EHRM, 02-09-2010, nr. 36295/02

Affirming that he was not eligible for release on licence or commutation of his sentence to a fixed term of imprisonment, the applicant submitted that life imprisonment without commutation was an irreducible sentence de facto and de jure. As to the likelihood of being granted presidential clemency, he submitted that the Vice-President had never granted clemency to anyone sentenced to life imprisonment without commutation.

The applicant maintained that he had not applied for presidential clemency for two reasons. He had allegedly attempted — but to no avail — to have the criminal proceedings reopened, in the hope that a less severe sentence would be pronounced. And in various interviews in the country's media, different Vice-Presidents had allegedly stated that they reserved their power of clemency for cases where there were humanitarian grounds — where the detainee was seriously ill, for example — or for prisoners who had committed less serious offences, and under no circumstances could a murderer hope for an act of clemency. The applicant considered that as there was no real hope of early release for him, his punishment was inhuman and degrading.

The Government did not address this issue. They did, however, submit various documents containing factual information on the exercise of the presidential power of clemency in the case of prisoners sentenced to life imprisonment without commutation, in general (paragraph 37 above) and in respect of the applicant in particular. According to the report by the Director General of Prison Administration dated 15 September 2009, the applicant had applied for presidential clemency. The prison authorities had forwarded his personal file to the Vice-President's advisory Committee, at the same time expressing the opinion that no clemency should be shown. In a letter dated 7 September 2009 (paragraph 37 above) the head of the then Vice-President's office confirmed that the applicant had applied for clemency but his application had been rejected. The letter did not state the reasons for the rejection.

The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see Labita v. Italy [GC], no. 26772/75/ § 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 is, in the nature of things, relative; it 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). Imposing a life sentence on an adult offender is not, in itself, prohibited by Article 3 or any other provision of the Convention or incompatible therewith (see, among many other authorities, 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). The Court has nevertheless found that imposing an irreducible life sentence on an adult, depriving him of any hope of release, might raise an issue under Article 3 (see, among other authorities, Nivette v. France (dec.), no. 44190/98, ECHR 2001-VII; Einhorn v. France (dec.), no. 71555/01, ECHR 2001-XI; and Stanford v. the United Kingdom (dec.), no. 73299/01, 12 December 2002).

In the light of the above-cited case-law, the Court considers that the main question in the instant case is whether the penalty imposed on the applicant may be classified as irreducible. It reiterates 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 (see Kafkaris v. Cyprus [GC], no. 21906/04, § 98, ECHR 2008-…). Thus, 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, notwithstanding the non-judicial character of the procedures to be followed, this will be sufficient to satisfy Article 3 (ibid. § 103). The Court considers that the principles set forth in the above-cited Kafkaris judgment must be applied to the instant case and that it must seek to establish whether, in spite of the fact that he is serving a life sentence without commutation, Mr Iorgov may be considered to have any chance of release.

The Court notes in this connection that the domestic law does not provide for the applicant's release on licence, a measure applicable only to prisoners serving fixed-term sentences (paragraph 31 above). Nor may the applicant hope for a court decision to commute his life sentence to a lesser term of imprisonment (paragraph 32 above).

However, the domestic law does not deprive the applicant of all hope of release or reduction of sentence. In particular, he may be granted one of the two measures of presidential clemency: either a pardon or a commutation of the sentence (paragraph 33 above). In the event of a pardon the applicant could be released immediately and unconditionally. In the event of a commutation of his sentence, even if it were only commuted to an ordinary life sentence, that would open up the possibility of judicial commutation and perhaps release on licence (paragraphs 31 and 32 above).

The Court is well aware that this is a discretionary power rather than one exercised by a judicial body, and that refusal to exercise it is not open to appeal. However, it reiterates that the main question in this case from the standpoint of Article 3 is whether there is any hope for the applicant of being released (paragraphs 49 in fine and 50 above). It notes that the possibility of an adjustment of the applicant's sentence, and of his eventual release does indeed exist in the domestic law. It follows that a life sentence without commutation is not an irreducible penalty de jure. The Court must then consider whether the penalty concerned is also reducible de facto.

The Court notes that according to the statistics in its possession the Vice-President granted clemency to 477 prisoners between 2002 and 2009. The large number of applications submitted during the same period (paragraph 36 above) shows that this is a well-known remedy widely used by prisoners. It cannot be said, in the light of these figures, that the Vice-President fails to exercise his prerogative to grant clemency when he deems it appropriate.

