CASES OF HARKINS AND EDWARDS v. THE UNITED KINGDOM

Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (United States of America);No violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (United States of America)

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

On DATE , in GPE , GPE , PERSON was killed by a gunshot wound to the head in the course of a robbery .

The first applicant was subsequently arrested for the murder of Mr PERSON and , on DATE , was indicted for first degree murder and attempted robbery with a firearm . On DATE the prosecution filed a notice that they intended to seek the death penalty for the charge of first degree murder ; that notice was subsequently withdrawn . According to an affidavit filed in support of the GPE extradition request by Mr PERSON , Assistant ORG Attorney ( see paragraph CARDINAL below ) , the prosecution case is based upon the testimony of a co - accused , Mr PERSON , who has since confessed and become a witness for the prosecution . His evidence is that he and the first applicant arranged for Mr PERSON to purchase marijuana from the first applicant . A meeting was arranged for delivery and payment . Mr PERSON and the first applicant arrived at the meeting wearing masks . According to PERSON , the first applicant brandished a rifle and , when Mr PERSON refused to hand over the money , the first applicant shot him in the head . Mr PERSON and the first applicant fled the scene , washed blood from their car at a carwash and threw the rifle in a river . The prosecution further rely on ballistics evidence , and other witnesses whom they intend to call at trial to prove that the applicant planned the robbery and left his residence with a gun shortly before the robbery and killing .

The applicant maintains that initial police reports into Mr Hayes’ murder record PERSON as stating that he , the first applicant , hit Mr PERSON in the head with the gun and the gun went off . The police reports also directly refer to the killing as CARDINAL of “ felony murder ” . ( The GPE “ felony murder rule ” allows a defendant to be convicted of murder , even if there was no premeditation on his part , if he committed or was attempting to commit a serious felony offence ( including armed robbery ) at the time of the killing : see relevant GPE law at paragraph CARDINAL below . ) The applicant also maintains that the medical examiner ’s report on Mr Hayes’ injuries demonstrates that the injuries are consistent with the gun going off accidentally . However , the first applicant denies being present at the fatal incident : he alleges that he only lent his car to CARDINAL of those present , a Mr Randle , who went on to participate in the fatal robbery of PERSON .

After he was indicted , the applicant was released on bail and ordered to appear before the court on DATE .

On DATE , the first applicant was arrested in GPE following a fatal car accident , for which he was subsequently sentenced to DATE imprisonment . An extradition request was made by ORG on DATE . In an affidavit provided in support of the extradition request , Mr PERSON , Assistant ORG Attorney , confirmed that the notice of intention to seek the death penalty had been withdrawn and that the prosecution sought a life sentence .

On DATE the District Judge sitting at FAC concluded that the evidence established a prima facie case against the first applicant and ordered that he be committed to prison to await the decision of the Secretary of ORG as to his surrender to GPE .

In a Diplomatic Note issued on DATE ORG assured ORG that , based on an assurance ORG had received from the ORG Attorney of ORG , the death penalty would not be sought or imposed on the first applicant .

On DATE the Secretary of ORG refused the first applicant ’s representations and ordered his surrender . On the basis of the assurance from ORG , the Secretary of ORG concluded that the death penalty would not be imposed on the first applicant and that extradition would not otherwise violate the first applicant ’s rights under the Convention .

The applicant sought judicial review of the Secretary of ORG ’s decision by ORG . He argued inter alia that the assurance contained in the Diplomatic Note was inadequate because it had been issued by ORG whereas the prosecution would be conducted by ORG and only an assurance from the ORG Governor would suffice . He further argued that the trial court in GPE was enabled by the applicable criminal procedure to consider the imposition of the death penalty irrespective of whether or not it was sought by the prosecution .

A further affidavit was then submitted by the GPE Assistant ORG Attorney , Mr PERSON , who stated that , as a matter of long - standing practice , the trial court would not conduct a sentencing hearing to decide whether to impose the death penalty when the ORG Attorney did not seek the death penalty ; even if it were to do so , the ORG Attorney would not present any evidence in support of the death penalty , meaning that there would be no basis upon which the trial court could find there were sufficient aggravating circumstances to warrant the death penalty . Mr GPE therefore stated that the first applicant would not be subjected to the death penalty if he were convicted of first degree felony murder .

On the basis of this affidavit , and on the further basis that the Diplomatic Note was clear and binding as a matter of international law , ORG found there was no real risk of the death penalty and accordingly refused the application for judicial review . On DATE , CARDINAL DATE , it also refused the first applicant ’s application for certification of a point of law and permission to appeal to ORG .

On DATE , the applicant ’s solicitor informed the Secretary of ORG that an application had been made to ORG for reconsideration of its decision . He relied on the affidavit sworn by an NORP attorney , which stated that the trial court could in fact impose the death penalty if sufficient aggravating features were found to exist in the first applicant ’s case . By way of an order dated DATE , ORG Judge PERSON , the trial judge in the first applicant ’s case , stated that no death penalty sentencing proceedings would be held and therefore the maximum sentence that could be imposed would be life in prison . It does not appear that the first applicant made an application to ORG or that any such application was determined by that court .

On DATE the first applicant lodged an application with this ORG and , on DATE , the President of the ORG to which the application was allocated decided to apply Rule CARDINAL of ORG and to indicate to the Government of GPE that the applicant should not be extradited until further notice . It was also decided , under LAW ) , that notice of the application should be given to ORG of GPE and that the Government should be invited to submit written observations on the admissibility and merits of the case , including on whether any life sentence imposed on the first applicant would be compatible with LAW .

After the Government ’s observations had been received , the first applicant indicated that he had submitted fresh representations to the Secretary of ORG on the issue of the imposition of a life sentence . Those representations were made on DATE . Further submissions were made in the light of the ORG of Lords’ judgment in GPE v. the Secretary of ORG for ORG ( see paragraphs DATE CARDINAL below ) on DATE , DATE and DATE . Proceedings before this Court were therefore adjourned while those representations were considered by the Secretary of ORG .

