EHRM, 12-02-2008, nr. 21906/04

On 8 January 2004 the applicant submitted a habeas corpus application to the Supreme Court (first-instance jurisdiction) challenging the lawfulness of his detention. In this context he invoked Article 3, Article 5 § 4 and Article 7 of the Convention. The Supreme Court, after considering the above-mentioned provisions, dismissed the application on 17 February 2004.

In his judgment Kallis J stated, inter alia, the following:

On 26 February 2004 the applicant lodged an appeal with the Supreme Court (appeal jurisdiction).

The applicant in his grounds of appeal challenged the interpretation of the term ‘life imprisonment’ made by the Assize Court when sentencing him in 1989 in view of the prison regulations applicable at the time and the notice given to the applicant by the prison authorities upon his admission to prison. He argued that the fact that he had not challenged his sentence following conviction could not be interpreted as an acceptance of the Assize Court's interpretation of the term ‘life imprisonment.’ He invoked, inter alia,Article 3, Article 5 § 4 and Articles 7 and 14 of the Convention in relation to the lawfulness of his continuing detention.

As regards Article 3 of the Convention, the applicant claimed that the conduct of the authorities had been contrary to this provision. In particular ground seven of his appeal read as follows:

Concerning Article 5 § 4 of the Convention, the applicant in ground six of his appeal noted that he was not requesting judicial review of his sentence on account of a change in policy concerning the day of his release but the examination of the lawfulness of his detention, given that even the prison authorities had admitted that he should have been released on 2 November 2002. In this connection, he complained of the lack of a mechanism to examine the lawfulness of his detention.

When challenging the Supreme Court's (first instance) interpretation of Article 7 of the Convention, the applicant distinguished his case from that of Hogben v. the United Kingdom (no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231), in that Hogben related to the manner of application of the sentence in view of the change in the policy of the parole board whereas in his case the issue raised was that of a retrospective change of the law due to unconstitutionality and the increase of his sentence from twenty years to life. In this connection, he emphasised that in Cyprus there was no parole board unlike in England.

On 20 July 2004 the Supreme Court dismissed the appeal. It stated, inter alia:

Article 53 of the Constitution provides as follows:

Following the events of 1963, in particular the withdrawal of Turkish-Cypriots from the Government and the consequent occupation of northern Cyprus by Turkish troops, the decision to remit, suspend, or commute any sentence under Article 53 (4) has to be taken by the President of the Republic with the concurrence of the Attorney-General of the Republic.

The Attorney-General may make recommendations or give advice to the President of the Republic concerning the early release of prisoners sentenced to life imprisonment. The President, however, is not bound by such advice or recommendations.

The relevant sections of the Prison Discipline Law of 1879, as applicable at the time the Prison (General) Regulations of 1981 came into force (see paragraph 40 below), provided as follows:

Section 4 — Regulations for prison discipline

Section 9 (1) — Remission for good conduct

Section 11(1) — Release on licence of persons serving imprisonment for life

The Prison (General) Regulations of 1981, made on the basis of section 4 of the Prison Discipline Law (Cap 286), provided as follows, in so far as relevant:

Regulation 7 — Release of a prisoner

Regulation 94 — Remission of sentence for good conduct

Regulation 96(c) — Calculation of remission for life prisoners

Regulation 97 — Date of expiration of sentence

Regulation 99 — Prisoners serving a life sentence

The Prison (General) Regulations (Amending) Regulations of 1987 entered into force on 13 March 1987 and amended the Prison (General) Regulations of 1981.

The following definition of ‘imprisonment for life’ was introduced in Regulation 2:

Regulation 93, governing the remission of the sentence of prisoners serving a sentence of life imprisonment, provided as follows:

Regulation 96(c) was struck out.

In the case of Malachtou v. the Attorney-General of Cyprus ((1981), 1 C.L.R 543) the Supreme Court, stated, inter alia, the following concerning subsidiary legislation:

In the case of Triftarides v. the Republic of Cyprus ((1985), judgment of 16 October 1985) the Supreme Court, when examining the manner of the remission of sentence by the President under Article 53 (4) of the Constitution with regard to a prisoner serving a ten-year sentence, stated the following:

In its judgment on 5 February 1988 in the case of The Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis (case no. 31175/87) the Nicosia Assize Court, when sentencing the accused for premeditated murder under the Criminal Code, stated, among other things, the following:

On 16 October 1991, in a letter to the Prison Director, through the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis:

On 2 January 1992, in a letter to the Director General of the Ministry of Justice, the Attorney-General at the time stated the following concerning the prisoner Mr Yiouroukkis:

On 9 October 1992 the Supreme Court (first instance) in the case of Hadjisavvas v. the Republic of Cyprus (see paragraph 19 above) ruled that the Regulations were unconstitutional and ultra vires. The prisoner in that case had also been convicted of premeditated murder and sentenced to life imprisonment. He had submitted a habeas corpus application to the Supreme Court when he was not released on the date that had been given to him as a release date by the prison authorities. The Supreme Court dismissed his application and affirmed that the term ‘life imprisonment’ under the Criminal Code meant imprisonment for the remainder of the life of the convicted person. In particular, the court stated as follows:

The court thus concluded that it had not been shown that Mr Hadjisavvas should have been released on the date given or any subsequent date and consequently, the habeas corpus application was rejected.

In 1993 nine life prisoners (eight serving a mandatory life sentence and one a discretionary life sentence) were released on the basis of Article 53 (4) of the Constitution. Their sentences were commuted to twenty years' imprisonment and then remitted so as to allow their immediate release. The procedure followed for the release of these prisoners was the same. The following example concerns the case of one such prisoner:

In a letter dated 28 September 1993 to the President of the Republic the Attorney-General of the Republic stated the following in relation to a life prisoner:

On 28 September 1993 the President of the Republic announced the following in relation to the same life prisoner:

On 29 September 1993 an announcement was made concerning the release of six life prisoners. It stated, in so far as relevant:

On 3 May 1996, the Prison Law of 1996 (Law 62(I)/96) was enacted, repealing and replacing the Prison Discipline Law (Cap. 286).

