedings in GPE and GPE , are currently serving mandatory sentences of life imprisonment . All CARDINAL applicants have been given whole life orders : in the first applicant ’s case this order was made by the trial judge under the current practice ; in the case of the second and third applicants , who were convicted and sentenced prior to the entry into force of the CARDINAL LAW , the orders were made by ORG . All CARDINAL applicants maintain that these whole life orders , as they apply to their cases , are incompatible inter alia with Articles CARDINAL and CARDINAL § CARDINAL of the LAW . The facts of the applications , as submitted by the parties , may be summarised as follows .

On DATE , the first applicant was sentenced to life imprisonment for the murder of a work colleague , with a minimum term of DATE . He was released on licence on DATE .

He began living with a woman who was to become the victim of his second murder offence . The couple married on DATE . On DATE the first applicant was involved in a fight in a public house and charged with affray ( using or threatening unlawful violence ) . His licence was revoked and he was recalled to prison . In DATE , having pleaded guilty to the charge of affray , he was sentenced to CARDINAL months’ imprisonment . He was released on licence again in DATE and returned to live with his wife and her CARDINAL children . The couple became estranged and the first applicant left the marital home .

On DATE , the first applicant followed his wife to a public house . He had been drinking and had taken cocaine . The couple argued and the wife ’s daughter , who was present , telephoned the police to alert them to the dispute . The first applicant ordered his wife to get into a car . When the daughter tried to get into the car to protect her mother , the first applicant forcibly removed her . He then drove off with his wife . When the police telephoned her to ascertain if she was safe , the first applicant forced his wife to tell them that she was fine . The first applicant also telephoned the police to tell them that his wife was safe and well . TIME he gave himself up to the police , telling them that he had killed her . A post - mortem examination revealed that the deceased had a broken nose , deep and extensive bruising to her neck ( which was consistent with attempted strangulation ) , and CARDINAL stab wounds to the chest . CARDINAL knives were found at the scene , one of which had a broken blade .

The first applicant pleaded guilty to murder and instructed his counsel not to make any submissions in mitigation lest it add to the grief of the victim ’s family . The trial judge considered that the first applicant fell into that small category of people who should be deprived permanently of their liberty . He passed the mandatory life sentence and made a whole life order .

ORG dismissed his appeal on DATE . It considered the general principles for determining the minimum term of a mandatory life sentence ( as set out in schedule CARDINAL to the DATE Act : see relevant domestic law and practice below ) . It found that , given the circumstances of the offence , there was no reason whatever to depart from the normal principle enshrined in schedule QUANTITY that , where murder was committed by someone who was already a convicted murderer , a whole life order was appropriate for punishment and deterrence .

On DATE , the second applicant ’s parents , his adoptive sister and her CARDINAL young children were shot and killed . The second applicant was subsequently charged and , on DATE , convicted of the murders . The prosecution ’s case was that the murders were premeditated and planned and had been committed for financial gain . It was also alleged that the second applicant had arranged the crime scene so as to mislead the police by making it appear as if his adoptive sister had killed the family and then herself .

The trial judge recommended to the Secretary of ORG that the second applicant serve CARDINAL years’ imprisonment “ as a minimum ” ( his underlining ) . On the trial judge ’s letter to the Secretary of ORG , the Lord Chief Justice added the comment “ for my part I would never release him ” . In DATE , the Secretary of ORG imposed a whole life tariff . The practice at the time was not to inform the prisoner of this decision . By letter dated DATE , the applicant was informed that the Secretary of ORG had concluded that the requirements of retribution and deterrence could only be satisfied by the second applicant remaining in prison for the whole of his life .

In DATE , following the entry into force of section CARDINAL and schedule CARDINAL to LAW , the second applicant applied to ORG for review of the whole life tariff . Having regard to schedule CARDINAL to the LAW , ORG concluded that , given the number of murders involved and the presence of premeditation by the second applicant , the offence plainly fell within that category of cases where the appropriate starting point was a whole life order . Having further regard to statements submitted by the GPE next - of - kin and submissions by the second applicant , including reports as to the behaviour and progress he had made in prison , ORG found that there was no reason to depart from the views of the Lord Chief Justice and the Secretary of ORG . It therefore imposed a whole life order .

The second applicant appealed to ORG , which dismissed the appeal on DATE . The court found that , when the Secretary of ORG had set a whole life tariff in DATE , he had been provided with CARDINAL different judicial recommendations : CARDINAL from the trial judge recommending a minimum term of DATE and CARDINAL from the Lord Chief Justice recommending that the second applicant should never be released . The Secretary of ORG had been entitled to choose between those recommendations or to adopt neither of them . ORG also found that the whole life order imposed by ORG was not only correct but , for the purposes of punishment and retribution , fully justified .

Relying on its previous judgment in NORP v. PERSON ( see paragraph CARDINAL below ) , it found that no issue arose under LAW as the whole life order was not an irreducible life sentence as that term had been used in GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE ... Finally , following its ruling in R v. PERSON ( see paragraph CARDINAL below ) it found that the review procedure created by LAW was compatible with LAW as , properly construed , the relevant statutory provisions meant a prisoner could not be disadvantaged by the outcome of the review : the term to be served could be reduced , or maintained , but it could not be increased or extended .

The second applicant applied to ORG to certify that its judgment concerned a point of law of general public importance which ought to be considered by ORG . That application was refused on DATE .

On DATE the third applicant was convicted after trial in FAC at GPE of CARDINAL counts of murder . The victims were homosexual men and the applicant , himself a homosexual , was alleged to have committed the murders for his own sexual gratification . Each victim was stabbed many times with a large combat knife which the third applicant had bought for that purpose . The first victim was attacked in his home on DATE . Soon after , on DATE of DATE , the third applicant met his second victim in a bar and arranged to take him home for sex ; he instead took him to a forest , stabbed him to death and left the body there . The third victim was stabbed in the caravan where he lived on DATE . Finally , shortly before DATE , the third applicant went to a beach which was well - known for homosexual trysts . He met the fourth victim on the beach and stabbed him there .

Blood from the first and third victims was found on the third applicant ’s jacket and on the knife . Property from DATE and fourth victims was found in his possession . He made extensive admissions about all CARDINAL murders to the police . The police had been unaware of the second victim until the third applicant mentioned him to them . The body was recovered from the forest with his assistance . At trial , the applicant ’s defence was that the murders had been committed by someone else , though he admitted to having been present at all the murders save for that of the second victim .

After the third applicant was convicted , the trial judge passed the mandatory sentence of life imprisonment and recommended to the Secretary of ORG for ORG that , in his view , the applicant should never be released . Upon review , the Lord Chief Justice reported that he thought the minimum period before eligibility for release should be set at DATE . On DATE , the Secretary of ORG decided to set a whole life tariff .

In DATE , pursuant to section CARDINAL and schedule CARDINAL to LAW DATE , the third applicant applied to ORG for review of the whole life tariff set by the Secretary of ORG . In its judgment of DATE ORG rejected the third applicant ’s submission that it should accept the Lord Chief ORG ’s recommendation of a minimum term of DATE . It found that , while weight should be accorded to that recommendation , the Lord Chief Justice did not have regard to the principles set out in schedule CARDINAL as ORG was required to do . It also rejected the submission that an issue arose under LAW given that a whole life tariff had been set by the Secretary of ORG . ORG found that the procedure for applying to ORG under section CARDINAL and schedule CARDINAL of the Act provided the necessary independent review as to whether a prisoner should be released . The court also found that a whole life order would be compatible with Articles CARDINAL and CARDINAL of the Convention . Having regard to the general principles for determining the minimum term of a mandatory life sentence ( as set out in schedule CARDINAL to the Act ) , no issue of arbitrariness arose and whether such a sentence was disproportionate depended on the facts of each case .