NORP The Secretary of ORG refused the first applicant ’s representations on DATE , relying in particular on this ORG ’s judgment in PERSON v. GPE [ ORG ] , no . CARDINAL , DATE and the GPE judgment , cited above . He noted that , on the basis of information provided by the first applicant and the United States’ authorities , DATE the Governor had commuted the sentences of CARDINAL defendants who had been convicted of first - degree murder . Although he was not constrained as to the factors he could take into account in granting clemency , the Governor took in account inter alia the nature of the offence and any history of mental instability . Moreover , the sentence of life imprisonment without parole had only been introduced in DATE . It was not unrealistic to assume that defendants who had received that sentence would be expected to serve CARDINAL to fifteen years before being considered for clemency and thus it was immaterial that the Governor had not granted clemency to anyone who had been given that sentence .

NORP The Secretary of ORG also had regard to the first applicant ’s representations that GPE law allowed for the imposition of a mandatory sentence of life imprisonment without parole either for : ( i ) premeditated murder ; or ( ii ) if the defendant committed or was attempting to commit a serious felony offence ( including armed robbery ) at the time the person was killed ( the “ felony murder rule ” ) . Having regard to the circumstances of the crime of which the first applicant had been accused , the Secretary of ORG was not satisfied that a sentence of life imprisonment without parole , even as a result of the felony murder rule , was grossly disproportionate . This conclusion was not altered by the applicant ’s young age at the time of the offence , or the fact that he had submitted a psychiatric report , which showed he suffered from a severe personality disorder , with features of narcissistic and borderline personality disorders . Both these factors amounted to only limited mitigation . The Secretary of ORG was also satisfied that no separate issues arose under LAW in respect of life imprisonment without parole or the felony murder rule .

The first applicant sought judicial review of the Secretary of ORG ’s decision , arguing that mandatory life imprisonment without parole as a consequence of the felony murder rule would be in violation of LAW . ORG dismissed that application on DATE ( [ DATE ] EWHC CARDINAL ( Admin ) ) .

Lord Justice PERSON ( with whom Mr Justice PERSON agreed ) considered it to be “ wholly unreal ” that the first applicant could be tried in GPE and GPE . He also applied the approach taken by ORG in GPE and , on the evidence before the court , concluded that the only mechanism for release of the first applicant was by clemency or conditional release on compassionate medical grounds . However , the clemency procedure had been from time to time exercised , despite the first applicant ’s submission that it was subject to political pressure . The fact that no one convicted of first degree murder and sentenced to life imprisonment without parole had been granted clemency did not mean that there was no prospect of clemency being granted in the future to someone thus sentenced . Lord Justice PERSON accepted the Secretary of ORG ’s submission that , given that the sentence had only existed since DATE , it was unsurprising that no one sentenced to life imprisonment without parole had yet been granted clemency .

In respect of the felony murder rule , Lord Justice PERSON found that the evidence showed that it was likely that , at trial , the prosecution would seek to argue that the first applicant ’s shooting of Mr PERSON was a premeditated killing . There was , however , also a realistic possibility that the first applicant could be convicted by way of the felony murder rule and the prosecution was not bound to put the matter higher . Lord Justice PERSON observed , however , that :

“ [ T]he only ‘ accident’ involved is the accidental discharge of the loaded and cocked firearm . The killing would thus not have been premeditated but would have resulted from a serious and most dangerous assault , committed in the course of a robbery . Insofar as it is permissible to have regard to LANGUAGE PERSON ( as furnishing no more than a frame of reference ) , the most likely outcome , on that factual assumption , would be a conviction for manslaughter . Moreover , it would involve a very grave case of manslaughter indeed ... On the material before us , it is fanciful to contemplate a complete acquittal on the basis of ( true ) ‘ accident’ . ”

He concluded :

“ CARDINAL . First and importantly , it is necessary to clarify the ambit of the argument before this ORG . It is not contended on behalf of Mr. PERSON that the GPE felony murder rule is unconstitutional on the ground of arbitrariness or its potential application to a wide range of circumstances and in cases of ( relatively ) low culpability . [ Counsel ’s ] submission is instead confined to the contention that , on the facts of this case , the possible conviction of Mr. PERSON by way of the GPE felony murder [ rule ] means that his extradition would be incompatible with Art . CARDINAL . It follows that some of [ counsel ’s ] more graphic examples of the scope of application of the GPE felony murder rule ( e.g. , to a man sentenced to ORG [ life imprisonment without parole ] after lending his car to friends to commit a burglary , in the course of which a woman was killed ) , can be put to CARDINAL side . ORG is concerned with the facts of this case and no question arises of accessory liability , remote from the killing ; Mr. PERSON alleged role was plainly that of principal .

Secondly , the scope of the debate in this case has now been clarified . Realistically , for reasons already canvassed , this case is concerned with the possibility that Mr. PERSON will be convicted by way of the GPE felony murder rule for conduct ( at best for Mr. PERSON ) akin to manslaughter in the course of an armed robbery in this jurisdiction . It is fanciful to contemplate Mr. PERSON being at risk of conviction for what was an ‘ accident’ truly so called ; on any realistic view , there was no such ‘ accident’ here .

Thirdly , it is of course a matter for the sentencing policy of the ORG of GPE whether mandatory ORG is an appropriate sentence for the crime committed in this case , if Mr. PERSON is convicted . Bearing in mind that this ORG is not engaged in a comparative sentencing exercise , it is helpful to keep the following matters in mind when considering whether , seen through ‘ the prism of an application for LOC ( GPE , supra , at [ CARDINAL ] ) the potential GPE sentence should be seen as clearly disproportionate :

i ) As this ORG is only concerned with the facts of this case , the mandatory nature of the sentence does not carry the significance which it might , had the Court been engaged in some wider review of the law in question .

ii ) The ( alleged ) facts of the present case are shocking indeed . However analysed , should Mr. PERSON be convicted , he will have committed a grave crime ; even on the most favourable ( realistic ) view of the facts for Mr. PERSON , his culpability will be high . On the ( alleged ) facts of this case , a severe sentence would be a punishment fitting the crime .

iii ) To the extent that it matters , it would be wrong to underestimate the likely sentence Mr. PERSON would face in this country , even were he convicted “ only ” of manslaughter rather than murder . It is probable that he would receive an indeterminate sentence of imprisonment for public protection ( “ IPP ” ) , although the possibility of a life sentence can not be excluded . In any event , so far as concerned the notional determinate element of an ORG or a determinate sentence if it stood alone , on the conduct alleged in the present case , Mr. PERSON could expect a significant sentence well into double figures .