Section 9, governing the release of prisoners, provides as follows, in so far as relevant:

Section 12 of the Prison Law of 1996 provides that, with the exception of prisoners serving a life sentence, a sentence can be remitted if the prisoner demonstrates good conduct and industry. It reads as follows, in so far as relevant:

Section 14 of the Law (as amended by Law 12(I)/97), governing the release of prisoners under conditions, provides as follows:

Article 7 (2)

Article 8

Article 12 (1)

Article 12 (3)

Article 144

Under the Constitution the Attorney-General is an independent officer of the Republic. Article 112 of the Constitution, in so far as relevant, provides as follows:

Under Article 113 of the Constitution, the Attorney-General is the legal adviser of the Republic and the President:

Article 21 of the Council of Europe Convention on the Prevention of Terrorism provides as follows:

Article 21 — Discrimination clause

Matters relating to long-term imprisonment and conditional release were addressed by the Committee of Ministers as long ago as 1976, when it adopted Resolution (76) 2 on the treatment of long-term prisoners on 17 February 1976 (at the 254^th meeting of the Ministers' Deputies):

In its general report the sub-committee responsible for drafting the resolution stated:

On 30 September 1999 the Committee of Ministers adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation (adopted at the 681st meeting of the Ministers' Deputies) which provides as follows, in so far as relevant:

On 24 September 2003 the Committee of Ministers adopted Rec(2003)22 on conditional release (at the 853rd meeting of the Ministers' Deputies), which provides as follows, in so far as relevant:

On 11 January 2006 the Committee of Ministers adopted Rec(2006)2 on the European Prison Rules (at the 952nd meeting of the Ministers' Deputies), which provides as follows, in so far as relevant:

At the outset, the applicant accepted that the imposition on 10 March 1989, the date of his conviction, of a mandatory life sentence, defined by the Regulations as amounting in essence to twenty years, did not constitute a violation of Article 3 of the Convention. The applicant drew a distinction between the time the sentence had been imposed in 1989 and after 1996, when the twenty-year definition of a life sentence had been abolished. On the F5 form, which the applicant had received when he had been admitted to prison, it had been clearly marked ‘twenty years’ under the heading ‘Sentence’. He had then been informed that he would be released on 16 July 2002 subject to his good conduct. Following the commission of a disciplinary offence his release date was delayed until 2 November 2002. However, further to the Supreme Court's judgment in the case of Hadjisavvas v. The Republic of Cyprus (see paragraphs 19, 50 and 51 above), in which it had been declared that the Regulations were unconstitutional, and the subsequent repeal of those Regulations in 1996 excluding any possibility of remission for life prisoners, the imposition of mandatory imprisonment had become imprisonment for the rest of one's life.

The applicant stressed that under the legislative scheme currently in force in Cyprus there was no parole board system and no provision was made for the granting of parole to prisoners or for the protection of their rights during the execution of their sentence and their readmission to society. Thus, the principal purpose of the sentence of imprisonment imposed by the Cypriot courts and subsequently enforced by the relevant authorities was punitive. This, in the applicant's view, coupled with the mandatory nature of the sentence, was contrary to Article 3 of the Convention (relying, inter alia, on Mastromatteo v. Italy[GC], no. 37703/97, § 72, ECHR 2002-VIII). The procedure currently in place granted unfettered discretion to the President and was arbitrary in its nature. In this context the applicant referred to the ex officio report of 26 May 2004 by the Cypriot Commissioner for Administration (Ombudsman) on the penitentiary system of Cyprus and the conditions of detention in the central prisons (see paragraph 63 above).

Although prisoners fell within a specific category of right-holders, they nevertheless had rights that ought to be protected by the authorities (here the applicant relied on Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A, no. 61). Cypriot law imposed a mandatory sentence of life imprisonment in all cases of murder, depriving the courts of the vital discretion which judges should be allowed, having regard to the rights of the convicted person in imposing a sentence proportionate to the gravity of the offence committed. In this connection the applicant referred to Recommendation R (92) 17 of the Committee of Ministers of the Council of Europe to member States concerning consistency in sentencing, adopted by the Ministers' Deputies on 19 October 1991, according to which ‘whatever rationales for sentencing are declared, disproportionality between the seriousness of the offence and the sentences should be avoided.’ He also noted that even under the Rome Statute 1998, genocide was not automatically punished by life imprisonment (Article 77 (1) of the Rome Statute —see paragraph 75 above).

The applicant claimed that the framework for protection of the rights of persons serving life imprisonment sentences in Cyprus was contrary to the practices in most other member States of the Council of Europe and that there was an obvious need to establish a common policy. In this connection the applicant stated that in both France and Italy it had been explicitly recognised that an offender sentenced to life imprisonment had a fundamental right to be considered for release. In addition, the Federal Constitutional Court of Germany had recognised that a life sentence that had been fully implemented invariably entailed the loss of human dignity and the denial of the controversial right to rehabilitation. A release mechanism had been set up in Germany to ensure that life sentences were not implemented in a way that undermined human dignity by suppressing all hopes of release. Furthermore, it was a general requirement of international human rights law that a convicted person should not be deprived of a second opportunity to return to society, following a non-problematic serving of his punishment and sentence and the completion of a rehabilitation procedure.

Finally, although the applicant welcomed the developments towards the establishment of a parole board in Cyprus, he noted that these were belated with regard to his case and, in any event, merely consisted of a draft bill which might never be passed or might not be passed in the proposed form.

With regard to the second part of his complaint under Article 3, the applicant submitted that his continuing detention beyond 2 November 2002 had caused him intense physical and mental suffering and that he had been deprived of all hope of obtaining a remission of his sentence which had become irreducible. This was not only obvious from any contact anyone made with him but was also reflected in his efforts to gain his freedom.

During his detention the applicant had been under the legitimate expectation that he would be released in 2002 since his date of release was set in the form given to him by the prison authorities. Despite his compliance with the Regulations and through no fault of his own, his release had in effect been cancelled. As a result, since 2002, he had been subjected to continuing feelings of anguish and uncertainty. The applicant claimed that he had now been left in a state of distress over his future, which was analogous to being on ‘death row’ in that his future was death while in prison.

With regard to the applicant's first complaint, the Government emphasised that the applicant had not been sentenced to an irreducible life sentence with no possibility of early release. Notwithstanding the gravity of his crime, like all life prisoners, he had sufficient hope for release under domestic law for the purposes of Article 3 of the Convention. First of all, under Article 53 (4) of the Constitution, the President of the Republic could, on the recommendation of the Attorney-General, remit, suspend or commute any sentence passed by a court in the Republic. Secondly, under section 14 of the Prison Law of 1996, the President could, with the agreement of the Attorney-General, order the conditional release of a prisoner, including a prisoner serving a life sentence, at any time. Prisoners were free to apply to the President and the Attorney-General whenever they wished for release under the above provisions. Although release was a matter within the exclusive authority of the President, his decision involved the advice and required the agreement of the Attorney-General, who acted as an independent officer and not as part of the Republic's executive authorities. Consequently, his participation added an element of independence into the process.