The High Court found that , since the case involved the murder of CARDINAL or more persons , sexual or sadistic conduct and a substantial degree of premeditation , under schedule CARDINAL the starting point was a whole life order . There were no mitigating features and even the Lord Chief Justice , in recommending a minimum term of DATE , had shared the trial judge ’s view that it might never be safe to release the third applicant . There were no reasons , therefore , to mitigate the starting point of a whole life order . ORG added that , even if the starting point were a minimum term of DATE , the aggravating features of the murders were such as to make a whole life order appropriate .

On DATE , ORG dismissed the third applicant ’s appeal , finding that ORG was not only entitled , but clearly right , to conclude that a whole life order was appropriate .

It appears that the third applicant , in order to allow him to appeal to ORG , then applied to ORG to certify that its judgment concerned a point of law of general public importance which ought to be considered by ORG . On DATE , he was informed by ORG that , because ORG had refused his application for permission to appeal against sentence ( as opposed to granting permission to appeal against sentence and then dismissing the appeal ) , an application to certify a point of law for ORG could not be made .

In GPE and GPE , the mandatory life sentence for murder is contained in section CARDINAL ) of ORG Act DATE .

The power of the Secretary of ORG to set tariff periods for mandatory life sentence prisoners , as contained in LAW of LAW DATE , was found by ORG to be incompatible with LAW ( PERSON ) v. the Secretary of ORG for ORG [ DATE ] CARDINAL AC CARDINAL . This led to the enactment of LAW DATE and schedules CARDINAL and CARDINAL to that Act .

Section CARDINAL of the CARDINAL Act directs a trial judge , in passing a mandatory life sentence , to determine the minimum term which the prisoner must serve before he or she is eligible for early release on licence . By section CARDINAL ) , this minimum term must take into account the seriousness of the offence . Section CARDINAL ) allows the trial judge to decide that , because of the seriousness of the offence , the prisoner should not be eligible for early release ( in effect , to make a “ whole life order ” ) . Section CARDINAL ) only applies to an offender who is DATE of age or over when he committed the offence . Section CARDINAL ) directs the trial judge , in considering the seriousness of the offence , to have regard inter alia to the principles set out in schedule CARDINAL to the Act .

Schedule DATE provides for CARDINAL different “ starting points ” which may be increased or decreased depending on the presence of aggravating or mitigating features in the offence : a whole life order , a minimum term of DATE imprisonment and a minimum term of DATE imprisonment .

By paragraph PERSON ) of the schedule , if the seriousness of the offence is “ exceptionally high ” the appropriate starting point is a whole life order . Paragraph CARDINAL(CARDINAL ) provides that the following cases would normally fall within this category :

( a ) the murder of CARDINAL or more persons , where each murder involves any of the following—

( i ) a substantial degree of premeditation or planning ,

( ii ) the abduction of the victim , or

( iii ) sexual or sadistic conduct ,

( b ) the murder of a child if involving the abduction of the child or sexual or sadistic motivation ,

( c ) a murder done for the purpose of advancing a political , religious or ideological cause , or

( d ) a murder by an offender previously convicted of murder .

By paragraph CARDINAL ) , if the seriousness of the offence does not fall within paragraph PERSON ) but is “ particularly high ” , the appropriate starting point in determining the minimum term is DATE imprisonment . Paragraph CARDINAL(CARDINAL ) provides that the following cases would normally fall within this category :

( a ) the murder of a police officer or prison officer in the course of his duty ,

( b ) a murder involving the use of a firearm or explosive ,

( c ) a murder done for gain ( such as a murder done in the course or furtherance of robbery or burglary , done for payment or done in the expectation of gain as a result of the death ) ,

( d ) a murder intended to obstruct or interfere with the course of justice ,

( e ) a murder involving sexual or sadistic conduct ,

( f ) the murder of CARDINAL or more persons ,

( g ) a murder that is racially or religiously aggravated or aggravated by sexual orientation , or

( h ) a murder falling within paragraph PERSON ) committed by an offender who was aged DATE when he committed the offence . ”

Paragraphs CARDINAL and CARDINAL provide that , in all other cases , the appropriate starting point in determining the minimum term is DATE imprisonment ( DATE for DATE ) .

Paragraphs CARDINAL and CARDINAL provide that , having chosen a starting point , the trial judge should take into account any aggravating or mitigating factors which may result in a minimum term of any length ( whatever the starting point ) , or in the making of a whole life order .

Paragraph CARDINAL provides that aggravating factors include :

“ ( a ) a significant degree of planning or premeditation ,

( b ) the fact that the victim was particularly vulnerable because of age or disability ,

( c ) mental or physical suffering inflicted on the victim before death ,

( d ) the abuse of a position of trust ,

( e ) the use of duress or threats against another person to facilitate the commission of the offence ,

( f ) the fact that the victim was providing a public service or performing a public duty , and

( g ) concealment , destruction or dismemberment of the body . ”

Paragraph CARDINAL provides that mitigating factors include :

( a ) an intention to cause serious bodily harm rather than to kill ,

( b ) lack of premeditation ,

( c ) the fact that the offender suffered from any mental disorder or mental disability which ( although not falling within section CARDINAL(CARDINAL ) of the Homicide Act DATE ( c. CARDINAL ) ) , lowered his degree of culpability ,

( d ) the fact that the offender was provoked ( for example , by prolonged stress ) in a way not amounting to a defence of provocation ,

( e ) the fact that the offender acted to any extent in self - defence ,

( f ) a belief by the offender that the murder was an act of mercy , and

( g ) the age of the offender . ”

Schedule CARDINAL enacts a series of transitional measures for those prisoners who were given mandatory life sentences prior to the entry into force of section CARDINAL of the Act and whose minimum terms of imprisonment were set by the Secretary of ORG . It also applies to those prisoners whom the Secretary of ORG directed should never be eligible for early release on licence ( that is , those prisoners for whom a whole life tariff had been set ) . Paragraph CARDINAL of the schedule allows both categories of prisoners to apply to ORG . Upon such an application ORG must , in the case of a prisoner who is subject to a minimum term of imprisonment set by the Secretary of ORG , make an order specifying the minimum term that prisoner must serve before he or she is eligible for early release . Under paragraph ORG ) , where the Secretary of ORG notified the prisoner that a whole life tariff had been set , ORG may make an order that the prisoner should not be eligible for release ( “ a whole life order ” ) .

The minimum term set by ORG must not be greater than that previously set by the Secretary of ORG ( paragraph CARDINAL(CARDINAL)(a ) ) .

Similar provisions apply to sentences passed after the commencement of the LAW in respect of murders committed before commencement . Paragraph CARDINAL provides that the court may not make an order which , in its opinion , is greater than that which the Secretary of ORG would have been likely to have made under the previous practice .

In determining an application under paragraph CARDINAL , ORG must have regard inter alia to the seriousness of the offence and , in so doing , must also have regard to the general principles set out in schedule CARDINAL and any recommendations to the Secretary of ORG by the trial judge or the Lord Chief Justice as to the minimum term to be served by the offender before release on licence ( DATE and CARDINAL of schedule CARDINAL ) . The offender may also make representations to ORG , including representations as to his or her behaviour and progress in prison since the offence , before ORG determines the application . Representations can also be made by the victim or GPE families . ORG may also hold an oral hearing in rare cases .

Section CARDINAL(CARDINAL ) of ORG ( Sentences ) Act DATE provides that the Secretary of ORG may at any time release a life prisoner on licence if he is satisfied that exceptional circumstances exist which justify the prisoner ’s release on compassionate grounds .