Fourthly , against this background , I am unable to conclude that the imposition in the GPE of a sentence of ORG on Mr. PERSON would be clearly disproportionate , although it would not be a sentence passed here . Given Mr. PERSON ( alleged ) conduct , it would not be a sentence which ‘ shocked the conscience’ . On any view , that the killing occurred in the course of an armed robbery is a most serious aggravating factor , made , if anything , yet more grave by the ( alleged ) fact that the loaded rifle had been cocked by Mr. PERSON before getting out of his car .

Fifthly , although I have carefully considered Mr. Harkins’ age at the time of the incident ( he was DATE ) , I am not dissuaded by that factor from the conclusion to which I am otherwise minded to come .

Sixthly , on the evidence and as already discussed , the sentence of ORG is not irreducible . The significance of this feature for the Art . CARDINAL jurisprudence was highlighted above . However , even if , contrary to my conclusion , the sentence was irreducible , on the ( alleged ) facts of this case , I would not regard the imposition of an irreducible sentence of ORG as clearly disproportionate and thus in violation of Art . DATE whatever questions might arise at some point in the course of Mr. Harkins’ detention .

Pulling the threads together , the case of Mr. PERSON does involve a young ( alleged ) offender , facing a mandatory sentence of ORG . But , as the ORG is solely concerned with the facts of this case , the mandatory nature of the sentence does not have the wider significance which might otherwise attach to it . Should he be convicted , Mr. PERSON will , on any ( realistic ) view , have committed a grave crime with high culpability . The sentence of ORG is manifestly severe and different from the sentence he would face in this jurisdiction DATE but it can not be seen as clearly disproportionate . It is , moreover , not irreducible , though even if it was , the imposition of the sentence per se would not be incompatible with Art . CARDINAL . ”

The first applicant then applied to ORG for a certificate of points of law of general public importance and for leave to appeal to ORG . On DATE , ORG refused both applications .

On DATE , a grand jury in GPE , GPE returned an indictment against the second applicant on CARDINAL counts , relating to the death of a Mr PERSON , the non - fatal shooting of a second man , Mr PERSON , and assault of a third man , Mr PERSON . The first count of the indictment is murder in the first degree of Mr PERSON . The second count is attempted murder in the second degree of Mr PERSON . The third and fourth counts are alternatives to counts CARDINAL and CARDINAL , charging the applicant with murder in the second degree of PERSON and attempted murder in the second degree of Mr PERSON . Counts CARDINAL to CARDINAL charge the applicant with assault in the first degree upon the CARDINAL men . Counts eight to CARDINAL charge him with assault in the second degree upon the men and count CARDINAL charges him with using a handgun in the commission of a crime of violence .

The allegations giving rise to these counts are that , on TIME DATE , the second applicant , PERSON , PERSON and PERSON PERSON were at the apartment of a friend . The second applicant began to argue with PERSON and PERSON who had made fun of his small stature and feminine appearance . The second applicant left the apartment and later returned with CARDINAL other men . Mr PERSON told the police that , while he was restrained by CARDINAL of the other men in the kitchen , the second applicant produced a handgun and went into the living room . Shots were then fired which left Mr PERSON dead and Mr PERSON with a non - fatal gunshot wound to the head .

On DATE , the second applicant was arrested in the GPE pursuant to a provisional warrant of arrest issued CARDINAL of LAW DATE . In an affidavit of DATE , Mr PERSON , an attorney of ORG Attorney for GPE , GPE , outlined the facts of the case and the charges against the applicant . On count one , he stated :

“ Although a defendant convicted of first degree murder may , under certain circumstances , be subject to the death penalty , none of those circumstances exist in this case . Consequently , the maximum penalty is life in prison . ”

On DATE , ORG in GPE issued Diplomatic Note No . CARDINAL , which requested the second applicant ’s extradition . The note specified that count one , first - degree murder , carried a maximum penalty of life imprisonment and that count CARDINAL , attempted first - degree murder , also carried a maximum penalty of life imprisonment . Counts CARDINAL and CARDINAL each carried maximum penalties of DATE imprisonment . Counts CARDINAL to CARDINAL carried maximum penalties of DATE imprisonment ; counts CARDINAL to CARDINAL , CARDINAL years’ imprisonment ; and count TIME , twenty years’ imprisonment .

On DATE , the Secretary of ORG certified that the extradition request was valid . In a decision given on DATE , the District Judge , sitting at GPE ORG , ruled that the extradition could proceed . He held that , inter alia , the second applicant ’s extradition would not be incompatible with his rights under LAW since LAW stated that it was for ORG to seek the death penalty and the extradition request clearly indicated that it would not do so . The District Judge accordingly sent the case to the Secretary of ORG for his decision as to whether the applicant should be extradited .

On DATE , ORG issued a further Diplomatic Note in respect of the second applicant , which assured ORG that the second applicant was not subject to the death penalty , the death penalty would not be sought or carried out against him upon his extradition to GPE , and that the Government of GPE has been assured of the same by the Deputy State Attorney of GPE .

On DATE , the Secretary of ORG ordered the second applicant ’s extradition . The second applicant appealed to ORG , inter alia , on the ground that a sentence of life imprisonment without the possibility of parole amounted to inhuman or degrading treatment in violation of LAW .

On DATE , in a second affidavit in support of the extradition , Mr PERSON provided further details of the sentence for first - degree murder under GPE law . He stated :

“ CARDINAL . This particular case qualifies for a maximum penalty of life imprisonment under PERSON . Criminal Law § CARDINAL - CARDINAL(b ) . The Death Penalty does not apply .

The ORG has the option of filing a notice to the Defendant that it will seek a sentence of life without the possibility of parole , which entitles the sentencing court to consider a sentence of life without parole , but does not require that the sentencing court impose such a sentence .

Given the heinous nature of the instant case , which the ORG characterizes as ORG ] ‘ execution style’ homicide , which claimed CARDINAL life , and seriously and permanently injured a second victim , the ORG anticipates that it will seek a sentence of life without the possibility of parole under GPE PERSON . Criminal Law § CARDINAL - CARDINAL and § DATE ) .

In the instant case , in the event that the ORG did in fact file its notice of intention to seek life without parole , the trial judge would be the sole sentencing authority , and would have the discretion to seek a sentence of :

- life without the possibility of parole ;

- life with the possibility of parole ;

- life with the possibility of parole , with all but a certain number of DATE suspended , followed by DATE of probation .