In deciding whether to exercise his powers under the above provision, the President took into account the nature of the offence, the amount of time a prisoner had already served and any exceptional or compassionate grounds for early release. In this connection, the Government noted that an expression of genuine remorse on the part of a lifer would be an important consideration though not decisive. The President further determined whether the continued detention of the prisoner was necessary for the purposes of retribution and deterrence or for protecting the public from risk of serious harm.

The applicant had in fact applied for release under Article 53 (4) of the Constitution on several occasions throughout the duration of his imprisonment but it had not been considered appropriate to release him. However, he had never applied for conditional release pursuant to section 14 (1) of the Prison Law of 1996.

The Government observed that from an examination of the Commission's and Court's case-law on Article 3, the appropriate test to apply was whether an applicant had been deprived of ‘all hope of obtaining an adjustment of his sentence’; a test which entailed asking whether the sentence was reducible de jure and de facto. If a sentence of life imprisonment was reducible de jure, the mere fact that the prospects of early release were limited or that the decision about whether to grant early release depended on the discretion of the executive, even if that discretion was not subject to the review of the domestic courts, did not violate Article 3, provided that de facto there was a realistic possibility of that discretion being exercised in the future. A life prisoner would have to show either that early release was a legal impossibility or that there was no realistic prospect of early release in practice. In this connection, the Government relied on the Court's decision in the case of Einhorn v. France ((dec.), no. 71555/01, ECHR 2001-XI) and argued that there were clear parallels between the situation in Cyprus and that in Pennsylvania.

In the present case, the applicant had a continuing possibility of early release de jure, under Article 53 (4) of the Constitution and section 14 (1) of the Prison Law of 1996. There was no reason to think that these provisions would never be exercised de facto. In practice, life prisoners had been released. Subsequent to the nine life prisoners released in 1993, two other life prisoners had been released under Article 53 (4) of the Constitution in 1997 and 2005. There was no evidence in the present case indicating that in a change of circumstances in which the applicant displayed significant remorse for his crimes, which he had not done so far, and was no longer considered to represent any significant danger to society, he could not be released under the above provisions.

Notwithstanding the above, the Government recognised that there was scope for improvement in the current system vis-à-vis life prisoners. In particular, they noted that, at present, firstly, there was no published procedure or criteria governing the operation of Article 53 (4) of the Constitution or section 14 (1) of the Prison Law of 1996; secondly, there was no obligation to disclose to a prisoner the opinion of the Attorney-General on his application; thirdly, there was no requirement for the President to give reasons for refusing an application for early release, nor was this the practice; and, finally, refusal to order early release was not amenable to judicial review in the courts.

Furthermore, although there was no clear consensus among member States with regard to early release for lifers and the criteria to be applied in this respect, there was an increasing emphasis in the practice of some member States, in the statements issued by Council of Europe institutions and in the Court's jurisprudence, on the need for fair, consistent and transparent procedures in the administration of provisions governing early release for those serving life sentences. With all the above in mind and before the present application had been lodged, the Ministry of Justice and Public Order had initiated a review of the procedures in Cyprus with a view to improving the rights of life prisoners. The Government noted that the proposals for legislative reform would be put forward at some time during 2007. They submitted a draft bill that had been prepared for the purposes of amending section 14 of the Prison Law. The proposals for amendment involved, inter alia, the fixing of a minimum period to be served to meet the requirements of retribution and deterrence before a prisoner could be considered eligible for parole on licence under section 14 of the Prison Law and the establishment of an independent parole board with responsibility for assessing the risk to the public once the relevant part of the sentence had been served and with the power to direct a prisoner's release on licence where the evidence indicated an acceptable level of risk. The provisions of the bill set out in detail the procedure to be followed by the board and the rights of prisoners in this matter. Nonetheless, the Government stressed that the fact that they were considering reform of the present system did not entail an acceptance that there had been a violation of the applicant's Convention rights.

With regard to the applicant's second complaint, the Government submitted that although the effect of the judgment in the case of Hadjisavvas and the subsequent repeal of the Regulations had caused disappointment to the applicant in view of his expectation that he would be released on 2 November 2002, such disappointment did not cross the high threshold of severity required for the finding of a violation of Article 3 of the Convention. This was particularly so, given that in sentencing the applicant, the Limassol Assize Court had adopted the earlier judgment of the Nicosia Assize Court in the case of The Republic of Cyprus v. Yiouroukkis, casting doubts on the compatibility of the Regulations both with the Constitution and section 11 of the Prison Discipline Law. The Limassol Assize Court had rejected the possibility of imposing three consecutive terms and had concluded that imprisonment for life meant imprisonment for the remainder of the accused's life. The applicant had also been present at the sentencing hearing. Consequently, the applicant's expectation about his future release must have been significantly qualified by that court's judgment, notwithstanding the administrative form given to him shortly thereafter upon his admission to prison.

Furthermore, if the applicant had sought the advice of counsel immediately after the sentence had been passed, he would no doubt have been advised that he should not assume that he would automatically be released after fifteen or even twenty years. In addition, three and a half years after the applicant had been sentenced, the Supreme Court delivered its judgment in the case of Hadjisavvas definitively resolving the issue. So for the past fourteen years the position in domestic law had been quite clear. It could not therefore be said that the applicant had been in state of uncertainty throughout his sentence.

Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy[GC], no. 26772/95, § 119, ECHR 2000-IV). Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, p. 65, § 162).

The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland[GC], no. 30210/96, §§ 92–94, ECHR 2000-XI).

The imposition of a sentence of life imprisonment on an adult offender is not in itself prohibited by or incompatible with Article 3 or any other Article of the Convention (see, inter alia, among many authorities, Kotälla v. the Netherlands, no. 7994/77, Commission decision of 6 May 1978, Decisions and Reports (DR) 14, p. 238; Bamber v. the United Kingdom, no. 13183/87, Commission decision of 14 December 1988; and Sawoniuk v. the United Kingdom (dec.), no. 63716/00, ECHR 2001-VI). At the same time, however, the Court has also held that the imposition of an irreducible life sentence on an adult may raise an issue under Article 3 (see, inter alia, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn, cited above; Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002; and Wynne v. the United Kingdom (dec.), no. 67385/01, 22 May 2003).