In his observations the applicant states that no prisoner serving a life sentence without commutation has yet been granted presidential clemency, and the information presented by the Government seems to confirm that assertion (see paragraph 37 above). The applicant concludes that there is no possibility of him being granted clemency in the future.

The Court does not accept that argument. It notes that the penalty of a life sentence without commutation was not introduced into the Criminal Code until December 1998, as a result of the abolition of the death penalty (see paragraph 13 above), a very important act for the development of domestic law and of the State's penal policy. The Bulgarian Parliament opted to introduce two types of life sentence: one with a possibility of judicial commutation to thirty years' imprisonment and one without commutation, which is considered the heaviest penalty and is reserved for crimes of exceptional gravity (see paragraph 29 above). It must be remembered that at the time of these legislative changes the applicant had been sentenced to death by the courts for exceptionally serious crimes, even if his execution had been suspended by virtue of a moratorium decreed by Parliament. In January 1999 the Vice-President used his power of clemency to commute the applicant's death penalty to a life sentence without the possibility of judicial commutation (see paragraph 13 above).

The applicant has been in prison since August 1989, that is to say, for slightly more than twenty years (see paragraph 14 above). The sentences of eighteen other prisoners sentenced to death during or just prior to the moratorium on executions were also commuted to life sentences without commutation. Forty-one more offenders have incurred the same penalty since 1998 (see paragraphs 13 and 30 above). In view of the date of introduction of the moratorium on executions (see paragraph 13 above) and the time that has elapsed between the introduction of the life sentence without commutation and the examination of the present application, the Court considers it unlikely that a large number of prisoners in this category have already spent more than twenty years in detention. The Court notes that under domestic law even an ordinary life sentence, which is considered a less severe penalty, cannot be commuted by the courts until the offender has served twenty years of his sentence — and even then only to a thirty-year sentence (see paragraph 28 in fine above). That being so, the Court considers that, while it is true that by November 2009 there had been no decision to grant clemency to any prisoner sentenced to life without commutation, that does not suffice to prove that that penalty is irreducible de facto. In the Court's view, the absence of any measures of clemency at this stage cannot give rise to the conclusion that the Bulgarian system is not functional. An examination of practical situations as they unfold in the future will be necessary to determine how applications for clemency by persons sentenced to life imprisonment without commutation are examined by the Vice-President and in what circumstances, if any, measures of clemency are granted. Since the Court is confined to reviewing the circumstances of the case, it cannot accept the applicant's claim that the system in question will not be effective. It must also be borne in mind that by the time the applicant lodged his complaint — in August 2002 — he had served only thirteen years of his life sentence, which is much less than the maximum fixed-term prison sentence provided for under domestic law (see paragraph 30 above).

The applicant further submitted that he had not applied for presidential clemency because he considered that such an application had no chance of succeeding. From the information in the case file, however, it appears that the applicant did in fact apply to the Vice-President for clemency (see paragraph 47 above). While it is true that shortcomings in the clemency procedure may be identified, such as the lack of reasons for decisions not to grant clemency (see Kafkaris, cited above, §§ 91 and 105), it nonetheless appears that the applicant's request was examined by the advisory committee and rejected on the strength of his personal file and the negative opinion formulated by the prison authorities (see paragraph 47 above).

Neither the legislation nor the authorities prevent the applicant from submitting a new application to the Vice-President. The Court notes that a variety of factors are likely to affect, one way or the other, the decision to grant the applicant a measure of clemency, such as the gravity of the crimes committed, his own perception of the facts, whether or not he expresses remorse, the time he has spent in detention and his behaviour during that time, the authorities' assessment of his ability to adjust to life outside prison and abide by the law and accepted moral standards, not to mention his physical or psychological health. It cannot speculate as to whether the applicant will one day be set free and, if so, after how many years. It is for the authorities, and particularly the Vice-President, when the time comes, to examine any new application for clemency and to decide, on the basis of the pertinent information, whether or not to reduce the applicant's sentence. In the light of the information in its possession, the Court does not consider that the applicant's allegation that he has no hope in practice of his sentence ever being reduced has been proved beyond reasonable doubt.