In the undersigned ’s experience , there is no way to accurately predict what sentence a defendant will face if convicted of first degree murder . ”

Mr PERSON added that a person convicted of first - degree murder was entitled to a pre - sentencing investigation . This involved a report from ORG on the defendant and included information received from the victims . There was also the right to apply for review of the sentencing by the sentencing judge and thereafter review by CARDINAL other judges of the circuit . Mr PERSON also stated he was unprepared to offer an opinion on any mitigating factors which might affect the second applicant ’s sentence if convicted of first - degree murder . He continued :

“ In general terms , ORG [ the county where the second applicant would be tried ] has considered as mitigating factors several known attributes possessed by Mr PERSON : youth and lack of serious criminal history . The single biggest mitigating factor in regard to whether a Defendant receives life without parole would be an acceptance of responsibility upon the part of a given defendant . ”

Before ORG , the second applicant accepted that his ground of appeal based on LAW was precluded by the ORG of Lords’ ruling in NORP v. PERSON ( see paragraph CARDINAL below ) and conceded that it had to be dismissed . On DATE , the High Court therefore dismissed the second applicant ’s appeal on this ground , allowing only his appeal that count CARDINAL of the indictment was not an extraditable offence . It also refused to certify a point of law of general public importance which ought to be considered by ORG .

On DATE the second applicant lodged an application with this ORG and requested an interim measure to prevent his extradition . On DATE the President of the ORG to which this application was allocated decided to apply Rule CARDINAL of ORG and indicate to the Government of GPE that the applicant should not be extradited until further notice .

For each applicant , the applicable bilateral treaty on extradition was the DATE GPE – USA Extradition Treaty ( now superseded by a DATE treaty ) . LAW DATE treaty provided that extradition could be refused unless the requesting ORG gave assurances satisfactory to the requested ORG that the death penalty would not be carried out .

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 ] DATE ) ) , 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 .

GPE ’s appeal from that judgment was heard by ORG and dismissed on DATE . Central to the appeal was paragraph CARDINAL of this ORG ’s judgment in GPE v. GPE , DATE , LAW , Series A no . CARDINAL , where the ORG stated that considerations in favour of extradition :

“ .. must also be included among the factors to be taken into account in the interpretation and application of the notions of inhuman and degrading treatment or punishment in extradition cases . ”

A majority of their Lordships , Lord PERSON , ORG and Lord PERSON , found that , on the basis of this paragraph , in the extradition context , a distinction had to be drawn between torture and lesser forms of ill - treatment . When there was a real risk of torture , the prohibition on extradition was absolute and left no room for a balancing exercise . However , insofar as LAW applied to inhuman and degrading treatment and not to torture , it was applicable only in a relativist form to extradition cases .

Lord PERSON , giving the lead speech , considered the ORG ’s judgment in the case of PERSON v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions DATE , in which the ORG stated that :

“ It should not be inferred from the ORG ’s remarks [ at paragraph CARDINAL of GPE ] that there is any room for balancing the risk of ill - treatment against the reasons for expulsion in determining whether a ORG ’s responsibility under LAW ) is engaged . ”

Lord PERSON stated :

“ In the context of PERSON , I read this remark as affirming that there can be no room for a balancing of risk against reasons for expulsion when it comes to subjecting someone to the risk of torture . I do not however think that the ORG was intending to depart from the relativist approach to what counted as inhuman and degrading treatment which was laid down in GPE and which is paralleled in the cases on other articles of the LAW in a foreign context . If such a radical departure from precedent had been intended , I am sure that the ORG would have said so . ”

For Lord PERSON , paragraph CARDINAL of PERSON made clear that :

“ ... the desirability of extradition is a factor to be taken into account in deciding whether the punishment likely to be imposed in the receiving state attains the ‘ minimum level of severity’ which would make it inhuman and degrading . Punishment which counts as inhuman and degrading in the domestic context will not necessarily be so regarded when the extradition factor has been taken into account . ”

He went on to state :

“ A relativist approach to the scope of article CARDINAL seems to me essential if extradition is to continue to function . For example , ORG has decided in PERSON v Scottish Ministers ( DATE ) GPE CARDINAL that in GPE the practice of ‘ slopping out’ ( requiring a prisoner to use a chamber pot in his cell and empty it in TIME ) may cause an infringement of article CARDINAL . Whether , even in a domestic context , this attains the necessary level of severity is a point on which I would wish to reserve my opinion . If , however , it were applied in the context of extradition , it would prevent anyone being extradited to many countries , poorer than GPE , where people who are not in prison often have to make do without flush lavatories . ”

A minority of their Lordships , Lord PERSON and Lord PERSON , disagreed with these conclusions . They considered that the extradition context was irrelevant to the determination of whether a whole life sentence amounted to inhuman and degrading treatment . They found no basis in the text of LAW for such a distinction . Lord PERSON also considered that the ORG , in PERSON and again in PERSON v. GPE [ ORG ] , no . CARDINAL , ORG DATE ... , had departed from the previous , relativist approach to inhuman and degrading treatment that it had taken in GPE . He stated :

“ There is , I conclude , no room in the GPE jurisprudence for a concept such as the risk of a flagrant violation of article CARDINAL ’s absolute prohibition against inhuman or degrading treatment or punishment ( akin to that of the risk of a ‘ flagrant denial of justice’ ) . By the same token that no one can be expelled if he would then face the risk of torture , so too no one can be expelled if he would then face the risk of treatment or punishment which is properly to be characterised as inhuman or degrading . That , of course , is not to say that , assuming for example ‘ slopping out’ is degrading treatment in GPE , so too it must necessarily be regarded in all countries ( see para CARDINAL of Lord PERSON ’s opinion ) ... ORG has repeatedly said that the LAW does not ‘ purport to be a means of requiring the contracting states to impose LAW standards on other states’ ( Soering , para CARDINAL ) and article CARDINAL does not bar removal to non - Convention states ( whether by way of extradition or simply for the purposes of immigration control ) merely because they choose to impose higher levels or harsher measures of criminal punishment .