In determining whether a life sentence in a given case can be regarded as irreducible the Court has sought to ascertain whether a life prisoner can be said to have any prospect of release. An analysis of the Court's case-law on the subject discloses that where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3. The Court has held, for instance, in a number of cases that where detention was subject to review for the purposes of parole after the expiry of the minimum term for serving the life sentence, that it could not be said that the life prisoners in question had been deprived of any hope of release (see, for example, Stanford, cited above; Hill v. the United Kingdom (dec.), no. 19365/02, 18 March 2003; and Wynne, cited above). The Court has found that this is the case even in the absence of a minimum term of unconditional imprisonment and even when the possibility of parole for prisoners serving a life sentence is limited (see for example, Einhorn (cited above, §§ 27 and 28). It follows that a life sentence does not become ‘irreducible’ by the mere fact that in practice it may be served in full. It is enough for the purposes of Article 3 that a life sentence is de jure and de facto reducible.

Consequently, although the Convention does not confer, in general, a right to release on licence or a right to have a sentence reconsidered by a national authority, judicial or administrative, with a view to its remission or termination (see, inter alia, Kotälla and Bamber, both cited above; and Treholt v. Norway, no. 14610/89, Commission decision of 9 July 1991, DR 71, p. 168), it is clear from the relevant case-law that the existence of a system providing for consideration of the possibility of release is a factor to be taken into account when assessing the compatibility of a particular life sentence with Article 3. In this context, however, it should be observed that a State's choice of a specific criminal justice system, including sentence review and release arrangements, is in principle outside the scope of the supervision the Court carries out at European level, provided that the system chosen does not contravene the principles set forth in the Convention (see, mutatis mutandis, Achour v. France[GC], no. 67335/01, § 51, ECHR 2006-IV).

In the instant case, the Court must determine whether the sentence of life imprisonment imposed on the applicant in the particular circumstances has removed any prospect of his release.

In reaching its decision the Court has had regard to the standards prevailing amongst the member States of the Council of Europe in the field of penal policy, in particular concerning sentence review and release arrangements (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 49, § 102; and V. v. the United Kingdom, [GC], no. 24888/94, § 72, ECHR 1999-IX). It has also taken into account the increasing concern regarding the treatment of persons serving long-term prison sentences, particularly life sentences, reflected in a number of Council of Europe texts (see paragraphs 68–73 above).

At the outset the Court notes that in Cyprus the offence of premeditated murder carries a mandatory sentence of life imprisonment (see paragraphs 31–33 above), which under the Criminal Code, as confirmed by the domestic courts, is tantamount to imprisonment for the rest of the convicted person's life. Furthermore, it observes that Cypriot law does not provide for a minimum term for serving a life sentence or for the possibility of its remission on the basis of good conduct and industry. However, the adjustment of such a sentence is possible at any stage irrespective of the time served in prison. In particular, under Article 53 (4) of the Constitution as it has been applied since 1963, the President of the Republic, on the recommendation of the Attorney-General, may suspend, remit or commute any sentence passed by a court (see paragraphs 36 and 37 above). The President can therefore at any point in time commute a life sentence to another one of a shorter duration and then remit it, affording the possibility of immediate release. Moreover, section 14 of the Prison Law of 1996 provides for the conditional release of prisoners, including life prisoners (see paragraph 59 above). In line with this provision, subject to the provisions of the Constitution, the President, with the agreement of the Attorney-General, can order by decree the conditional release of a prisoner at any time.

Admittedly, it follows from the above provisions that the prospect of release for prisoners serving life sentences in Cyprus is limited, any adjustment of a life sentence being only within the President's discretion subject to the agreement of the Attorney-General. Furthermore, as acknowledged by the Government, there are certain shortcomings in the current procedure (see paragraph 91 above). Notwithstanding, the Court does not find that life sentences in Cyprus are irreducible with no possibility of release; on the contrary, it is clear that in Cyprus such sentences are both de jure and de facto reducible. In this connection, the Court notes that from the parties' submissions it transpires that life prisoners have been released under Article 53 (4) of the Constitution. In particular, nine life prisoners were released in 1993 and another two in 1997 and 2005 respectively (see paragraphs 52 and 90 above and paragraphs 158 below). All of these prisoners, apart from one, had been serving mandatory life sentences. In addition, a life prisoner can benefit from the relevant provisions at any time without having to serve a minimum period of imprisonment. Consequently, it cannot be inferred that the applicant has no possibility of release and he has not adduced evidence to warrant such an inference.

In his submissions, the applicant has placed great emphasis on the lack of a parole board system in Cyprus. However, the Court reiterates that matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy (see, mutatis mutandis, Achour, cited above, § 44). In this connection, the Court observes that at the present time there is not yet a clear and commonly accepted standard amongst the member States of the Council of Europe concerning life sentences and, in particular, their review and method of adjustment. Moreover, no clear tendency can be ascertained with regard to the system and procedures implemented in respect of early release.

In view of the above, the Court considers that the applicant cannot claim that he has been deprived of any prospect of release and that his continued detention as such, even though long, constitutes inhuman or degrading treatment. However, the Court is conscious of the shortcomings in the procedure currently in place (see paragraph 91 above) and notes the recent steps taken by the Government for the introduction of reforms.

Furthermore, with regard to the applicant's second complaint, the Court finds that although the change in the applicable legislation and consequent frustration of his expectations of release must have caused him a certain anxiety, it does not consider that in the circumstances this attained the level of severity required to fall within the scope of Article 3. Bearing in mind the chronology of events and, in particular, the lapse of time between them, it cannot be said that the applicant could justifiably harbour genuine expectations that he would be released in November 2002. In this connection, the Court notes that apart from the clear sentence passed by the Assize Court in 1989, the relevant changes in the domestic law happened within a period of approximately four years, that is, between 1992 and 1996, thus about six years before the release date given by the prison authorities to the applicant came up. Therefore, any feelings of hope on the part of the applicant linked to the prospect of early release must have diminished as it became clear with the changes in domestic law that he would be serving the life sentence passed on him by the Assize Court.

It is true that a life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entails anxiety and uncertainty related to prison life but these are inherent in the nature of the sentence imposed and, considering the prospects for release under the current system, do not warrant a conclusion of inhuman and degrading treatment under Article 3.

Accordingly, the Court finds that there has been no violation of that provision.

The applicant submitted that when the Limassol Assize Court had sentenced him to a mandatory sentence of ‘life imprisonment’, in accordance with the Prison Regulations applicable at the material time, ‘life imprisonment’ had meant imprisonment for a term of twenty years. Although, the Assize Court had been aware of this definition, it had failed to review the matter and declare the said Regulations unconstitutional or, at least, inapplicable to the applicant's case. It had simply proceeded to impose the sentence. He had then served his sentence but had not been released when his sentence had expired on 2 November 2002. By that date the applicant had exhausted the punitive element of his offence for murder and his detention had thus become arbitrary or disproportionate in terms of the objectives of the sentence imposed on him.