The criteria for the exercise of that discretion are set out in Prison Service Order CARDINAL chapter CARDINAL , which , where relevant , provides :

“ • the prisoner is suffering from a terminal illness and death is likely to occur very shortly ( although there are no set time limits , DATE may be considered to be an appropriate period for an application to be made to ORG [ PPCS ] ) , or the ORG ( Indeterminate Sentenced Prisoner ) is bedridden or similarly incapacitated , for example , those paralysed or suffering from a severe stoke ;

and

• the risk of re - offending ( particularly of a sexual or violent nature ) is minimal ;

and

• further imprisonment would reduce the prisoner ’s life expectancy ;

and

• there are adequate arrangements for the prisoner ’s care and treatment outside prison ;

and

• early release will bring some significant benefit to the prisoner or his / her family . ”

According to the ORG , as of DATE , CARDINAL prisoners were serving mandatory life sentences for murder in GPE and GPE . CARDINAL prisoners were subject to whole life orders ( including those held in secure hospitals ) . Since DATE , CARDINAL whole life orders had been imposed , CARDINAL of which were subsequently reduced by ORG . Since DATE , no prisoner serving a whole life term had been released on compassionate grounds . In response to a freedom of information request by the first applicant , ORG indicated that , as of DATE , CARDINAL life - sentence prisoners who had not been given whole life terms had been released on compassionate grounds .

In NORP v. PERSON and NORP v. PERSON [ DATE ] CARDINAL PERSON , ORG considered that , in its operation at that time , a mandatory life sentence was not incompatible with either Articles CARDINAL or CARDINAL of the Convention .

Such a sentence was partly punitive , partly preventative . The punitive element was represented by the tariff term , imposed as punishment for the serious crime which the convicted murderer had committed . The preventative element was represented by the power to continue to detain the convicted murderer in prison unless and until ORG , an independent body , considered it safe to release him , and also by the power to recall to prison a convicted murderer who had been released if it was judged necessary to recall him for the protection of the public ( Lord GPE of Cornhill at paragraph CARDINAL of the judgment ) .

ORG therefore held firstly , that the appellant ’s complaints were not of sufficient gravity to engage LAW and secondly , that the life sentence was not arbitrary or otherwise contrary to LAW . Lord PERSON added :

“ If the ORG had concluded that on imposition of a mandatory life sentence for murder the convicted murderer forfeited his liberty to the state for the rest of DATE , to remain in custody until ( if ever ) the Home Secretary concluded that the public interest would be better served by his release than by his continued detention , I would have little doubt that such a sentence would be found to violate articles CARDINAL and CARDINAL of ORG ... as being arbitrary and disproportionate . ”

In NORP v. Secretary of ORG for ORG , ex parte PERSON [ DATE ] CARDINAL AC CARDINAL , ORG and PERSON [ DATE ] CARDINAL AC CARDINAL , ORG , ORG found that , under the tariff system then in operation , there was “ no reason , in principle , why a crime or crimes , if sufficiently heinous should not be regarded as deserving lifelong incarceration for purposes of pure punishment ” ( per Lord PERSON at pp . PERSON ) . Lord PERSON also observed : “ there is nothing logically inconsistent with the concept of a tariff by saying that there are cases were the crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence ” ( p. CARDINAL ) . ORG also found that the Secretary of ORG had not unlawfully fettered his discretion in reviewing the cases of prisoners where a whole life tariff was in place after the prisoner had served DATE imprisonment and reducing the tariff in appropriate cases . ) . The judgment records the Secretary of ORG ’s policy statement of DATE , in which the Secretary of ORG indicated that he was : “ open to the possibility that , in exceptional circumstances , including for example , exceptional progress by the prisoner whilst in custody , a review and reduction of the tariff may be appropriate . ” The Secretary of ORG indicated that he would have this possibility in mind when reviewing at DATE point the cases of prisoners given a whole life tariff and in that respect would consider issues beyond the sole criteria of retribution and deterrence ( p. CARDINAL - C ) .

NORP In NORP v. PERSON [ DATE ] CARDINAL WLR CARDINAL ORG considered the compatibility of the DATE LAW in the light of GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE ...

It found that a whole life order did not contravene LAW possibility of compassionate release by the Secretary of ORG . It also found that the imposition of an irreducible life sentence would not itself constitute a violation of LAW but rather that a potential violation would only occur once the offender had been detained beyond the period that could be justified on the ground of punishment and deterrence . The court observed :

“ CARDINAL . While under LANGUAGE law the offence of murder attracts a mandatory life sentence , this is not normally an irreducible sentence . The judge specifies the minimum term to be served by way of punishment and deterrence before the offender ’s release on licence can be considered . Where a whole life term is specified this is because the judge considers that the offence is so serious that , for purposes of punishment and deterrence , the offender must remain in prison for the rest of DATE . For the reasons that we have given , we do not consider that the GPE court has ruled that an irreducible life sentence , deliberately imposed by a judge in such circumstances , will result in detention that violates article CARDINAL . Nor do we consider that it will do so .

It may be that the approach of the GPE court will change . There seems to be a tide in LOC that is setting against the imposition of very lengthy terms of imprisonment that are irreducible . Thus it may become necessary to consider whether whole life terms imposed in this jurisdiction are , in fact irreducible .

Under the regime that predated LAW it was the practice of the Secretary of ORG to review the position of prisoners serving a whole life tariff after they had served DATE with a view to reducing the tariff in exceptional circumstances , such as where the prisoner had made exceptional progress whilst in custody . No suggestion was then made that the imposition of a whole life tariff infringed article CARDINAL .

Under the current regime the Secretary of ORG has a limited power to release a life prisoner under LAW DATE .

At present it is the practice of the Secretary of ORG to use this power sparingly , in circumstances where , for instance , a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated . If , however , the position is reached where the continued imprisonment of a prisoner is held to amount to inhuman or degrading treatment , we can see no reason why , having particular regard to the requirement to comply with the LAW , the Secretary of ORG should not use his statutory power to release the prisoner .

DATE . For these reasons , applying the approach of the GPE court in PERSON v GPE DATE , we do not consider that a whole life term should be considered as a sentence that is irreducible . Any article QUANTITY challenge where a whole life term has been imposed should therefore be made , not at the time of the imposition of the sentence , but at the stage when the prisoner contends that , having regard to all the material circumstances , including the time that he has served and the progress made in prison , any further detention will constitute degrading or inhuman treatment .

For these reasons we reject the challenge made to the defendant ’s sentence that is founded on article CARDINAL .

CARDINAL We would add , for the avoidance of doubt , that we have not been asked to consider , nor have we , whether the decision under LAW is one that should properly be taken by a judge rather than by a minister . ”

The transitional measures set out in schedule CARDINAL were found by ORG to be compatible with Articles CARDINAL and CARDINAL of the Convention in R v. Pitchfork [ DATE ] EWCA Crim CARDINAL . The schedule expressly provided that the outcome of the High Court review could not be an increase in the minimum period set by the Secretary of ORG . It was not in breach of LAW to direct ORG to consider the general principles set out in schedule CARDINAL : neither those principles nor the original recommendations by the trial judge and the Lord Chief Justice were to enjoy primacy over the other . Instead , ORG was conducting a fresh review , taking account of both the judicial recommendations and schedule CARDINAL .