Nor is it to say that a risk of article CARDINAL ill - treatment , the necessary pre - condition of an article CARDINAL bar upon extradition , will readily be established . On the contrary , as ORG reaffirmed in PERSON at para CARDINAL :

‘ [ T]he ORG has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill - treatment . . . in the event of a person being removed from the territory of the respondent ORG by extradition , expulsion or any other measure pursuing that aim . Although assessment of that risk is to some degree speculative , the ORG has always been very cautious , examining carefully the material placed before it in the light of the requisite standard of proof . . . before . . . finding that the enforcement of removal from the territory would be contrary to LAW . As a result , since adopting the PERSON judgment it has only rarely reached such a conclusion.’ ”

Therefore , for Lord PERSON , if a mandatory life sentence violated LAW in a domestic case , the risk of such a sentence would preclude extradition to another country .

NORP However , despite these different views , none of ORG found that the sentence likely to be imposed on Mr GPE would be irreducible ; having regard to the commutation powers of the Governor of GPE , it would be just as reducible as the sentence at issue in GPE v. GPE [ ORG ] , no . CARDINAL , ECHR DATE .... 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 . ”

Lord PERSON added that this test had not been met in GPE ’s case , particularly when the facts of the murders for which he was accused , if committed in GPE , could have justified a whole life order . However , Lord PERSON considered that , in a more compelling case , such as the mercy killing of a terminally ill relative , this ORG “ might well judge the risk of ill - treatment to be sufficiently real , clear and imminent to conclude that extradition must indeed be barred on article CARDINAL grounds ” .

Finally , Lord PERSON , Lord PERSON , ORG and Lord PERSON all doubted Lord Justice Laws’ view 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 ) .

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 .

Article CARDINAL of the ORG where relevant provides that “ no one shall be subjected to torture or to cruel , inhuman or degrading treatment or punishment . ” ORG most recent general comment on DATE ( No . DATE , of DATE ) states the ORG ’s view that : “ States parties must not expose individuals to the danger of torture or cruel , inhuman or degrading treatment or punishment upon return to another country by way of their extradition , expulsion or refoulement . ” ( see also PERSON v. GPE , ORG , DATE ; A.J.R. v. GPE , ORG , CARDINAL DATE ) .

Article CARDINAL § QUANTITY of the DATE United Nations Convention against Torture and Other Cruel , Inhuman or Degrading Treatment or Punishment ( “ ORG ” ) provides :

“ ORG shall expel , return ( " refouler " ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture . ”

Article CARDINAL § CARDINAL provides :

“ The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel , inhuman or degrading treatment or punishment or which relates to extradition or expulsion . ”

The above guidelines ( adopted by ORG on DATE ) contain the following provisions on refoulement and extradition :

“ XII . Asylum , return ( ‘ refoulement’ ) and expulsion

It is the duty of a ORG that has received a request for asylum to ensure that the possible return ( “ refoulement ” ) of the applicant to his / her country of origin or to another country will not expose him / her to the death penalty , to torture or to inhuman or degrading treatment or punishment . The same applies to expulsion .

XIII . Extradition

Extradition is an essential procedure for effective international co - operation in the fight against terrorism .

Extradition may not be granted when there is serious reason to believe that :

( i ) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment ... ”

Article CARDINAL § CARDINAL of GPE ORG provides :

“ No one may be removed , expelled or extradited to a ORG where there is a serious risk that he or she would be subjected to the death penalty , torture or other inhuman or degrading treatment or punishment . ”

In a letter dated DATE , ORG set out the law and practice of GPE as it applied to the first applicant . He was facing a first - degree murder charge which could be proved by establishing ( i ) a premeditated design to effect the death of the person killed ; or ( ii ) that he committed , or was attempting to commit , a serious felony offence , including armed robbery , at the time the person was killed . The punishment upon conviction was the same : life imprisonment .

DATE , section CARDINAL(a ) of LAW ( replicated in GPE section CARDINAL.CARDINAL(CARDINAL ) gave the Governor , with the approval of CARDINAL members of his cabinet ( “ ORG ” ) , the power to grant pardons and commute punishments . There was no legal limitation on what the Governor could consider in granting pardon or commuting a sentence . However , in every case he would consider inter alia the nature of the offence and any history of mental instability , drug abuse , or alcohol abuse . The letter confirmed that , from DATE , the Governor had commuted CARDINAL sentences , of which CARDINAL were for first - degree murder . If a request was denied , another request could be made in DATE or , alternatively , the defendant could apply for waiver of the DATE period . A defendant could also apply for commutation if he or she became ill and could file a motion to have his sentence set aside on the ground that it amounted to cruel and unusual punishment . The letter accepted that , given the current status of the law , such a motion was unlikely to succeed .

The first applicant provided the following provisions of GPE law on sentencing :

“ CARDINAL.CARDINAL(CARDINAL ) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. CARDINAL results in findings by the court that such person shall be punished by death , otherwise such person shall be punished by life imprisonment and shall be ineligible for parole .

CARDINAL.CARDINAL(CARDINAL ) Separate proceedings on issue of penalty . — Upon conviction or adjudication of guilt of a defendant of a capital felony , the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. CARDINAL .

He also provided an affidavit sworn by a GPE criminal defence attorney ( and former Assistant State Attorney ) , Mr PERSON . Mr ORG disagreed with the view of the current Assistant State Attorney Mr GPE that , if the prosecution did not present evidence in support of the death penalty , there was no basis upon which the trial court could find there were sufficient aggravating circumstances to warrant the death penalty ( see Mr GPE ’s statement summarised paragraph CARDINAL above ) . In Mr GPE ’s view , in the penalty phase of a trial there was no requirement that new evidence be present ; the jury could be asked simply to rely on the evidence heard during the guilt phase of proceedings . There was no reason why a trial court could not convene a penalty phase and impose the death sentence , even if the prosecution did not seek it . The trial judge was not limited by any recommendation of the prosecution .

The first applicant also submitted an affidavit sworn by Professor PERSON , of ORG . Her view was that the assurances provided by ORG and the GPE authorities made it unlikely that the first applicant faced a significant risk of being sentenced to death but some risk remained as the assurances were not binding in GPE law . It was more likely that he would face a mandatory sentence of life imprisonment without the possibility of parole and executive clemency was the only avenue by which he could seek reduction in his sentence . The procedure for seeking such a reduction was subject to minimal procedural protections . GPE had never granted clemency to a defendant sentenced to life imprisonment without parole and rarely commuted sentences of those accused of first degree murder ; after DATE , no one convicted of first degree murder had been granted a commutation . Although the granting of clemency required the approval of CARDINAL cabinet members , it could be denied unilaterally by the Governor at any time . The Governor and cabinet were elected officials and would never risk political unpopularity by granting a commutation unless there were clear evidence of innocence . The first applicant ’s chances of receiving clemency were remote and it was virtually certain that he would spend the rest of his life in prison .