The applicant maintained that it was hard to understand the logic behind or the justification for his continued detention, especially since there was no evidence that he was mentally unstable and dangerous to the public (relying, inter alia, on Stafford v. the United Kingdom[GC], no. 46295/99, §§ 28–49 and 62–83, ECHR 2002-IV).

The Government submitted that the applicant's continuing detention beyond 2 November 2002 was compatible with Article 5 § 1 (a) of the Convention. The applicant had been serving a mandatory sentence of imprisonment for life which had been imposed on him by a court's judgment, on 10 March 1989, pursuant to section 203 of the Criminal Code, following conviction. At all times since his conviction, the applicant's detention had been authorised by the sentence of life imprisonment prescribed by the Criminal Code and passed by the Limassol Assize Court. The causal link with the original sentence had not therefore been broken. In this connection, they pointed out that the applicant's sentence, being a mandatory life sentence, had not been imposed by reference to considerations pertaining to the dangerousness of the offender, which were amenable to change over time; the sentence was not divided up into a punitive element, that is, a punitive ‘tariff’ phase of detention, and a subsequent element based on the risk presented by the prisoner, that is, an ensuing phase of detention on grounds of public protection.

The Supreme Court's judgment in the case of Politis v. the Republic of Cyprus (see paragraph 35 above) made it clear that the Constitution had singled out certain categories of crimes, including premeditated murder, for exceptional treatment in view of their gravity and their repercussions for the well-being of society. This was irrespective of the fact that a life prisoner might, in practice, be released under the Constitution or the Prison Law of 1996. Likewise, in the case of Hadjisavvas, the Supreme Court had held that the legislature did not equate the sentence of life imprisonment to imprisonment for any time-span, either where this was imposed as a mandatory measure of punishment under section 203 (2) of the Criminal Code, or where it was imposed as a discretionary measure under section 23 of the Code.

For this reason the Government considered that the position in Cyprus was equivalent to that examined by the Court in the case of Wynne v. the United Kingdom (judgment of 18 July 1994, Series A no. 294-A), in which the Court held that a mandatory life sentence had been imposed automatically as the punishment for the offence of murder irrespective of the considerations pertaining to the dangerousness of the offender. The developments in English domestic law subsequent to the above case had no parallel in Cyprus where there was no equivalent of the tariff-fixing exercise.

The Government finally submitted that the Regulations had been irrelevant to the lawfulness of the applicant's continued detention since by the time they might have operated in such a way as to result in the applicant's early release in November 2002, they had been repealed by the Prison Law of 1996.

The Court reiterates that where the ‘lawfulness’ of detention is at issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see, inter alia, Stafford v. the United Kingdom[GC], cited above; and Amuur v. France, judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, pp. 850–51, § 50). In this respect, the Court's case-law indicates that it may be necessary to look beyond the appearances and the language used and concentrate on the realities of the situation (see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 20–21, § 38). In addition, any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness (see, among many other authorities, Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, pp. 17–18,19–20, §§ 39 and 45; and Amuur, cited above, pp. 850–51, § 50).

The ‘lawfulness’ required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of Article 5 § 1 (see Bozano v. France, judgment of 18 December 1986, Series A no. 111, p. 23, § 54; and Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, p. 23, § 42). Furthermore, the word ‘after’ in sub-paragraph (a) does not simply mean that the detention must follow the ‘conviction’ in point of time: in addition, the ‘detention’ must result from, ‘follow and depend upon’ or occur ‘by virtue of’ the ‘conviction’. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue (see Van Droogenbroeck, cited above, pp. 19 and 21, §§ 35 and 39; and Weeks, cited above, p. 23, § 42).

The Court is in no doubt, and it was common ground between the parties, that the applicant was convicted in accordance with a procedure prescribed by law by a competent court within the meaning of Article 5 § 1 (a) of the Convention. Furthermore, the applicant does not contest the lawfulness of his detention until 2 November 2002. Rather, the question to be determined is whether the detention of the applicant after that date conformed to the original mandatory life sentence imposed on him.

The Court observes that the applicant was convicted for premeditated murder by the Limassol Assize Court on 9 March 1989 and on the next day received a mandatory life sentence by that court on the basis of section 203 (2) of the Criminal Code. Such a sentence is imposed automatically under the Criminal Code as the punishment for the offence of premeditated murder irrespective of the considerations pertaining to the dangerousness of the offender. In imposing the life sentence the Limassol Assize Court made it quite plain that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code and not for a period of twenty years (see paragraphs 14 and 15 above).

The Court considers therefore that the fact that the applicant was subsequently given a notice by the prison authorities, on the basis of the Prison Regulations in force at the time, setting a conditional release date cannot and, does not, affect the sentence of life imprisonment passed by the Limassol Assize Court or render his detention beyond the above date unlawful. In the Court's view there is a clear and sufficient causal connection between the conviction and the applicant's continuing detention, which was pursuant to his conviction and in accordance with the mandatory life sentence imposed on him by a competent court, in conformity with the requirements of the Convention and free of arbitrariness.

On the facts of the case, therefore, the Court is satisfied that the continuing detention of the applicant after 2 November 2002 is justified under Article 5 § 1 (a) of the Convention. There has therefore been no violation of Article 5 § 1.

The applicant submitted that when he had been sentenced to mandatory life imprisonment on 10 March 1989 by the Limassol Assize Court, under the Prison Regulations applicable at the time, ‘life imprisonment’ had been tantamount to imprisonment for a period of twenty years. As a result of the repeal of the Regulations, the amendment of the relevant legislative provisions and the retroactive application of the provisions thus amended, he had been subjected to an unforeseeable prolongation of his term of imprisonment from a definite twenty-year sentence to an indeterminate term for the remainder of his life, with no prospect of remission, and to a change in the conditions of his detention. Thus, a heavier penalty had been imposed than that applicable at the time he had committed the offence of which he had been convicted, in breach of Article 7 of the Convention.

In the applicant's view, the Government should be estopped from denying that his sentence had been more than twenty years and that by applying the Regulations he would have served his sentence by 2002. It was clear from the facts that the applicant believed that his sentence expired in 2002. He had not appealed against his sentence, relying on the notice and release date given by the prison authorities. In fact, both the prison authorities and the Office of the Attorney-General had been aware of this. The prolongation of his sentence following the repeal of the Regulations could not have been foreseen either at the time of committing the offence or at the time of his sentencing. His sentence had been retroactively increased from a definite twenty-year term to an indefinite term without the prospect of remission.