In NORP v. PERSON and Others [ DATE ] CARDINAL Cr . App . PERSON CARDINAL ORG held that protection of the public was not a relevant factor in fixing the minimum term , since it was the task of ORG to ensure that the offender was not released after serving the minimum term unless this presented no danger to the public . The court also held :

“ A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of his or her life . Often , perhaps usually , where such an order is called for the case will not be on the borderline . The facts of the case , considered as a whole , will leave the judge in no doubt that the offender must be kept in prison for the rest of his or her life . Indeed if the judge is in doubt this may well be an indication that a finite minimum term which leaves open the possibility that the offender may be released for DATE of his or her life is the appropriate disposal . To be imprisoned for a finite period of DATE or more is a very severe penalty . If the case includes CARDINAL or more of the factors set out in para.CARDINAL(CARDINAL ) it is likely to be a case that calls for a whole life order , but the judge must consider all the material facts before concluding that a very lengthy finite term will not be a sufficiently severe penalty . ”

In Attorney - General ’s Reference No CARDINAL of DATE ( also known as R v. ORG ) [ DATE ] PERSON , the offender had been convicted of murder in DATE , and was notified of the decision of the Secretary of ORG to set a whole life tariff in DATE . Upon an application to ORG , the whole life tariff was substituted by a minimum term of DATE imprisonment . That decision was reviewed by ORG , which increased the minimum term to DATE imprisonment . ORG also observed that it remained open to ORG to consider the recommendation of the trial judge and Lord Chief Justice in their contemporaneous context but , as in any case , the findings and views of the trial judge represented a critical element in any sentencing decision . The recommendations were not subsidiary to the provisions in schedule CARDINAL and paragraph CARDINAL ) of schedule CARDINAL made it clear that proper weight should be given to these recommendations in the review process . ORG accepted that the recommendations in the case before it , and in many cases like it , would be “ likely to have been made in a sentencing environment in which the term to be served would be likely to be shorter than it is now ” .

In NORP v. PERSON [ DATE ] CARDINAL Cr . App . NORP ( NORP ORG the Court of Appeal stated that schedule CARDINAL provided an even more rigorous approach to the determination of the minimum term than had applied previously and , when followed , would in some cases lead to longer minimum terms . However , in that case , which concerned a sentence passed after the commencement of the DATE Act in respect of a murder committed before its commencement , the court went on to state that the scheme was compatible with Articles CARDINAL and CARDINAL of the LAW , given the transitional measures contained in paragraph CARDINAL of schedule CARDINAL .

GPE requested the extradition of GPE from GPE to stand trial in GPE on CARDINAL counts of murder in the first degree . In his appeal against extradition , Mr GPE argued that his surrender would violate LAW , on the basis that there was a real risk that he would be subjected to inhuman and degrading treatment in the form of a sentence of life imprisonment without parole .

In giving judgment in ORG ( [ DATE ] EWHC CARDINAL ( Admin ) ) , Lord Justice Laws found that there were “ powerful arguments of penal philosophy ” which suggested that risk of a whole - life sentence without parole intrinsically violated LAW . He observed :

“ The abolition of the death penalty has been lauded , and justified , in many ways ; but it must have been founded at least on the premise that the life of every person , however depraved , has an inalienable value . The destruction of a life may be accepted in some special circumstances , such as self - defence or just war ; but retributive punishment is never enough to justify it . Yet a prisoner ’s incarceration without hope of release is in many respects in like case to a sentence of death . He can never atone for his offence . However he may use his incarceration as time for amendment of life , his punishment is only exhausted by his last breath . Like the death sentence the whole - life tariff is lex talionis . But its notional or actual symmetry with the crime for which it is visited on the prisoner ( the only virtue of the lex talionis ) is a poor guarantee of proportionate punishment , for the whole - life tariff is arbitrary : it may be measured in DATE or DATE according to how long the prisoner has to live . It is therefore liable to be disproportionate – the very vice which is condemned on LAW unless , of course , the death penalty ’s logic applies : the crime is so heinous it can never be atoned for . But in that case the supposed inalienable value of the prisoner ’s life is reduced , merely , to his survival : to nothing more than his drawing breath and being kept , no doubt , confined in decent circumstances . That is to pay lip - service to the value of life ; not to vouchsafe it . ”

However , and “ not without misgivings ” , he considered that the relevant authorities , including those of this ORG , suggested an irreducible life sentence would not always raise an Article CARDINAL issue .

On GPE ’s appeal to ORG , a majority of their ORG found that LAW , insofar as it applied to inhuman and degrading treatment and not to torture , was applicable only in attenuated form to extradition cases . In any event , all five Law Lords found that the sentence likely to be imposed on the appellant would not be irreducible ; having regard to the powers of clemency and commutation of LOC GPE , it would be just as reducible as the sentence at issue in GPE .

All five Law Lords also noted that , in GPE , the ORG had only said that the imposition of an irreducible life sentence may raise an issue under LAW . They found that the imposition of a whole life sentence would not constitute inhuman and degrading treatment in violation of LAW , unless it were grossly or clearly disproportionate . Lord PERSON in particular noted :

“ Having puzzled long over this question , I have finally concluded that the majority of ORG [ in GPE ] would not regard even an irreducible life sentence — by which , as explained , I understand the majority to mean a mandatory life sentence to be served in full without there ever being proper consideration of the individual circumstances of the defendant ’s case — as violating article CARDINAL unless and until the time comes when further imprisonment would no longer be justified on any ground — whether for reasons of punishment , deterrence or public protection . It is for that reason that the majority say only that article CARDINAL may be engaged . ”

NORP Moreover , Lord PERSON , Lord PERSON , ORG and Lord PERSON all doubted Lord Justice Laws’ view ( endorsed by ORG – see section CARDINAL below ) that life imprisonment without parole was lex talionis . Lord PERSON , ORG and Lord PERSON did not accept his premise that the abolition of the death penalty had been founded on the idea that the life of every person had an inalienable value ; there were other , more pragmatic reasons for abolition such as its irreversibility and lack of deterrent effect . Lord PERSON rejected the view that an irreducible life sentence was inhuman and degrading because it denied a prisoner the possibility of atonement ; once it was accepted that a whole life sentence could be a just punishment , atonement was achieved by the prisoner serving his sentence .

GPE ’s application to this Court was struck out on DATE , the applicant having indicated his wish to withdraw it ; GPE v. GPE DATE . ) , no . CARDINAL/CARDINAL .

The relevant texts of ORG , ORG and other international legal texts on the imposition and review of sentences of life imprisonment , including the obligations of ORG member GPE when extraditing individuals to GPE where they may face such sentences , are set out in GPE , cited above , at § § DATE . Additional materials before the ORG in the present cases ( and those materials in GPE that are expressly relied on by the parties ) may be summarised as follows .

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) prepared a report on “ Actual / Real Life Sentences ” dated DATE ( ORG ( DATE ) DATE ) . The report reviewed various ORG texts on life sentences , including recommendations ( DATE ) CARDINAL and DATE , and stated in terms that : ( a ) the principle of making conditional release available is relevant to all prisoners , “ even to life prisoners ” ; and ( b ) that all ORG member ORG had provision for compassionate release but that this “ special form of release ” was distinct from conditional release .

It noted the view that discretionary release from imprisonment , as with its imposition , was a matter for the courts and not the executive , a view which had led to proposed changes in the procedures for reviewing life imprisonment in GPE , GPE and GPE . The report also quoted with approval the ORG ’s report on its DATE visit to GPE in which it stated :

“ [ ORG regards “ actual lifers ” , the ORG has serious reservations about the very concept according to which such prisoners , once they are sentenced , are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release ” .

The report ’s conclusion included recommendations that : no category of prisoners should be “ stamped ” as likely to spend their natural life in prison ; no denial of release should ever be final ; and not even recalled prisoners should be deprived of hope of release .

Article CARDINAL of LAW of ORG allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person . Such a sentence must be reviewed after DATE to determine whether it should be reduced ( LAW .