Further to the second affidavit of Mr PERSON set out at paragraph CARDINAL above , section QUANTITY of LAW provides that where the ORG has given notice of its intention to seek a sentence of life imprisonment without the possibility of parole , the court shall conduct a sentencing hearing as soon as practicable after the defendant is found guilty of murder in the first degree to determine whether he shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life . By section CARDINAL - CARDINAL(b ) , a sentence of imprisonment for life without the possibility of parole means “ imprisonment for the natural life of an inmate under the custody of a correctional facility ” . A person who receives such a sentence is not eligible for parole consideration and may not be granted parole at any time during the term of sentence ( GPE Code of Correctional Services Article CARDINAL - CARDINAL(d)(CARDINAL)(i ) ) . The courts of GPE have no role in determining whether such prisoners should be released on parole ; that power is vested in the Governor of ORG CARDINAL - CARDINAL(d)(CARDINAL)(ii ) and CARDINAL - CARDINAL ) . He may pardon any individual convicted of a crime subject to any conditions he requires or remit any part of a sentence of imprisonment without the remission operating as a full pardon . An inmate who has been sentenced to life imprisonment ( as opposed to a sentence of life imprisonment without the possibility of parole ) is not eligible to be considered for parole until he has served CARDINAL years’ imprisonment . If eligible , he may only be paroled with the approval of the Governor PERSON ( CARDINAL - CARDINAL(CARDINAL ) and ( CARDINAL ) ) .

On DATE , ORG , having contacted the prosecutor in GPE , provided the following information to ORG :

“ The prosecutor intends to seek a trial on all counts of the indictment pending against PERSON if he is surrendered on all counts .

PERSON is convicted of CARDINAL or more offenses , the prosecutor would , in all likelihood , ask the court to impose – and the court would , in all likelihood , impose – consecutive sentences .

If PERSON is convicted of an offense , it is unlikely that the court would place much significance on his age . It is likely , however , that the court would place some significance on the fact that , given his age , he has a relatively minor criminal record .

If the court were to sentence PERSON to life imprisonment without parole , the Governor of GPE could commute the sentence or grant PERSON a full pardon . ”

In a letter of DATE to the second applicant ’s representatives , ORG of GPE provided the following information on the sentence of life imprisonment without the possibility of parole . The sentence is available for a number of non - homicide offences , including rape , child sex offences , kidnapping and , since DATE , for a fourth conviction of a crime of violence ( “ the repeat offender provision ” ) . It has been available for homicide since DATE . CARDINAL offenders from DATE onwards have been sentenced to life imprisonment without the possibility of parole . A review of records dating back to DATE indicated that there had been no releases into the community by a Governor ’s commutation of a sentence of life imprisonment without the possibility of parole . In DATE , there was CARDINAL commutation of the sentence to CARDINAL of life imprisonment . The second applicant maintains that , in that particular case , the person had been sentenced to life imprisonment without the possibility of parole under the repeat offender provision . He had applied unsuccessfully for parole after DATE imprisonment .

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 , where the court considers all the , 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 .

NORP 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 .

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 ) 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 ... ”

In his comparative study entitled “ Outlawing Irreducible Life Sentences : LOC on the LOC ? ” , CARDINAL : CARDINAL Federal Sentencing Reporter PERSON DATE , No CARDINAL ( DATE ) , Professor PERSON concluded that 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 .

PERSON and NORP v. PERSON [ DATE ] CARDINAL PERSON , ORG considered the compatibility of a mandatory life sentence as imposed in GPE and GPE with ORG CARDINAL and CARDINAL of the Convention . It found that , in its operation , a mandatory life sentence was not incompatible with either Article .

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 NORP at § 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 . ”

DATE . 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 ) .

Under the present statutory framework in GPE and GPE , LAW of LAW DATE , a trial judge can impose a whole life term or order on a defendant convicted of murder . Such a defendant is not eligible for parole and can only be released by the Secretary of ORG . In R v. PERSON [ DATE ] CARDINAL WLR CARDINAL ORG considered that such whole life terms were compatible with LAW .

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 stated :

“ 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 GPE 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 . ”

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 .

As stated at paragraph CARDINAL above , section CARDINAL of the NORP Charter protects against cruel or unusual treatment or punishment . ORG has found that a grossly disproportionate sentence will amount to cruel and unusual treatment or punishment ( see , inter alia , R v. ORG ) [ 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 the test for determining this issue was “ very properly stringent and demanding ” .

NORP 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 .

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 Justice Laws in GPE and Lord GPE in PERSON ( at DATE 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 GPE DATE also protects against disproportionately severe treatment or punishment .


The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a law firm in GPE . ORG PERSON ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE the applicant who , at that time , was the Vice - Chancellor of GPE , brought proceedings under LAW ( Mediengesetz ) against ORG , a limited liability company which is the owner of the DATE “ Format ” , since it had published an article accusing her of corruption . The applicant was represented by counsel in these and the subsequent proceedings .

By judgment of CARDINAL DATE ORG ( PERSON für PERSON ) found that the accusations voiced against the applicant amounted to defamation and ordered PERSON to withdraw the issue of “ Format ” , to publish the judgment and to pay compensation to the applicant . That judgment was upheld by ORG ( Oberlandesgericht ) on DATE .

On DATE the applicant requested ORG to impose a fine on ORG under LAW of LAW , arguing that it had not duly published the judgment of DATE . In particular , she claimed that , although the judgment had been published in “ Format ” on DATE , the heading had been incorrect and the publication was smaller and less visible than the incriminated article had been . Subsequently , the applicant filed further identical requests each time a new issue of “ Format ” was published without rectifying these shortcomings .

By decision of DATE ORG dismissed the applicant ’s requests , finding that the change of heading was irrelevant and that the publication of the judgment was equivalent to the impugned publication in terms of visibility . Upon the applicant ’s appeal ORG quashed the decision on DATE . It considered that the change of heading was indeed misleading and that the judgment had therefore not been duly published as required by LAW . It ordered Verlagsgruppe News to pay the applicant MONEY ( ORG ) .