In conclusion, applying the criteria set forth in its Kafkaris judgment cited above, the Court considers that, as matters stand, it has not been established that the applicant has been deprived of all hope of being released from prison one day. It therefore finds that there has been no violation of Article 3 of the Convention on that account.

The applicant submitted that, combined with the severity and the non-regulatory nature of the prison regime applied in his case, and the lack of activities in prison, the poor living conditions in the quarters reserved for prisoners serving life sentences amounted to inhuman and degrading treatment. He also complained about the lack of proper medical and dental care, and argued that his allegations were corroborated by the reports on visits by the CPT to Pleven prison.

The Government disputed that submission. They relied on a report of the Director General of Prison Administration, which purportedly showed the improvements that had been made to the applicant's prison regime and how well he had been integrated into a group of ordinary prisoners. They also referred to the report drawn up by the CPT following its visit to Pleven prison in 2006 to show that the applicant was not subjected to inhuman or degrading treatment. They added that the applicant's health was regularly monitored by the prison doctors, that he had consulted outside doctors on various occasions and that he had received proper treatment for his health problems, particularly his dental problems.

Article 3 of the Convention requires the State to ensure that all prisoners are detained in conditions which are compatible with respect for their human dignity, and that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92–94, ECHR 2000-XI). After examining Mr Iorgov's previous application, the Court had found that he had been subjected to inhuman and degrading treatment, in particular because of the harshness of the prison regime and his unjustified isolation for a long period, in addition to the poor material conditions of his detention and the lack, during the moratorium imposed by the National Assembly, of clear regulations governing the status and regime of prisoners against whom death sentences had been pronounced (see the Iorgov judgment cited above, §§ 84 and 86). The present application concerns the period that followed the commutation of the applicant's death sentence into a life sentence without commutation and his transfer to Pleven prison.

The Court notes, first of all, that the prison regime imposed on the applicant after his sentence was commuted was decided by a court (paragraph 15 above) based on the provisions in force at the time. As the courts, by analogy, applied the legislative provisions aimed at prisoners serving ordinary life sentences, the Court cannot conclude that their decision was arbitrary. That decision subjected the applicant to a prison regime provided for under a domestic law which specified the arrangements for the execution of the sentence (paragraph 38 above).

The Court further notes that at the start of his detention at Pleven prison the security measures applied to the applicant effectively limited contact between him and the other prisoners, as well as his activities and his access to sanitary facilities (paragraphs 16, 19 and 20 above). However, Mr Iorgov's situation gradually but surely became more flexible, with greater freedom of movement and the possibility to engage in various activities: in 2000 he was authorised to work in his cell; in 2002 the security measures applied during the time he spent in the open air were relaxed; starting in 2003, his cell was left open all day; and in 2004 he joined a group of ordinary prisoners and was transfered to a shared cell of acceptable size in another part of the prison (paragraphs 20, 21 and 22 above). These changes gave him much easier access to the sanitary facilities and enabled him to take part in activities with the other prisoners. He participated in sporting activities (table tennis, football, volleyball) and in the organisation of different events (paragraph 23 above). In 2007 he was given a paid job keeping the cells on the third floor of the prison clean. These changes were also reported by the CPT delegations that visited the prison in 2002 and 2006 (paragraphs 41 and 42 above).

The material conditions of detention also improved: a number of changes were made in 2003 to the section of the prison reserved for prisoners serving life sentences (paragraph 21 above). And in 2004 the applicant was transferred to a shared cell in another part of the prison and has not complained about the conditions in his new cell (paragraph 61 above).

As to the medical care dispensed to the applicant, the Court notes that he suffered from back pain and contracted a skin infection. The case file shows that he received proper medical care, including in hospital, and that he himself admitted that he had had no further health problems after his transfer to a shared cell (paragraph 26 above, in fine). Furthermore, he regularly consulted the prison dentist, and the information communicated to the Court does not indicate that the treatment dispensed was ineffective (paragraphs 25 to 27 above).

In conclusion, in view of the gradual improvement of the applicant's conditions of detention and prison regime and in the light of the information in its possession concerning the medical care dispensed to the applicant in Pleven prison, the Court considers that Mr Iorgov was not subjected to inhuman or degrading treatment there. There has therefore been no violation of Article 3 of the Convention in this respect.