Article CARDINAL(CARDINAL ) of ORG of DATE on the NORP arrest warrant provides :

“ if the offence on the basis of which the NORP arrest warrant has been issued is punishable by custodial life sentence or life - time detention order , the execution of the said arrest warrant may be subject to the condition that the issuing Member ORG has provisions in its legal system for a review of the penalty or measure imposed , on request or at DATE , or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member ORG , aiming at a non - execution of such penalty or measure ... ”

According to a comparative study provided by the applicants ( NORP PERSON , “ Outlawing Irreducible Life Sentences : LOC on the LOC ? ” , CARDINAL : CARDINAL Federal Sentencing Reporter PERSON , No CARDINAL ( DATE ) ) the majority of NORP countries do not have irreducible life sentences , and some , including GPE , GPE and GPE , do not have life sentences at all . In GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE , prisoners sentenced to life imprisonment have fixed periods after which release is considered . In GPE CARDINAL such prisoners have no minimum period but it appears they can be considered for release after DATE . In GPE there are provisions for indeterminate sentences for dangerous offenders where release can only follow new scientific evidence that the prisoner was not dangerous , although the provisions have not been used . The study concludes that only the GPE and GPE and GPE have irreducible life sentences .

Article CARDINAL of LAW provides that human dignity shall be inviolable . Article CARDINAL ) provides :

“ Every person shall have the right to life and physical integrity . Freedom of the person shall be inviolable . These rights may be interfered with only pursuant to a law . ”

The compatibility of a mandatory sentence of life imprisonment for murder with these provisions was considered by ORG in the Life Imprisonment case of DATE , CARDINAL BVerfGE CARDINAL ( an LANGUAGE translation of extracts of the judgment , with commentary , can be found in PERSON , LAW ( CARDINALnd ed . ) , ORG , GPE and GPE , DATE at pp . CARDINAL - CARDINAL ) .

The court found that the ORG could not turn the offender into an object of crime prevention to the detriment of his constitutionally protected right to social worth . Respect for human dignity and the rule of law meant the humane enforcement of life imprisonment was possible only when the prisoner was given “ a concrete and realistically attainable chance ” to regain his freedom at some later point in time .

The court underlined that prisons also had a duty to strive towards the re - socialisation of prisoners , to preserve their ability to cope with life and to counteract the negative effects of incarceration and the destructive changes in personality that accompanied imprisonment . It recognised , however , that , for a criminal who remained a threat to society , the goal of rehabilitation might never be fulfilled ; in that case , it was the particular personal circumstances of the criminal which might rule out successful rehabilitation rather than the sentence of life imprisonment itself . The court also found that , subject to these conclusions , life imprisonment for murder was not a senseless or disproportionate punishment .

In the later War Criminal case CARDINAL BVerfGE CARDINAL ( DATE ) , where the petitioner was DATE of age and had served DATE of a life sentence imposed for sending CARDINAL people to the gas chambers , the court considered that the gravity of a person ’s crime could weigh upon whether he or she could be required to serve his or her life sentence . However , a judicial balancing of these factors should not place too heavy an emphasis on the gravity of the crime as opposed to the personality , state of mind , and age of the person . In that case , any subsequent review of the petitioner ’s request for release would be required to weigh more heavily than before the petitioner ’s personality , age and prison record .

In its decision of DATE , BVerfG , DATE , ORG considered an extradition case where the offender faced “ aggravated life imprisonment until death ” ( erschwerte lebenslängliche GPE bis zum PERSON ) in GPE . The NORP government had sought assurances that he would be considered for release and had received the reply that the President of GPE had the power to remit sentences on grounds of chronic illness , disability , or old age . The court refused to allow extradition , finding that this power of release offered only a vague hope of release and was thus insufficient . Notwithstanding the need to respect foreign legal orders , if someone had no practical prospect of release such a sentence would be cruel and degrading ( grausam und erniedrigend ) and would infringe the requirements of human dignity provided for in LAW .

Section CARDINAL of LAW provides that the LAW guarantees the rights and freedoms set out in it “ subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society . ” LAW provides :

“ Everyone has the right to life , liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice . ”

Section CARDINAL provides :

“ Everyone has the right not to be subjected to any cruel and unusual treatment or punishment . ”

In GPE v. PERSON [ DATE ] S.C.R. CARDINAL , PERSON and another ( the respondents ) were to be extradited from GPE to the ORG of GPE to stand trial for murders allegedly committed when they were both DATE . Before making the extradition order the NORP Minister of ORG had not sought assurances that the death penalty would not be imposed . ORG found that the remoteness between the extradition and the potential imposition of capital punishment meant the case was not appropriately considered under section CARDINAL but under section CARDINAL . However , the values underlying section CARDINAL could form part of the balancing process engaged under section CARDINAL . The extradition of the respondents would , if implemented , deprive them of their rights of liberty and security of person as guaranteed by section CARDINAL . The issue was whether such a deprivation was in accordance with the principles of fundamental justice . While extradition could only be refused if it “ shocked the conscience ” an extradition that violated the principles of fundamental justice would always do so . The court balanced the factors that favoured extradition against those that favoured seeking assurances that the death penalty would not be sought . The latter included the fact that a degree of leniency for youth was an accepted value in the administration of justice , even for young offenders over DATE . The court concluded that the objectives sought to be advanced by extradition without assurances would be as well served by extradition with assurances . The court held therefore that assurances were constitutionally required by section CARDINAL in all but exceptional cases .

In GPE v. PERSON ; GPE v. GPE , [ DATE ] CARDINAL SCR CARDINAL , the appellants were to be extradited to GPE to face charges of fraud ( the PERSON case ) or trafficking of cocaine ( the GPE case ) . The appellants in the GPE case had argued that , if extradited and convicted they could receive sentences of DATE to life without parole and this would “ shock the conscience ” . In dismissing the appeals , ORG affirmed the balancing approach laid down in PERSON to determining whether potential sentences in a requesting state would “ shock the conscience ” . The harsher sentences the appellants might receive if convicted in GPE were among the factors militating against their surrender but they had offered no evidence or case - law to back up their assertions that the possible sentences would shock the conscience of NORP . The factors favouring extradition far outweighed those that did not .

ORG has also found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment within the meaning of section CARDINAL of the Charter ( see , inter alia , R v. PERSON ( PERSON ) [ DATE ] CARDINAL SCR CARDINAL ) . In R v. PERSON [ DATE ] CARDINAL S.C.R. CARDINAL , the court considered that , for first degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . Similarly , in R v. PERSON DATE CARDINAL SCR CARDINAL , for second degree murder , a mandatory minimum sentence of life imprisonment without eligibility for parole for DATE was not grossly disproportionate . The court observed that gross disproportionality would only be found on “ rare and unique occasions ” and that test for determining this issue was “ very properly stringent and demanding ” .

In Dodo v. the ORG ( CCT CARDINAL/CARDINAL ) [ DATE ] ZACC CARDINAL , ORG considered whether a statutory provision which required a life sentence for certain offences including murder , was compatible with the constitutional principle of the separation of powers , the accused ’s constitutional right to a public trial and the constitutional prohibition on cruel , inhuman or degrading treatment or punishment . The court found none of these constitutionals provisions was infringed , since the statute allowed a court to pass a lesser sentence if there were substantial and compelling circumstances . The court did , however , observe that the concept of proportionality went to the heart of the inquiry as to whether punishment was cruel , inhuman or degrading .

In PERSON v. The ORG ( ORG CARDINAL/CARDINAL ) [ DATE ] ZACC CARDINAL , the court found an indeterminate sentence imposed pursuant to a declaration that the defendant was a “ habitual criminal ” to be grossly disproportionate because it could amount to life imprisonment for a non - violent offender . The court “ read in ” a maximum sentence of DATE to the relevant statute .