On DATE GPE ORG granted the applicant ’s requests made after its initial decision of DATE . It ordered PERSON to pay EUR CARDINAL,CARDINAL to the applicant . PERSON appealed against this decision .

On DATE ORG partly granted the appeal , dismissing those of the applicant ’s requests which had been made after the decision of DATE but before the service of the appeal judgment of CARDINAL DATE . Consequently , it reduced the fine to be paid to the applicant .

Throughout the proceedings under LAW of LAW , the courts took their decisions sitting in camera . The applicant did not request a hearing nor did she complain about the lack of a hearing in her appeals .

In cases in which publication of a judgment has been ordered but has not been duly and/or timely complied with , LAW of LAW provides that the court shall , upon the claimant ’s request and after having heard the media owner , impose a fine on the latter which is payable to the claimant .

LAW does not provide for the holding of hearings in proceedings concerning the imposition of fines . The courts’ practise is to take decisions under LAW of LAW in camera .

In the light of the ORG ’s PERSON v. GPE judgment of DATE ( Reports of Judgments and Decisions DATE ) ORG found in a judgment of DATE ( CARDINAL ) that the relevant provision , namely section QUANTITY of LAW , which required the courts to hear the claimant but was silent as regards the holding of a public hearing , had to be interpreted in conformity with the requirements of LAW . The courts were therefore required to hold a public hearing . In a judgment of DATE ( G CARDINAL ) ORG confirmed that such an interpretation of section QUANTITY of LAW was in conformity with the constitution .


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr Oberschlick , a journalist living in GPE , was at the material time editor of the periodical Forum .

ORG On DATE on the occasion of a " peace celebration " ( ORG ) at the foot of the PERSON , PERSON , leader of ORG ( ORG ) and Governor ( PERSON ) of the Land of Carinthia , gave a speech glorifying the role of the " generation of soldiers " who had taken part in the Second World War . In it he said that all soldiers , including those in the NORP army , had fought for peace and freedom and that people should therefore not differentiate between " good " and " bad " soldiers of that generation but should rather be grateful to all of them for having founded and built DATE ’s affluent , democratic society . Mr PERSON then criticised an NORP writer who had , in his view , disparaged all those killed in the Second World War , and continued as follows :

" Ladies and gentlemen , freedom of opinion is taken for granted in a democracy , but it reaches its limits where people lay claim to that spiritual freedom they would never have got if others had not risked their lives for them so that they may now live in democracy and freedom . "

ORG This speech was reproduced in full in Forum and commented on by the applicant and the aforementioned NORP writer . Mr PERSON ’s passage , entitled " P.S. : ‘ GPE statt ‘ Nazi’ " ( " P.S. : ` Idiot’ instead of ` Nazi’ " ) , read as follows :

" I will say of PERSON , firstly , that he is not a NORP and , secondly , that he is , however , an idiot . That I justify as follows : [ L. ] [ ... ] wholly convinced me that being called a NORP is an advantage to PERSON . That is why I ask my friends to forgive my abstaining from using that description for that very good reason .

As [ PERSON ] denies those of us who in his eyes did not have the legitimising good fortune [ legitimierende GPE ] to have risked our lives in the uniform of honour [ Ehrenkleid ] of ORG for the NORP freedom to wage wars of conquest [ ORG ] and impose the final solution , [ and as he denies us ] the right ‘ to lay claim to a purely " spiritual " freedom of GPE , let alone a " political freedom " , and he himself has never had the good fortune to serve in the uniform of honour of the ORG or the NORP army [ Wehrmacht ] , thus excluding himself along with the vast majority of NORP from any exercise of freedom , he is , in my eyes , an idiot . "

ORG On DATE Mr PERSON brought an action for defamation ( üble GPE ) and insult ( PERSON ) against the applicant in ORG ( PERSON für PERSON - " the Regional Court " ) . He also applied for an order for the immediate seizure of the relevant issue of the periodical and for an announcement of the institution of proceedings to be published in Forum .

ORG On DATE the court allowed the application for an announcement to be published , but on CARDINAL DATE Mr PERSON appealed against that decision .

ORG On DATE the court found the applicant guilty under LAW ( see paragraph CARDINAL below ) of having insulted Mr PERSON and sentenced him to pay DATE - fines of CARDINAL NORP schillings ( ORG ) , with CARDINAL days’ imprisonment in default . In the court ’s view , the word GPE was an insult ( PERSON ) and could only ever be used as a disparagement ( GPE ) ; it therefore could never be used for any objective criticism ( sachliche ORG ) . In the written version of the judgment the court ordered the seizure of the relevant issue of Forum .

ORG On DATE the applicant lodged an appeal ( GPE ) against that judgment . In his submission , the court had held that the expression in question constituted an insult to Mr PERSON because it had disregarded the context in which it had been used . If the court had taken into account the whole of the article and its line of argument , it would have realised that the term complained of was justified since it served as a conclusion to the finding that Mr PERSON had in his speech excluded himself from the enjoyment of freedom of opinion .

Mr PERSON also complained that the seizure of the relevant issue of Forum had not been ordered when judgment was given .

ORG On DATE the applicant asked for the record of the hearing to be rectified and supplemented .

ORG On DATE ORG rectified part of the record and refused the further amendments sought by the applicant as irrelevant . On DATE he lodged an appeal ( Beschwerde ) against that decision .

ORG In the meantime , on DATE , ORG had rectified its judgment and removed from it the order for the seizure of Forum .

ORG On DATE ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal against the order to publish an announcement about the proceedings instituted by PERSON ( see paragraph CARDINAL above ) . On DATE ORG declared inadmissible the appeal against the decision to rectify the record of the hearing ( see paragraph CARDINAL above ) .

ORG On DATE ORG upheld ORG judgment but reduced the rate of the day - fine to ORG CARDINAL ( see paragraph CARDINAL above ) .

It noted that the word in issue appeared in the title of the article . Only those who had read not just the lines written by the applicant but also PERSON PERSON ’s speech and the comments accompanying it in Forum would understand that Mr PERSON had called the speaker an " idiot " as , in his view , he had in his speech excluded himself and the vast majority of NORP from the enjoyment of freedom of opinion . Those who had not would link the term GPE not with the conclusion that could be drawn from Mr PERSON ’s words but with his own person . It thus amounted to an insult that overstepped the limits of acceptable objective criticism ( die PERSON sachlich zulässiger ORG ) and PERSON must have been aware of that . At the most , he could have described the consequences of PERSON PERSON ’s remarks as stupid ( vertrottelt ) .