Finally, the applicant considered that his case did not fall within the ambit of the exemption provided for in the second paragraph of Article 7 of the Convention.

The Government pointed out that Article 7 did not relate to changes in how a sentence which was passed by a court was executed, as opposed to changes in the substantive penalty prescribed for the offence itself (relying inter alia, on Hogben v. the United Kingdom, cited above; Grava v. Italy no. 43522/98, § 51, 10 July 2003; and Uttley v. the United Kingdom (dec.) no. 36946/03, 29 November 2005).

Section 203 (2) of the Criminal Code, imposing a mandatory life sentence for premeditated murder, was the only substantive provision of domestic law prescribing the applicable penalty to be imposed by the courts for such a crime. In contrast, the Regulations did not contain a provision which defined in substantive terms the penalty for the offence of murder but had been subordinate legislation made on the basis of, and for the purposes of, the Prison Discipline Law and simply concerned the manner of the execution of that sentence. They had not been made pursuant to the Criminal Code, but rather under sections 4 and 9 of the Prison Discipline Law, which, as its title suggested, had been concerned with prison discipline. Neither of the two sections authorised the making of regulations prescribing the sentences that could be imposed by the courts.

The definition in Regulation 2 (as inserted by the 1987 Regulations) that ‘imprisonment for life' meant imprisonment for twenty years’ and Regulation 93 (as amended by the 1987 Regulations) prescribing that a life prisoner could earn a remission of his sentence on the ground of good conduct and diligence concerned the execution of the life sentence imposed by the court.

The Government noted that the above analysis had been accepted by the domestic courts. First of all, the Limassol Assize Court, when sentencing the applicant in March 1989, had questioned the validity of the Regulations under the Constitution and held that, in any event, even if they had been valid, they could not have been taken into account when sentencing the applicant so as to enable it to impose three consecutive life sentences. That court had considered that ‘imprisonment for life meant imprisonment for the remainder of the accused's life.’ Under the Constitution subordinate legislation could not alter that position. No appeal had been brought against this sentence in 1989. Furthermore, the Supreme Court, when examining the applicant's appeal concerning his habeas corpus application, had held that the then existing Regulations did not change the fact that in accordance with the law, imprisonment for the remainder of the applicant's life had been imposed.

In the Government's view the Supreme Court's interpretation of the legal effect of the Regulations had been correct. The penalty for the offence within the meaning of Article 7 of the Convention had always been mandatory life imprisonment in accordance with section 203 (2) of the Criminal Code. A change in law which required a prisoner to serve a greater part of his original sentence than he would have had to serve at the time he committed the offence did not constitute a violation of Article 7. Judged from the prisoner's perspective, the position was no doubt harsher. But this did not alter the fact that the ‘applicable penalty’ for the purposes of Article 7 remained throughout the penalty prescribed by the relevant domestic law.

If the applicant's argument were correct, it would mean that a retrospective change in subordinate legislation or indeed any change in administrative practice in any member State of the Council of Europe which postponed the date on which a prisoner was eligible for early release from a prison sentence, whether determinate or indeterminate, that was lawfully imposed by a court would be incompatible with Article 7. That would be a significant departure from the existing case-law under the Convention.

For all the above reasons, the Government considered that it could not be said that the repeal of the Regulations had resulted in the retroactive increase of the penalty of life imprisonment which had been applicable at the time the murders were committed by the applicant and which had been imposed on him by the Limassol Assize Court in respect of those offences.

Finally, the Government noted that in the event the Court were to conclude that at the time of the commission of the offence the Regulations had operated in domestic law in such a way as to limit the maximum penalty for the offence to twenty years (as distinct from governing the manner of implementation of a penalty of life imprisonment), then the repeal of those Regulations had resulted in a retrospective increase in that maximum. It would then also be necessary to consider whether the maximum penalty prescribed by the regulations was fifteen years or twenty years. If the latter was the case then the applicant would not have been entitled to release pursuant to the requirements of Article 7 until July 2007. It had been clear under the Regulations that the maximum period a life prisoner could be required to serve was twenty years and the earliest date of release was after serving fifteen years of his sentence. Although it was administrative practice to deduct the five years at the outset of the sentence, so as to identify the earliest possible date of release, this practice was not required by the Regulations or by the enabling legislation. An administrative practice of such nature could not in the Government's view constitute a substantive restriction on the maximum length of the sentence imposed by the court. The Government, however, emphasised that this was not the correct interpretation of domestic law and that the interpretation given by the Supreme Court should be followed and adopted by the Court.

The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom and C.R. v. the United Kingdom, 22 November 1995, Series A no. 335-C, pp. 41–42, § 35, and pp. 68 and 69, §§ 33, respectively).

Accordingly, it embodies, in general terms, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 22, § 52). While it prohibits in particular extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy (Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII; and Achour, cited above, § 41).

When speaking of ‘law’ Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 30, § 47; Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, p. 21 § 29; and Casado Coca v. Spain, judgment of 24 February 1994, Series A no 285-A, p. 18, § 43). In this connection, the Court has always understood the term ‘law’ in its ‘substantive’ sense, not its ‘formal’ one. It has thus included both enactments of lower rank than statutes and unwritten law (see, in particular, mutatis mutandis, the De Wilde, Ooms and Versyp v. Belgium, judgment of 18 June 1971, Series A no. 12, p. 45, § 93). In sum, the ‘law’ is the provision in force as the competent courts have interpreted it (see Leyla Şahin v. Turkey[GC], no. 44774/98, § 88, ECHR 2005-XI).

Furthermore, the term ‘law’ implies qualitative requirements, including those of accessibility and foreseeability (see, among other authorities, Cantoni v. France, judgment of 15 November 1996, Reports 1996-V, p. 1627, § 29; Coëme and Others, cited above, § 145; and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002). These qualitative requirements must be satisfied as regards both the definition of an offence and the penalty the offence in question carries (see Achour, cited above, § 41). An individual must know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable and what penalty will be imposed for the act committed and/or omission (see, among other authorities, Cantoni, cited above, p. 1627, § 29). Furthermore, a law may still satisfy the requirement of ‘foreseeability’ where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among other authorities, Cantoni, cited above, p. 1629, § 35; and Achour, cited above, § 54).