LAW to LAW provides , inter alia , that cruel and unusual punishments shall not be inflicted . It has been interpreted by ORG as prohibiting extreme sentences that are grossly disproportionate to the crime ( PERSON v. GPE CARDINAL PERSON . DATE , DATE ( DATE ) ) . There are CARDINAL categories of cases addressing proportionality of sentences .

The first category is a case - by - case approach , , the court compares the sentence in question with sentences for the same crime in the same jurisdiction and other jurisdictions . If that analysis confirms the initial inference of gross disproportionality , a violation of LAW is established .

In the second category of cases , ORG has invoked proportionality to adopt “ categorical rules ” prohibiting a particular punishment from being applied to certain crimes or certain classes of offenders .

Under the first category , ORG has struck down as grossly disproportionate a sentence of life imprisonment without parole imposed on a defendant with previous convictions for passing a worthless cheque ( PERSON v. Helm CARDINAL GPE CARDINAL ( DATE ) ) . It has upheld the following sentences : life with the possibility of parole for obtaining money by false pretences ( PERSON v. PERSON GPE CARDINAL ( DATE ) ) ; life imprisonment without parole for possessing a large quantity of cocaine ( GPE v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE to life for theft under a “ CARDINAL strikes ” recidivist sentencing law ( PERSON v. GPE CARDINAL GPE CARDINAL ( DATE ) ) ; DATE years’ imprisonment for distributing marijuana ( PERSON v. ORG ( DATE ) ) .

Examples of cases considered under the second category include ORG v. GPE CARDINAL GPE CARDINAL ( DATE ) ( prohibiting capital punishment for rape ) and PERSON v. PERSON MONEY ( DATE ) ( prohibiting capital punishment for juveniles DATE ) . In PERSON , cited above , the court held that LAW also prohibited the imposition of life imprisonment without parole on a juvenile offender who did not commit homicide . The court found that life imprisonment without parole was an especially harsh punishment for a juvenile and that the remote possibility of pardon or other executive clemency did not mitigate the harshness of the sentence . Although a ORG was not required to guarantee eventual freedom to a juvenile offender convicted of a non - homicide crime , it had to provide some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation . The court also held that a sentence lacking in legitimate penological justification ( such as retribution , deterrence , incapacitation and rehabilitation ) was , by its nature , disproportionate . Such purposes could justify life without parole in other contexts , but not life without parole for juvenile non - homicide offenders .

DATE . In PERSON v. the Queen [ DATE ] ORG CARDINAL ORG of ORG considered that a mandatory death penalty for murder by shooting was incompatible with section CARDINAL of LAW , which prohibits torture and ill - treatment in identical terms to LAW . Lord PERSON observed that to deny the offender the opportunity , before sentence is passed , to seek to persuade the court that in all the circumstances to condemn him to death would be disproportionate and inappropriate was to treat him as no human being should be treated . The relevant law was not saved by the powers of pardon and commutation vested by the LAW in FAC , assisted by ORG ; in Lord PERSON ’s words “ a non - judicial body can not decide what is the appropriate measure of punishment to be visited on a defendant for the crime he has committed ” .

In PERSON v. the State of GPE [ DATE ] UKPC CARDINAL the appellant had been sentenced to death . With the abolition of the death penalty in GPE , his sentence was commuted to a mandatory life sentence . ORG considered the ORG ’s judgment in GPE , cited above , and found that the safeguards available in GPE to prevent PERSON from being without hope of release were not available in GPE . ORG had interpreted such a sentence as condemning PERSON to penal servitude for the rest of his life and the provisions of the relevant legislation on parole and remission did not apply . This meant the sentence was manifestly disproportionate and arbitrary and so contrary to section CARDINAL of LAW ( provisions to secure protection of law , including the right to a fair trial ) . It had also been argued by the appellant that the mandatory nature of the sentence violated section QUANTITY ( the prohibition of torture , inhuman or degrading punishment or other such treatment ) . In light of its conclusion on section CARDINAL , the ORG considered it unnecessary to decide that question or to consider the relevance of the possibility of release under section CARDINAL ( the presidential prerogative of mercy ) . It did , however , find that the safeguards available in GPE ( in the form of the Attorney - General ’s powers to recommend release and the President ’s powers to commute sentences or decree release ) were not available in GPE . It also acknowledged the appellant ’s argument that , as with the mandatory sentence of death it had considered in PERSON , a mandatory sentence of life imprisonment did not allow for consideration of the facts of the case . ORG also considered any differences between mandatory sentences of death and life imprisonment could be exaggerated and , to this end , quoted with approval the dicta of Lord PERSON in PERSON and Lord Justice Laws in GPE ( at DATE and CARDINAL above ) .

In ORG v. PERSON [ DATE ] ORG CARDINAL , ORG held that a mandatory sentence of CARDINAL years’ imprisonment for murder amounted to inhuman or degrading treatment in violation of section CARDINAL on the grounds that it was disproportionate .

In ORG v. Tcoeib [ DATE ] CARDINAL LRC CARDINAL ORG considered the imposition of a discretionary life sentence to be compatible with section CARDINAL of the country ’s constitution ( subsection ( c ) of which is identical to LAW ) . Chief Justice PERSON , for the unanimous court , found the relevant statutory release scheme to be sufficient but observed that if release depended on the “ capricious exercise ” of the discretion of the prison or executive authorities , the hope of release would be “ too faint and much too unpredictable ” for the prisoner to retain the dignity required by section CARDINAL . It was also observed that life imprisonment could amount to cruel , inhuman or degrading treatment if it was grossly disproportionate to the severity of the offence . ORG of GPE found mandatory minimum sentences for robbery and possession of firearms to be grossly disproportionate in ORG v. PERSON CARDINAL LRC CARDINAL and ORG v Likuwa [ DATE ] CARDINAL LRC CARDINAL .

In PERSON v. GPE [ DATE ] HKCFA CARDINAL , ORG rejected a challenge to the mandatory life sentence for murder . It found that the possibility of regular review of the sentence by an independent board meant it was neither arbitrary nor grossly disproportionate and thus it did not amount to cruel , inhuman or degrading punishment .

Section CARDINAL of the New Zealand LAW DATE also protects against disproportionately severe treatment or punishment .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by PERSON PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

In DATE , ORG and Highways ( PERSON ) , a state body responsible , inter alia , for motorway construction , expropriated a plot of land belonging to the applicant in GPE . A committee of experts assessed the value of the plot of land and this amount was paid to the applicant when the expropriation took place .

On DATE , following the applicant ’s request for increased compensation , ORG awarded him an additional compensation of MONEY ( TRL ) plus an interest at the statutory rate of PERCENT per annum .

On DATE ORG upheld the decision of the firstinstance court . The due amount , which was MONEY ( TRL ) including the interest , was paid to the applicant on DATE .

Under PERSON no . CARDINAL of DATE the rate of interest on overdue ORG debts was set at PERCENT per annum . As of DATE the statutory rate of interest was increased to PERCENT . The statutory rate of interest was set at the compound interest rate , namely PERCENT as of DATE .

A description of further relevant domestic law may be found in the Aka v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI , § § CARDINAL - CARDINAL ; ORG v. GPE , judgment of DATE , Reports CARDINAL-IV , § § CARDINAL - CARDINAL .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicants are NORP citizens . They live respectively in GPE and PERSON . The application concerns proceedings initiated by PERSON , who died on DATE . After her death , her son ORG – PERSON and her daughter PERSON , born PERSON , continued the proceedings . PERSON – PERSON died on DATE . His widow PERSON and his daughter PERSON act in his stead in pursuing the case .

The husband of the original plaintiff PERSON worked between DATE and DATE as an asbestos fabric cutter in an area where asbestos mattresses were manufactured . During this period , the workers who were exposed to asbestos dust while working had to clean their clothes themselves . This was done by the original plaintiff PERSON Janssen for her husband . The husband contracted an asbestos dust – related lung disease ( asbestosis ) , which was recognised as an occupational disease by ORG ( Maschinenbau- und ORG ) . ORG paid the husband a pension until his death on DATE and subsequently a widow ’s and orphan ’s pension to the surviving family members .