Admittedly , politicians who supported opinions that were open to criticism had to accept that they would be subject to especially hard - hitting attacks , even personal ones . The right to freedom of opinion must not , however , lead to insults replacing arguments of substance in political debate . The fact that a politician resorted to insults did not justify his detractors doing the same , unless personally provoked . Taking LAW ( article CARDINAL ) as the basis for a right to insult someone would bring about a general debasement ( generelle ORG ) of political debate .

ORG The relevant provisions of LAW read as follows :

" CARDINAL . Anyone who , in such a way that it may be noticed by a third person , attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding DATE or a fine ...

Anyone who commits this offence in a printed document , by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...

The person making the statement shall not be punished if it is proved to be true . In the case of the offence defined in paragraph CARDINAL he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true . "

" CARDINAL . Anyone who , in public or in the presence of several others , insults , mocks , mistreats or threatens to mistreat a third person , shall be liable to imprisonment not exceeding DATE or a fine ... unless he is liable to a more severe penalty under another provision .

Anyone who , solely from indignation at the behaviour of another person , allows himself to be provoked into insulting , mistreating or threatening to mistreat that person in a way that is excusable in the circumstances , shall have a defence if his indignation is understandable to the average person , regard being had in particular to the time that has elapsed since the event that provoked it . "


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants , Mr PERSON , Mr PERSON , PERSON PERSON and PERSON , are NORP nationals who live in PERSON . They were represented before the ORG by ORG , a NORP non - governmental organisation . ORG ( “ the Government ” ) were represented by their Agent ’s Delegates , PERSON , Senior Adviser at ORG , and Mr PERSON , ORG at ORG . Third - party comments were received from CARDINAL GPE - based non - governmental organisation , ORG , which had been given leave by the President to intervene in the written procedure ( Article CARDINAL § CARDINAL of LAW CARDINAL § CARDINAL ) .

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

CARDINAL of the applicants , Mr Em . GPE and PERSON , are permanent residents at GPE where they are registered . The first had applied and obtained in DATE a housing loan from ORG for the purchase of a constructible plot in GPE . The second had also applied in DATE to benefit from the housing programme in GPE , but his application was turned down because the conditions required were not met .

In DATE , the CARDINAL applicants , together with other GPE families , all of whom lived until then in PERSON ( LOC ) , moved to the “ PERSON ” area which is located at the administrative borders of GPE with GPE , in the island of GPE . The applicants proceeded to set up their sheds in a section of a road that was not yet in operation . The surrounding area was being used as an impromptu rubbish tip . According to information from local police , the place where the applicants established themselves belongs to GPE , while CARDINAL family settled in an adjacent plot of land belonging to a private person .

Various local officials such as representatives from ORG and from GPE , the deputy Prefect of PERSON as well as the commander of ORG visited the place where the applicants had set up their sheds and noted that the living conditions prevailing there were unsavoury and unhealthy . Certain efforts were made by the officials to find alternative sites for accommodation . Police officials eventually proceeded to file on DATE complaints for breach of the ACARDINAL/CARDINAL - CARDINAL/CARDINAL/CARDINAL Sanitary Regulation and in particular because “ on DATE the GPE created problems of aesthetics and pollution with rubbish and other old items ” .

It transpires from a document established on DATE by the police ORG that on DATE the owner of the plot of land where CARDINAL family had settled arrived at the office of the First Deputy Director of ORG , accompanied by his lawyer , and requested the police to put an end to the situation created in the area . DATE , the owner made a written report to the police whereby he complained about the occupation of his property by the illegal settlers who had transformed it into a rubbish tip and asked the police to intervene in order to expel them and destroy the shed which they had set up illegally .

On DATE , police arrived at the settlement and asked the settlers to leave , informing them of the possibility of a forced eviction if they failed to leave by themselves .

On DATE , police escorted a bulldozer and a demolition crew from a municipal enterprise to the settlement .

According to the applicants and as subsequently corroborated by the police , the bulldozer proceeded to demolish CARDINAL sheds . CARDINAL of them was the shed that was located on private property while the remaining CARDINAL sheds were located on municipal owned land . The police did not demolish the remaining CARDINAL sheds but warned those living there that should they not leave the area , their sheds would also be demolished .

On DATE , ORG filed a criminal complaint with ORG on the applicants’ eviction or threatened eviction while it also informed the Chief of the NORP Police of the eviction . In both cases , it called for the launching of criminal and disciplinary proceedings against both police officers and municipal officials who had been involved in the eviction , while it also called upon both the judicial and the police authorities to examine whether the actions of the police officers and municipal officials might have been racially motivated . In particular , the NGO complained of accumulated threats on the part of police officers , waste of alien ’s property , breach of domestic asylum and racial discrimination .

On DATE , the applicants decided to leave GPE and seek to settle elsewhere .

On DATE , ORG , which had received on DATE , notarized powers of attorney by the CARDINAL applicants , filed a complaint on their behalf . The new complaint was similar to the CARDINAL lodged on DATE .

On DATE , ORG dismissed both complaints . He noted that the first complaint was lodged not by the persons concerned but by ORG , which had not at the time a power of attorney , and that the second complaint was lodged out of time .

The applicants appealed against this decision to ORG ’s office but on DATE , the ORG dismissed the appeal as out of time . The ORG noted that the applicants had not respected the time - limit of DATE for lodging the appeal and held that the fact that they had taken knowledge of the decision of ORG belatedly , due to the absence abroad of their representative , did not constitute a case of force majeure or of an absolute impediment to file the appeal within the above - mentioned time - limit .


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways expropriated CARDINAL plots of land belonging to the applicant in GPE in order to build a motorway . A committee of experts assessed the value of the plot of land and the relevant amount was paid to the applicant when the expropriation took place .

Following the applicant ’s request for increased compensation , on DATE ORG awarded him additional compensation in the amount of MONEY ( TRL ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from DATE , the date of transfer of the title deeds .

On DATE ORG upheld the judgment .

On DATE ORG and Highways paid the applicant GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , interest included .

The relevant domestic law and practice are set out in the ORG v. GPE judgment of DATE ( Reports of Judgments and LAW ) .