The Court has acknowledged in its case-law that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, mutatis mutandis, Sunday Times no. 1, cited above, p. 31, § 49, and Kokkinakis, cited above, p. 19, § 40). The role of adjudication vested in the courts is precisely to dissipate such interpretational doubts as remain (see, mutatis mutandis, Cantoni, cited above). Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, ‘provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen’ (see S.W. v. the United Kingdom, cited above, § 36, and Streletz, Kessler and Krenz v. Germany[GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001-II).

The concept of ‘penalty’ in Article 7 is, like the notions of ‘civil right and obligations’ and ‘criminal charge’ in Article 6 § 1 of the Convention, autonomous in scope. To render the protection afforded by Article 7 effective the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see Welch v. the United Kingdom, judgment of 9 February 1995, Series A no. 307-A, p. 13, § 27; and Jamil v. France, judgment of 8 June 1995, Series A no. 317-B, p. 27 ,§ 30). The wording of Article 7 paragraph 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a ‘criminal offence’. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, cited above, p. 13, § 28; and Jamil, cited above, pp. 27–28, § 31). To this end, both the Commission and the Court in their case-law have drawn a distinction between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relates to the remission of a sentence or a change in a regime for early release, this does not form part of the ‘penalty’ within the meaning of Article 7 (see, inter alia, Hogben, cited above; Hosein v. the United Kingdom, no. 26293/95, Commission decision of 28 February 1996; Grava, cited above, § 51 and Uttley, cited above). However, in practice, the distinction between the two may not always be clear-cut.

At the outset the Court notes that it is common ground between the parties that at the time the applicant was prosecuted and convicted, the offence of premeditated murder was punishable by mandatory life imprisonment under section 203 (2) of the Criminal Code and that he had been sentenced under that provision. The legal basis for the applicant's conviction and sentence was therefore the criminal law applicable at the material time and his sentence corresponded to that prescribed in the relevant provisions of the Criminal Code.

The essence of the parties' arguments concerns the actual meaning of the term ‘life imprisonment’. On the one hand the applicant maintains that at the time he committed the offence of which he was convicted life imprisonment had been tantamount to imprisonment for a period of twenty years. The subsequent repeal of the Prison Regulations and the retroactive application of the New Prison Law of 1996 brought about both an unforeseeable prolongation of his term of imprisonment to an indefinite term for the remainder of his life and a change in the conditions of his detention. On the other hand the Government submit that section 203 (2) of the Criminal Code was, and still remains, the only substantive provision of domestic law prescribing the penalty of a life sentence to be imposed by the courts for premeditated murder. This was the penalty imposed by the Limassol Assize Court on the applicant. The Prison Regulations concerned the execution of the life sentence imposed by the court, namely, the assessment of a possible remission of his sentence on the ground of good conduct and diligence.

Consequently, the issue that the Court needs to determine in the present case is what the ‘penalty’ of life imprisonment actually entailed under the domestic law at the material time. The Court must, in particular, ascertain whether the text of the law, read in the light of the accompanying interpretative case-law, satisfied the requirements of accessibility and foreseeability. In doing so it must have regard to the domestic law as a whole and the way it was applied at the material time.

Although at the time the applicant committed the offence it was clearly provided by the Criminal Code that the offence of premeditated murder carried the penalty of life imprisonment, it is equally clear that at that time both the executive and the administrative authorities were working on the premise that this penalty was tantamount to twenty years' imprisonment (see paragraph 65 above). The prison authorities were applying the Prison Regulations, made on the basis of the Prison Discipline Law (Cap. 286), under which all prisoners, including life prisoners, were eligible for remission of their sentence on the ground of good conduct and industry. For these purposes, Regulation 2 defined life imprisonment as meaning imprisonment for twenty years (see paragraph 42 above). As admitted by the Government, this was understood at the time by the executive and the administrative authorities, including the prison service, as imposing a maximum period of twenty years to be served by any person who had been sentenced to life imprisonment (see paragraph 65 above). The prison authorities were therefore assessing the remission of the life sentences of prisoners on the basis of twenty years' imprisonment. This also transpires from the letter sent by the then Attorney-General of the Republic to the President at the time (see paragraph 53 above).

On 5 February 1988 the Nicosia Assize Court, in its sentencing judgment in the case of the Republic of Cyprus v. Andreas Costa Aristodemou, alias Yiouroukkis, clearly stated that life imprisonment under the Criminal Code was for the remainder of the biological existence of the convicted person and not for twenty years. Subsequently, on 10 March 1989, the Limassol Assize Court, when passing sentence on the applicant, relied on the findings of the Nicosia Assize Court in the above case. It accordingly sentenced the applicant to ‘life imprisonment’ for the remainder of his life. In spite of this, when the applicant was admitted to prison to serve his sentence, he was given a written notice by the prison authorities with a conditional release date, the remission of his life sentence having been assessed on the basis that it amounted to imprisonment for a term of twenty years. It was not until 9 October 1992 in the case of Hadjisavvas v. the Republic of Cyprus (see paragraphs 19 and 50 above)) that the Regulations were declared unconstitutional and ultra vires by the Supreme Court (see paragraphs 50–51 above). They were eventually repealed on 3 May 1996.

In view of the above, while the Court accepts the Government's argument that the purpose of the Regulations concerned the execution of the penalty, it is clear that, in reality, the understanding and the application of these Regulations at the material time went beyond this. The distinction between the scope of a life sentence and the manner of its execution was therefore not immediately apparent. The first clarification by a domestic court in this respect was given in the Yiouroukkis case subsequent to the commission of the offence by the applicant that led to his prosecution and conviction. Furthermore, the Court notes that in both the case of Yiouroukkis and that of the applicant, the prosecution was inclined to take the view that life imprisonment was limited to a period of twenty years (see paragraphs 47 and 15 above).

At the same time, however, the Court cannot accept the applicant's argument that a heavier penalty was retroactively imposed on him since in view of the substantive provisions of the Criminal Code it cannot be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years' imprisonment.

The Court considers, therefore, that there is no element of retrospective imposition of a heavier penalty involved in the present case but rather a question of ‘quality of law’. In particular, the Court finds that at the time the applicant committed the offence, the relevant Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, even with appropriate advice, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution. Accordingly, there has been a violation of Article 7 of the Convention in this respect.

However, as regards the fact that as a consequence of the change in the prison law (see paragraph 58 above), the applicant, as a life prisoner, no longer has a right to have his sentence remitted, the Court notes that this matter relates to the execution of the sentence as opposed to the ‘penalty’ imposed on him, which remains that of life imprisonment. Although the changes in the prison legislation and in the conditions of release may have rendered the applicant's imprisonment effectively harsher, these changes cannot be construed as imposing a heavier ‘penalty’ than that imposed by the trial court (see Hogben and Hosein, both cited above). In this connection, the Court would reiterate that issues relating to release policies, the manner of their implementation and the reasoning behind them fall within the power of the Member States in determining their own criminal policy (see Achour, cited above, § 44). Accordingly, there has not been a violation of Article 7 of the Convention in this regard.

In conclusion, the Court finds that there has been a violation of Article 7 of the Convention with regard to the quality of the law applicable at the material time. It further finds that there has been no violation of this provision in so far as the applicant complains about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence.

The applicant submitted that most other life prisoners had been released having served their twenty-year sentence. In this connection he noted that while these prisoners had been released by way of commutation of their sentences by the President of the Republic under Article 53 (4) of the Constitution, for reasons unknown to him, he had been subjected to discriminatory treatment and kept in prison. Furthermore, he noted that in addition to the nine life prisoners released in 1993, another four life prisoners had been released between 1997 and 2005 on the basis of Article 53 (4). As a consequence of this discriminatory treatment, he had become the longest-serving life prisoner at the Central Prisons.

Finally, he argued that following the amendments to the relevant legislation, under section 12 (1) of the Prison Law of 1996, as a life prisoner he had been excluded from the possibility of any remission of his sentence.

The Government acknowledged that the applicant had been treated differently to the nine life prisoners who had been released in 1993 by way of commutation of their sentences by the President of the Republic under Article 53 (4) of the Constitution. However, they submitted that this difference in treatment was not contrary to Article 14 of the Convention. In particular, the applicant had not been treated differently from the nine life prisoners because of any ‘personal characteristic’ but because of the nature of the Assize Court's judgment in sentencing him. The Assize Court had expressly addressed the proper interpretation of a life sentence and the question of whether the Regulations had been unconstitutional. The other nine prisoners had all been sentenced prior to the judgment in the case of Yiouroukkis, in which these matters of interpretation of the life sentence and validity of the Regulations had first been raised. It was clear from the letters sent by the Attorney-General to the President that the nine prisoners had been released on the basis that it had been announced to them that their sentences would be twenty years' imprisonment. Contrary to the position in the applicant's case, this announcement had not previously been qualified by the remarks of the sentencing courts.

Furthermore, all the nine prisoners had nearly reached the end of the period they would have been required to serve under the Regulations when the Supreme Court gave its judgment in the case of Hadjisavvas. They had all been eligible for release under the Regulations in either 1993 or 1994 and, unlike the applicant, had served almost the whole of their sentences on the clear understanding that they would be automatically released under the Regulations. In those circumstances, the President, acting on the recommendation of the Attorney-General, decided that it was appropriate, on humanitarian grounds, to release the nine prisoners early under Article 53 (4) of the Constitution. The same considerations did not apply to the applicant's case. Therefore, the Government considered that by requiring the applicant to serve the term of life imprisonment (unconstrained by any impact of the Regulations), thereby, treating him differently from the other nine life prisoners, they had plainly pursued the legitimate penal aim of requiring the applicant to serve the full sentence imposed by the Criminal Code and the domestic courts. In this connection, the Government pointed out that the life prisoner, Mr Yiouroukkis, had been treated in exactly the same way and for exactly the same reasons as the applicant. He was therefore also still serving his life sentence.

Finally, the Government noted that since 1993 only two life prisoners had been released under Article 53 (4) of the Constitution and not four as the applicant alleged. The other two cases that the applicant referred to did not involve prisoners serving a life sentence.

The Court reiterates that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous (see, for example, Thlimmenos v. Greece[GC], no. 34369/97, § 40, ECHR 2000-IV). A measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe this Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature (see, for example, the Belgian linguistic case (merits), judgment of 23 July 1968, Series A no. 6, pp. 33–34, § 9). Accordingly, for Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see, for example, Thlimmenos, cited above, § 40, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22).

Furthermore, the Court notes that Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised by the Convention. It safeguards persons who are in analogous or relevantly similar positions against discriminatory differences in treatment that have as their basis or reason a personal characteristic (‘status’) by which persons or a group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, § 56 and Thlimmenos v. Greece, cited above, §§ 40–49).

According to the Court's case-law, a difference of treatment is discriminatory, for the purposes of Article 14 of the Convention, if it ‘has no objective and reasonable justification’. In other words, the notion of discrimination includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 39, § 82). Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest, strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention (see, among other authorities, G.M.B. and K.M. v. Switzerland (dec.), no. 36797/97, 27 September 2001). The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV, p. 1142, § 42). The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background (see Rasmussen v. Denmark, judgment of 28 November 1984, Series A no. 87, p. 15, § 40; and Inze v. Austria, judgment of 28 October 1987, Series A no. 126, p. 18, § 41), but the final decision as to observance of the Convention's requirements rests with the Court (see Willis v. the United Kingdom, no. 36042/97, § 39, ECHR 2002-IV).

In the present case the Court notes that the discriminatory treatment alleged by the applicant lies in the distinction drawn, firstly, between the applicant and other life prisoners who have been released since 1993 and, secondly, between the applicant, as a life prisoner, and other prisoners, under section 12 (1) of the Prison Law of 1996.

As regards the applicant's first complaint, the Court observes that the life prisoners referred to were all released following the commutation and remission of their sentences by the President of the Republic in the exercise of his wide prerogative and discretionary power under Article 53 (4) of the Constitution, which is applied on a case-to-case basis. In particular, the nine life prisoners who, like the applicant, had received their sentence within the period when the Prison Regulations were applicable and had been allocated a release date by the prison authorities, were not released on the basis of the Regulations or their sentence but by the President in the exercise of his discretionary Constitutional powers. Furthermore, as the Government have pointed out, in the applicant's case the Limassol Assize Court had expressly addressed the proper interpretation of a life sentence and passed a sentence of imprisonment for the remainder of the applicant's life.

In view of the above, and particularly bearing in mind the wide variety of factors taken into account in the exercise of the President's discretionary powers, such as the nature of the offence and the public's confidence in the criminal justice system (see paragraph 87 above), it cannot be said that the exercise of this discretion gives rise to an issue under Article 14.

With regard to the applicant's second complaint, the Court considers that the applicant cannot claim to be in an analogous or relevantly similar position to other prisoners who are not serving life sentences, given the nature of a life sentence.

The Court concludes, therefore, that there has not been a violation of Article 14 of the Convention in conjunction with Articles 3, 5 and 7.