Having contracted a mesothelioma , an asbestosis related disease , PERSON applied on DATE to ORG for compensation payments , claiming that her illness was the consequence of the daily cleaning of her husband ’s work clothes . On DATE ORG dismissed her request holding that her activity was not covered by the industrial health insurance , since she had acted on a strictly private basis and not as an employee .

On DATE PERSON filed an objection ( Widerspruch ) against this decision which was rejected on DATE by ORG .

On CARDINAL DATE PERSON commenced proceedings before ORG ( ORG ) .

On DATE ORG invited the defendant ORG to comment on the claim and to submit the file . On DATE PERSON lawyer telephoned the court and requested that a date be fixed for a hearing as soon as possible . He expressed the fear that the plaintiff would not live to attend a hearing in DATE or DATE . On DATE ORG sent written observations and the administrative file to ORG . PERSON died on DATE . Written observations on her behalf were submitted on CARDINAL DATE . On CARDINAL DATE the court received a power of attorney on behalf of the applicants as heirs of PERSON without any further explanation . On CARDINAL DATE the parties were summoned to appear at a hearing on CARDINAL DATE . This hearing was cancelled on DATE .

On DATE the plaintiff ’s counsel informed the court about PERSON death . On DATE ORG requested the plaintiff ’s counsel to indicate the successors in title . It sent a reminder on DATE . The court received the requested information on DATE .

The proceedings were resumed on DATE . On CARDINAL DATE the parties were summoned to appear at a hearing on DATE . On CARDINAL DATE the plaintiff ’s counsel requested to anticipate TIME of the hearing . On DATE ORG cancelled the hearing . On DATE the court set the case down for hearing on DATE .

On DATE ORG dismissed the action on the ground that , pursuant to LAW and CARDINAL of LAW ( PERSON ) , the plaintiff was not insured against accidents at work . The court found that PERSON had not been an employee herself , nor had she acted like an employee . She had cleaned her deceased husband ’s clothes on ground of their living together , but not with a view to acting for her husband ’s employer .

On DATE the legal successors of the deceased appealed against the judgment to ORG ( ORG ) of GPE . The appeal was received by the court on DATE .

At a hearing held on DATE ORG summoned the employer to take part in the proceedings and requested him to submit information as to the kind of work carried out by his former employee DATE and as to the protection requirements to be complied with . The employer supplied information on DATE . The defendant filed written pleadings on DATE . On CARDINAL DATE ORG instructed doctors who had treated PERSON to submit reports . The court obtained medical reports from a general practitioner , PERSON , on DATE and from a hospital doctor , PERSON , on DATE . On DATE the court requested additional information which was submitted on DATE .

On DATE ORG had also instructed a medical expert , Prof . PERSON , to submit a report on the awareness at that time of health risks related to the exposure to asbestos and the existence of any protective measures . On DATE ORG had invited Prof . PERSON to reply to further detailed questions . Prof . PERSON ’s report dated CARDINAL DATE was received by the court on DATE .

On CARDINAL DATE the court summoned ORG ( Rheinischer Gemeindeunfallversicherungs- verband ) as a third party . It further requested Prof . PERSON to submit an expert opinion on the causes of PERSON mesothelioma disease . On DATE Prof . PERSON asked the court for certain information .

On DATE the court applied to ORG and a witness for further information .

On DATE the court sought supplementary advice from Prof . PERSON and supplied the information he had requested on CARDINAL DATE . On DATE the court reminded the expert to submit his report . The expert opinion dated DATE was received by the court on DATE .

By a judgment of CARDINAL DATE ORG modified the judgment pronounced on DATE by ORG . ORG considered that PERSON death was the consequence of an occupational disease . The court granted leave of appeal on points of law holding that the case raised issues of general interest ( grundsätzliche GPE ) .

ORG lodged an appeal on points of law ( Revision ) .

On DATE , PERSON son died . His widow and his daughter continued the proceedings as his legal successors .

By a judgment of CARDINAL DATE ORG ( GPE ) set the appellate court ’s judgment aside and dismissed the GPE appeal . ORG considered in particular that PERSON death was not the consequence of an occupational disease as the cleaning of her husband ’s work clothes mainly served the interests of the couple ’s household and not the employer ’s interests .

On DATE the applicants lodged a constitutional complaint alleging that the interpretation of Section CARDINAL of LAW by the social security courts of first and last instance violated the principle of equality before the law and the right to a fair hearing . Invoking LAW , the applicants further submitted that proceedings relating to professional diseases allegedly caused by asbestos lasted in general too long .

On DATE a panel of CARDINAL judges of ORG ( Bundesverfassungsgericht ) declined to accept the case for adjudication on the ground that the constitutional appeal was inadmissible for lack of substantiation . The court further pointed out that a constitutional complaint could not be based on an alleged violation of ORG . This decision was notified to the applicants’ lawyer on DATE .


Violation of Art. 3 (ill treatment while in detention and failure to conduct an effective investigation);Not necessary to examine Art. 13;Reminder inadmissible;Violation of Art. 34;Non-pecuniary damage - financial award;Costs and expenses - partial award (Convention proceedings)

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

On DATE the applicant was arrested on charges of assaulting a police officer .

On DATE and DATE the applicant was allegedly tortured by police officer GPE and CARDINAL other police officers in order to extract a confession from him . According to the applicant , his hands and feet were tied together behind his back and a metal bar from a coat hanger was passed under his arms . The metal bar was placed on CARDINAL chairs and his body was suspended for TIME . His hands had been covered with cloth so that no traces of rope would remain on them . Loud music was played so that his cries would not be heard . While being suspended in this manner , his head was covered with a coat and he was beaten with a chair on the back of his head . These acts of brutality were accompanied by verbal and psychological aggression . The Government contested the allegations of ill - treatment .

DATE , after being taken to his cell , the applicant attempted to commit suicide by cutting his veins . However , his attempt was not successful and he was taken to hospital .

On DATE the applicant was allowed for the first time to have contact with his lawyer , but only in the presence of police officers . The applicant complained to the lawyer that he had been tortured .

According to the applicant , as a retaliatory measure for his complaint to the lawyer , TIME he was again tortured . He was hit on the head with a QUANTITY plastic bottle full of water and also punched and kicked . The Government disputed these allegations .

On DATE the applicant 's lawyer lodged with the ORG prosecutor 's office a criminal complaint concerning the alleged ill - treatment of the applicant .

On DATE the applicant was taken by the police officers who had allegedly ill - treated him to ORG , where he underwent a medical check - up in their presence . His lawyer was not present and , according to the applicant , the medical examination only lasted TIME and was superficial .

The medical report issued by ORG was dated DATE and concluded that besides the injury caused by his attempted suicide , the applicant did not have any other signs of violence on his body .

On DATE the ORG prosecutor 's office ordered that police officer GPE be removed from the applicant 's case on account of the latter 's complaint alleging ill - treatment . The police officer was prohibited even from accompanying the applicant to and from the detention centre . The removal was justified by the need to ensure the objectivity of the investigation into the applicant 's complaints .

On CARDINAL DATE the applicant 's lawyer requested the prosecutor of LOC to authorise the applicant to undergo , inter alia , neurological , ophthalmological , psychiatric and other medical examinations . He requested that the medical examinations be carried out by independent doctors in the presence of the applicant 's relatives . This request was refused .

On DATE , following complaints by the applicant 's lawyer , ORG organised action in support of the applicant by publishing on their NORP internet site a description of the applicant 's case and an appeal to people from all over the world to write to ORG , ORG and ORG in their country asking them to take action , such as conducting a medical examination of the applicant and carrying out an effective investigation into his complaints of torture , and allowing the applicant to meet his lawyer in conditions of confidentiality .

Following ORG action , the GPE authorities received CARDINAL letters from different countries and the applicant 's case was widely reported in the mass media .

On DATE the applicant was released from detention . On DATE he sought medical assistance at the “ LOC ORG , a non - governmental organisation financed by ORG and a member of ORG of ORG ( ORG ) . He appears to have been subjected there to detailed medical tests and examinations by various medical specialists . In a document entitled “ Extract from the medical file ” ( “ Extras din PERSON ” ) , dated DATE , issued by ORG , it was stated , inter alia , that the applicant had suffered the consequences of cranial trauma , post - traumatic otitis and mixed deafness on the right side and hypoacusis ( slightly diminished auditory sensitivity , with hearing threshold levels above normal ) on the left side .

On DATE the applicant underwent a medical check - up at ORG and ORG . It appears that he was directed there by doctors from the “ ORG who had diagnosed cranial trauma . He was seen by a neurosurgeon , who confirmed that the applicant had suffered cranial trauma and concussion with permanent vegetative disorder and intracranial hypertension . Moreover , the doctor found that the applicant was experiencing loss of consciousness , post - traumatic otitis and sleep disorder . The medical report of ORG and ORG was not issued to the applicant until DATE .

On DATE the prosecutor PERSON from the ORG prosecutor 's office dismissed the applicant 's torture complaint . In his decision he stated , inter alia , that the CARDINAL policemen allegedly involved in acts of torture had been questioned and had denied all the accusations ; that according to the medical report dated DATE , the applicant did not have any signs of torture on his body ; and that in the office where he had allegedly been tortured no coat hanger had been found . As to his attempted suicide , the prosecutor considered that it had been simulated so as to avoid criminal responsibility .

On CARDINAL DATE the applicant appealed to ORG against the decision of CARDINAL DATE . He argued , inter alia , that the prosecutor had refused to allow him to undergo a complete medical examination , as requested by him on DATE , and that this was contrary to the authorities ' positive obligations under LAW . He also informed the court that immediately after his release from detention he had undergone a medical examination which established that he had been tortured during his detention .

On DATE ORG held a hearing in the case concerning the applicant 's complaint of torture . The applicant 's lawyer requested that the medical report of ORG and ORG dated DATE be included in the case file . Judge PERSON admitted the report in evidence . However , in a decision of DATE he dismissed the appeal as unfounded without giving an assessment of any of the above evidence . He simply repeated the reasons given by the prosecutor PERSON in his decision of CARDINAL DATE dismissing the complaint of torture .

On DATE , after the medical report from the “ LOC ORG had become available to him , the applicant wrote to the ORG prosecutor 's office asking it to re - examine his ill - treatment complaint in the light of the medical report . However , on DATE he was informed that there were no grounds for reopening the investigation .

In the meantime , on DATE , the applicant had lodged an application with ORG in which he complained under LAW that he had been tortured and that there had been no effective investigation into his allegations of torture .

On DATE the Prosecutor General of GPE , PERSON , wrote a letter to ORG , in which he stated , inter alia , the following :

“ Lately , ORG has been confronted with the phenomenon whereby some NORP lawyers involve international organisations specialising in the protection of human rights in the examination by the national authorities of criminal cases . These organisations are used as an instrument for serving personal interests and for avoiding the criminal responsibility of suspected persons .

Examples of such incidents are the case of PERSON , triggered by the lawyer PERSON , and the case of GPE , triggered by the lawyer PERSON . The international mediatisation of these cases prompted active action by the representatives of ORG with a view to safeguarding the rights of the above lawyers ' clients .

After having examined sufficiently thoroughly the complaints alleging torture and abuse on the part of the police ... ORG dismissed the complaints on the ground of lack of proof that offences had been committed . ...

... In such circumstances the irresponsible attitude and behaviour of the lawyers GPE and PERSON give rise to concern . They knew that no acts of torture had been committed against their clients . However , they complained to international organisations without first attempting to use the national mechanism for solving such problems . They presented the facts erroneously in order to win their cases ...

Such practices by lawyers will be investigated by ORG in order to determine whether they have committed the offence provided for in LAW , by making public on an international scale false information about alleged breaches of human rights which gravely prejudice the image of our country .

Accordingly , ORG is called upon to take account of the facts described above , to bring to the attention of lawyers the situation so created and to prevent as far as possible any prejudice to the authority of GPE . ”

The above letter generated a heated debate in the media . On DATE ORG issued an official statement in which it qualified the Prosecutor General 's letter as an attempt to intimidate lawyers . In an interview to the newspaper PERSON the President of ORG declared , inter alia , that this was an attempt to intimidate lawyers so that they would not complain to the ORG any more . At the same time ORG organised action in support of the lawyers mentioned in ORG letter and issued a statement in which it declared , inter alia , the following :

“ [ ORG ] is concerned that the letter to ORG is a deliberate attempt to intimidate GPE and PERSON , and to prevent lawyers in GPE from making public information about human rights violations . It is a violation of the right to freedom of expression , and if the lawyers were to be imprisoned for this offence ORG would consider them prisoners of conscience . ”

The relevant provisions of LAW read as follows :

“ LAW Abuse of official duties

Intentional use by a person ... of his or her official duties for personal gain or for other personal interests ... shall be punishable by a fine of ... or by imprisonment for DATE .

The same offence committed by a notary , auditor or lawyer shall be punishable by a fine of MDL CARDINAL , or by imprisonment for DATE ... ”


Giovanni Bonello;Kristaq Traja;Lech Garlicki;Nicolas Bratza

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant was arrested on suspicion of robbery . On DATE the ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody until DATE . It found that there were reasonable grounds – in particular , evidence from witnesses DATE for suspecting him of the offence charged . The court further noted that the applicant was liable to a statutory maximum sentence of DATE imprisonment . It also found that there was a risk that the applicant might tamper with evidence .

On DATE the ORG prolonged the applicant ’s detention until DATE . It considered that the reasons for keeping him in detention were still valid and the need to secure the proper conduct of the investigation justified holding him in custody . It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant . It also found that there was a risk that the applicant might tamper with evidence , given the nature of the charges against him and the fact that he had acted with other co - accused .

The applicant ’s detention was subsequently prolonged by ORG on unspecified dates . The courts’ decisions were based on Article CARDINAL § CARDINAL of LAW , which lists grounds for pre - trial detention , such as , the risk that an accused will abscond or go into hiding or a justified fear that an accused will attempt to induce witnesses or co - defendants to give false testimony or to obstruct the proper course of proceedings by any other unlawful means .

On DATE the ORG convicted the applicant of CARDINAL counts of robbery and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant appealed .

On DATE the ORG ( PERSON ) upheld the impugned judgment .

The applicant did not lodge a cassation appeal .

The applicant ’s letter to the ORG dated DATE bears a stamp marked “ censored ” ( cenzurowano ) , “ the prosecutor ” ( prokurator ) followed by an illegible signature . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape . According to the postmark the letter was posted on DATE .

The application form submitted by the applicant and dated DATE bears a stamp marked “ censored ” ( cenzurowano ) , “ the judge ” ( sędzia ) followed by an illegible signature . The envelope bears a stamp confirming that the applicant ’s letter was received for dispatch by the prison administration on DATE . However , according to the postmark the letter was not posted until DATE . It also appears that the envelope was cut open and subsequently resealed with adhesive tape .

The relevant domestic law concerning the censorship of ORG correspondence is set out in the ORG ’s judgment in the case of Michta v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE .