Perspective Chapter: Lifers before the European Court of Human Rights

Abstract

In the chapter, we discuss the current policy of toughening sentences in Poland against the standards of dealing with prisoners, especially those sentenced to life imprisonment. However, the similar tendention is observed in other European countries. Policy regarding prisoner’s treatment should be related to human rights standards. Showing the universality of the international community’s approach as expressed in the recommendations of the Council of Europe gives a new contribution to the knowledge of the development of human rights even in relation to life prisoners. We present a unique study of 241 cases of life-sentenced prisoners that the European Court of Human Rights (ECtHR) decided between 1962 and 2019. This new knowledge concerns the following aspects: a statistical analysis of the problems that the complainants raised before the ECtHR and that, for the most part, constituted violations of the ECHR, the identification of specific problems due to the length of the sentence, the determination of whether the ECtHR applies a double standard due to the diversity of the respondent states, the evolution of the Court’s case law on the complaints of the life prisoners. It turns out that for lifers alone, the ECtHR ‘created’ two new rights.

1. Introduction

A sentence of life imprisonment is an exceptional punishment in terms of its length and the severity of its conditions of execution. It places an indefinite obligation on the prison system to make an impact—not just to meet basic human needs but also to offer a meaningful and concrete offer of rehabilitation in the form of programmes, therapies and activities that rehabilitate and integrate the offender. In the light of contemporary standards and court jurisprudence, the prison system is meant to be a system of opportunity for rehabilitation, a system of creating opportunities for responsible life in prison and free society. An analysis of the current approach of the Polish authorities, as well as the authorities of other countries, proves that ‘opportunity’ in the case of prisoners of this most severe punishment is still an abstract value.

Although it is too early to categorically assess the future¹, contrary to the official goals and values of the justice system, the jurisprudence and execution of life imprisonment in Poland confirms its eliminative nature from life in a free society:

Life imprisonment and 25 years’ imprisonment fulfil the function of safeguarding law and order by eliminating a particularly dangerous offender from society. In the case of life imprisonment, the preference for the re-adaptive purpose gives way to the function of safeguarding society [1, 2].

Life imprisonment—for the wicked and incorrigible—fulfils alternative functions to the death penalty, that is, elimination, justice, isolation, and retribution—such are not only social expectations, but also the requirements of modern criminal policy [3].

Elimination manifests itself in the necessity for the offender to remain in isolation for at least a quarter of a century and the complete ban on parole advocated by politicians, which introduces the absolute sentence of life imprisonment into the catalogue of punishments. The dispute over the parole of prisoners sentenced to life imprisonment has a long history and provides evidence that from an indefinite sentence, its opponents want to make a fixed-term sentence [4]. And proponents of its absolute nature subscribe to the notion that, by its very nature, it is the negation of corrective influence and is more in the nature of a protective measure that society is supposed to accept [5, 6].

However, this is not the European point of view. The Council of Europe (CoE) defines the common denominator of penal policies of state parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1960. The CoE postulates the corrective and integrative purpose of imprisonment and emphasises the rehabilitation of the offender, the consequence of which is to return him to society.

In June 2019, the Polish Parliament proposed an amendment to the Penal Code (PC), making a radical change parole (Article 77 §3 and 4 PC). When imposing life imprisonment, the court could impose a ban on parole when the offender, after a final sentence for another crime to life imprisonment or imprisonment for a term of not less than 20 years, has committed another crime, as well as if the nature and circumstances of the act and the personal characteristics of the offender indicate that his/her remaining at liberty would cause a permanent danger to the life, health, freedom or sexual freedom of others.

The Polish legislature has therefore proposed a law contrary to Art. 3 ECHR. It granted the court the power to decide whether to prohibit a life sentence inmate from applying for parole. Contrary to the sanctioned right to hope, it deprived life prisoners of this right and thus precluded their rehabilitation, progression and return to life in a free society. In defending the irreducibility of life imprisonment, the Sejm explained that the parole ban should apply to the most dangerous offenders, in whose case both considerations of justice and prevention argue for not making any modifications to the sentence at the stage of execution. The current 25-year period is too short in relation to the presumed eliminative nature of this punishment; in fact, it may reduce its execution to the period of the longest term sentence imposed. For this reason, it is necessary to increase the period of time served essential to apply for parole to 35 years.

The amendment bill was not passed, but in March 2022, the idea of an absolute life sentence returned. The Ministry of Justice has prepared a draconian reform of the Penal Code. The bill calls for a maximum sentence of 30 years in prison and an absolute life sentence because ‘the most dangerous thugs need to be isolated from society. Here the state must show an iron hand’ [7].

The legislature assumed in advance that any positive change in a life sentence inmate’s behaviour would never occur, and even if it did, it would remain irrelevant to his fate. The proposed regulations are in fact a hidden death penalty, which is unacceptable in civilised countries that respect the values of the ECHR.

Similarly, under the standards for prisoner treatment, a prisoner sentenced to life imprisonment should know after what period of time he or she will be able to seek court review of the need to continue to serve the sentence. After all, a possible scenario is that he or she will improve and rehabilitate him- or herself, that he or she will cease to threaten such goods as health, life and the legal order. The lack of even a chance for the court to review this scenario leads to a violation of Art. 3 ECHR. The Strasbourg Court emphasised this in the following judgements:

• Vinter & others v United Kingdom, Applications No 66069/09, 130/10, 3896/10, Merits and Just Satisfaction, 9 July 2013,

• Öcalan v Turkey (No 2), Applications No 24069/03, 197/04, 6201/06, 10,464/07, Merits and Just Satisfaction, 18 March 2014,

• Laszló Magyar v. Hungary, Application No 73593/10, Merits and Just Satisfaction, 20 May 2014,

• Harakchiev and Tolumov v Bulgaria, Applications No 15018/11, 61,199/12, Merits and Just Satisfaction, 8 July 2014,

• Trabelsi v Belgium, Application No 140/10 Merits and Just Satisfaction, 4 September 2014,

• Manolov v Bulgaria, Application No 23810/05, Merits and Just Satisfaction, 4 November 2014,

• Bodein v France, Application No 40014/1014, Merits and Just Satisfaction, 13 November 2014,

• Kaytan v Turkey, Application No 27422, Merits and Just Satisfaction, 15 September 2015,

• Murray v Netherlands, Application No 10511/10, Merits and Just Satisfaction, 26 April 2016,

• T.P. and A.T. v Hungary, Application No. 37871/14, Merits and Just Satisfaction, 4 October 2016,

• Matiošaitis and others v Lithuania, Applications No. 22662/13, 51,059/13, 58,823/13, 59,692/13, 59,700/13,60,115/13, 69,425/13, 72,824/13, Merits and Just Satisfaction, May 23, 2017,

• Petukhov v Ukraine (no. 2), Application No. 41216/1315, Merits and Just Satisfaction, March 12, 2019,

• Marcello Viola v Italy (no 2), Application No 77633/16, Merits and Just Satisfaction 13 June 2019.

Life imprisonment without the right to parole is a cruel punishment because of human nature, which includes the potential for change and the hope that the offender will be freed from the burden of punishment, though not from the burden of guilt. Absolute life imprisonment, isolating the perpetrator for the rest of their life, removes any hope that they will ever be able to redeem their guilt and improve themselves so as to go free. The sole purpose of a punishment shaped in this way is to isolate the offender from society for the rest of his life, and in this sense, it ceases to be a punishment and becomes merely a means of social defence against the disease of crime [8, 9, 10, 11]. Thus, it repeats the mistakes of the justice system of the last century. The Polish legislator explained that the criminal law is intended to satisfy the social sense of security and justice, and in order to achieve these goals, it is necessary to appropriately shape the type and amount of criminal sanction threatening a given type of crime, taking into account the need for severe repression against the perpetrators of those acts that arouse a strong social need for retribution and stigmatisation.

In a further argument, the legislature admitted to ‘increasing criminal repression’ and ‘increasing the degree of punitiveness’—but did not explain how this hyper-repression would affect crime prevention and did not support its claims with the results of scientific research, which for several years have demonstrated a decrease in crime against life and health in Poland.

The proposed amendment increased the period of sentence that must be served for a convicted person to file a first application for parole, from 25 to 35 years, (Article 78 §3 of the Penal Code) and the period of probation, from 10 years to life (Article 80 §3 of the Penal Code). Thus, the amendment to the law tightened the criminal sanction and shifted the administration of justice from the judges to the legislature, which thus shapes not only criminal policy but also specific decisions in specific cases. This regulation raises doubts as to its compliance with the principle of legal certainty and security and the protection of confidence in the state and the law and the principle of the separation of powers as expressed in the Polish Constitution.

The Polish Senate proved to be rational, providing for the possibility of granting lifetime prisoners parole, introducing the optionality of absolute life imprisonment and passes during the sentence with the consent of the judge and with mandatory electronic monitoring of the place of stay.

Many groups, including the Citizen’s Rights Ombudsman, have expressed negative opinions about the draft amendments to the Penal Code. The office received 22 oppositional opinions prepared by national and international human rights bodies and organisations, academia and legislative experts.

The public outcry thus expressed and the ECtHR’s rulings, which clearly enunciate the right of life-term prisoners to hope, are proof that the harshest custodial sentence continues to be controversial and verifies the rule of law of the state and its policies towards the perpetrators of the most serious crimes.

It raises questions about the real—rather than declared—purpose of imprisonment and the effectiveness of the prison service in achieving it. It reminds us of the infamous temptation of total and crushing state power over the perpetrator of a crime. It places at the centre not so much ideals as rationality, common sense and the findings of science, which argue that a convicted man has the potential to change and that his actions are not sufficient evidence of who he is.

Despite the fact that the crimes committed by those sentenced to life imprisonment must carry the highest penalty—not least because of the time they need to make attempts at rehabilitation and improvement—despite the destruction and harm they have caused, and despite the shadow of the victims and their families who are ‘ordered by law to remain silent’ during the penalty phase, absolute, life imprisonment is an excess of legislative power not only against the convicts themselves but also against the courts and the prison service, for it contradicts the well-established principles of their work: independence, individualisation, resocialisation and rehabilitation.

The amendment was also indifferent to scientific facts—the results of research on long-term imprisonment. The results of Polish research indicate that paroled murder convicts commit crimes less frequently than perpetrators of other crimes (recidivism rates range from 7 to 12%) [12], while most lifelong prisoners adapt positively to the conditions and expectations of prison life, stabilise their behaviour and develop socially desirable attitudes [13]. Results from overseas studies support these findings. Long-term incarceration socialises [14, 15]; interrupts the constant dangers and anguish of life on the streets; captures rehabilitation in personal terms of introspection, emotional development and perseverance [16]; provides opportunities for self-improvement through education, work and programmes [17] and leads to the formation of a new identity and, through that, change for the better [18]. Research shows that most long-term inmates do not pose a particular security risk [19]. Their risk of reoffending decreases with age, in part because they undergo significant personality change in isolation [20]. Long-term incarceration is a turning point in their lives that allows them to give up their criminal lifestyle [21, 22]. During the probation period, paroled convicts positively adapt to the conditions of free life [23].

The project of increasing the threshold for applying for conditional release has not been finally adopted. However, last year’s amendment to the Executive Penal Code shows that the Polish authorities effectively seek to deprive life prisoners of this chance. The amendment to the regulations has led to the extension of the period after which life sentence convicts will be able to continue serving their sentence in lighter-security prisons (in the case of transfer to a semi-open prison, from 15 to 20 years, and in the case of transfer to an open prison, from 20 to 25 years). The extension of the period was dictated by the implementation of the statutory obligation to ensure security.

In the chapter, we discuss the current policy of toughening sentences in Poland, especially referring to lifers, which policy is an example of penal populism. Following this, we discuss the universality of the international community’s approach expressed in the recommendations of the Council of Europe and the United Nations papers. Finally, we present a unique study of 241 cases of life-sentenced prisoners that the ECtHR decided between 1962 and 2019 in the following aspects: (1) statistical analysis of the problems revealed in the complainants raised before the ECtHR, (2) the identification of specific problems due to the length of the sentence, (3) a double standard of the ECtHR due to the diversity of the respondent states (west-east Europe) and (4) the evolution of the Court’s case law on the complaints of the life prisoners. To conclude, it turns out that for lifers alone, the European Court of Human Rights (ECtHR) ‘created’ two new rights: the right to hope and the right to rehabilitation, and it is more challenging for the correctional system to enforce a life sentence than a term sentence (with real possibility to be freed).

2. International benchmark

The ECtHR is rational—it does not deny the existence of this harshest penalty and concludes that it does not become an unabridged penalty simply because it can in practice be served in full. So, it assumes that some of those sentenced to it will die in prison. All that is demanded—because of the potential for good in a person and the state’s respect for that fact—is the prospect of release enshrined in law and the opportunity to review the reasonableness and length of isolation, to assess the changes in the convict’s life and his progress in rehabilitation. The latter is the essence and duty of the European prison system.

Generally applicable international law does not contain regulations concerning the category of prisoners in question nor does it specify long-, medium- or short-term sentences. The laws that apply to life and long-term prisoners are written in soft law, also called standards, rules and guidelines. We present 13 such documents in chronological order.

2.1 CoE resolution (70) 1 practical organisation of supervision and care measures for conditionally sentenced or paroled offenders of 26 January 1970

In Rule 2(b), the Resolution recommends that states ensure the applicability of parole by making periodic assessments of the circumstances of life-sentence prisoners, or at least provide for the possibility of applying the right of clemency to them, after examining their personal characteristics and taking into account the need to protect society [24].

2.2 CoE resolution (76) 2 on the treatment of long-term prisoners adopted by the Committee of Ministers on 14 February 1976

In two rules, the Resolution recommends that the same principles that apply to long-term sentences (Rule 11) be adapted to life sentences and that each case of a life prisoner be reviewed (considered) to determine whether he or she can be granted parole after 8 years, or at most 14 years, of imprisonment. Such review is to be repeated at regular intervals (Rule 12 in conjunction with Rule 9).

2.3 United Nations standard minimum rules for the treatment of prisoners, December 10, 1984

This document considers the length of the sentence in three rules, 65, 66 and 69, dealing with the purpose of imprisonment and the modelling of impact measures to be appropriate to the length of the sentence and post-release prospects. It also makes the quality and quantity of information collected about the prisoner and the development of an individualised programme for dealing with the prisoner dependent on the length of the sentence. The rules make clear the need to recognise the prisoner—his or her personality and physical and mental health, lifeline and criminal career, individual needs, abilities and aptitudes. These rules are reiterated in the 1987 European Prison Rules and the revised 2015 UN Minimum Rules (Mandela Rules).

Noteworthy is the rational approach to the purpose of the execution of the sentence—if the length of the sentence allows, the purpose is to form in the convicted person the will and ability to lead a life that is lawful and provides him with a means of livelihood upon release.

2.4 European prison rules (recommendation No. R (87) 3 to the member states of the Council of Europe adopted by its Committee of Ministers on 12 February 1987)

The European Prison Rules emphasise that the length of the sentence is relevant to the reality of the purpose of the sentence, the classification of the prisoner (Rules 3 and 10(1)), the disposition (Rule 11(1)) and the offering of appropriate measures of influence (Rule 68).

2.5 XI CPT general report of September 3, 2001

In the Report in question and ultimately in the 2015 Report, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) formulated standards for the treatment of life and long-term prisoners as it noted an increase in this category of prisoners in the prison population [25]. Previously, it had incidentally drawn attention to the problems associated with the execution of a long-term sentence.

In the report, it is stressed that the very fact of long-term imprisonment makes the situation of these prisoners more difficult than that of others. Long-term incarceration affects the prisoner’s assessment of physical conditions, inmate activities and interpersonal opportunities. The differences identified by the CPT relate to the specific restrictions automatically applied to lifers: segregation from the rest of the prison population, being handcuffed while out of cell, being prohibited from communicating with other prisoners and limiting the number of visits they are entitled to. These restrictions compound the harmful effects of long-term incarceration. The long time spent in isolation alienates socially and causes desocialising effects. Inmates acquire the characteristics of a total institution such as prison and assimilate its values and customs essential to the continuance of the prison community—possibly experiencing psychological problems such as loss of self-esteem, loss of social skills and exhibiting tendencies towards increasing detachment from the rest of society to which most will eventually return. Therefore, the treatment of this category of prisoners should actively offset these harmful effects.

In formulating guidelines for dealing with life prisoners and shaping the conditions of their life in isolation, the CPT emphasised the principle of standardisation, as formulated in the 2003 Recommendation on the Management of Long-Term and Life sentences. The conditions of life in prison should, as much as possible, be similar to the conditions of life in freedom. It is also necessary to make sense of the time spent in isolation—convicts should be able to make meaningful use of the time spent in prison and have the opportunity to study and work, play sports and develop interests and pro-social behaviour. The opportunity for convicts to use their positive sides and their potential and to implement themselves in a normal life is essential for a sense of autonomy and personal responsibility and, consequently, to give up crime.

The CPT believes that if the goal of life imprisonment is to return the convict to society, it will not do so without assistance from the prison system. In order for a prisoner to cope with long-term incarceration and prepare to leave prison in his or her own time, the system should help him or her develop an individualised custody plan and offer appropriate psychosocial support. The final element of a well-organised and effective system mentioned in the report is to allow life prisoners to maintain contact with the outside world.

2.6 CoE recommendation (2003) 22 on parole of 24 September 2003

Chronologically, this document is prior to the Recommendation on the Execution of Life Imprisonment and Other Long-Term Prison Sentences, which is why the preamble refers to Resolution (76) 2 on the Treatment of Prisoners on Long-Term Prison Sentences. In fact, only one rule explicitly incorporates life imprisonment (Rule 4a), emphasising that the law should ensure that all convicted prisoners, including those facing the harshest sentence, have the opportunity to benefit from parole.

Life inmates should not be denied the hope of parole for two reasons. First, no one can reasonably claim that they will all pose a threat to society for the rest of their lives. Second, the incarceration of inmates who have no hope of parole leads to serious problems in the management and execution of this sentence—it is difficult to motivate or encourage these inmates to cooperate and participate in programmes aimed at changing their destructive behaviour or personal development programmes or organising sentence plans and security. Each state’s law should create opportunities for life sentence review after several years, at regular intervals, to determine whether the lifer can serve the remainder of his or her sentence in the community and, if so, under what conditions and what supervision measures should be used. This rationale will be repeated in subsequent international standards. It is about ensuring the consistency of the decision-making process—which is problematic in the light of the ECtHR’s findings and guidelines, as they are sometimes arbitrary, too discretionary and unclear.

We find further references to life imprisonment in the Explanatory Report. The authors of the Recommendation note that there are two systems of parole—automatic and discretionary. Rule 7 of the Recommendation and the commentary thereon point to the economics of an automated system, the application of which, however, may be limited in the case of life imprisonment. In view of this, a combination of parole systems is possible depending on the length of the sentence. There are countries that use a discretionary system for life prisoners, as opposed to term sentences. The basis for adopting a mixed release system is the need to assess the readiness of this category of prisoners for release in terms of the risk they may pose to society.

The Explanatory Report refers to life prisoners, commenting on Rule 10 governing the conditions or measures of supervision in the case of parole, which should be imposed for a term reasonably proportionate to the unexpired portion of the sentence. The duration of supervision measures should be proportional to the portion of the sentence not served in isolation. This is the case with life prisoners whose period of supervision can last for the rest of their lives, provided that it is necessary for the protection of society and that the existence of this need is regularly reviewed. The Recommendation also sets out the conditions for discretionary parole (Rule 5, 16–21). Primarily, state law should provide clear and clearly defined criteria that an inmate must meet in order to be eligible for parole. These criteria are to take into account the inmate’s personality traits, social and economic circumstances and the availability of programmes to return to life in society.

2.7 Recommendation (2003) 23 on the execution of life imprisonment and other long terms of imprisonment by prison administrations 9 October 2003

According to the preamble of the Recommendation, the execution of a sentence of imprisonment requires a balance between the objectives of ensuring security, order and discipline and providing prisoners with decent living conditions, including opportunities for constructive spending of time and preparing them for release.

The Council of Europe recognises that the essence of long-term punishment is linked to the need for security in no other way than through isolation. This long-term isolation, however, is neither about retaliation nor about satisfying a sense of justice, or about exclusion or elimination. Its purpose is to prepare for release, as provided by the previously discussed standards for imprisonment per se, regardless of length.

Deprivation of liberty is not limited to its function of isolating and preventing the commission of crimes. Respect for human dignity requires that punishment perform the following functions: corrective, resocialising and rehabilitative.

2.8 European prison rules of January 11, 2006

Confirming the value and usefulness of a ‘sentencing plan’ is the only rule in the modernised EPRs that addresses life and long-term prisoners, recommending that appropriate plans and conducive sentencing systems be provided (Rule 103(8)).

The EPR Explanatory Report makes no reference to this category of prisoners. The commentary to Rule 103 explains that involving the prisoner in planning his or her ‘career in prison’ is the starting point and allows the prisoner to make the most use of the infrastructure and programmes offered by the system. Plans are an integral part of the penalty, except for very short penalties. Rule 103 further refers to the 2003 Recommendation on the Management of life imprisonment and Long-Term Penalties.

2.9 Actual/real life sentences Jørgen Worsaae Rasmussen, memorandum of 27 June 2007

In his Memorandum, the author analyses the various approaches to life imprisonment in CoE states, especially with regard to the length of implementation—actual or legal, which depends on the gravity of the crime committed or the type of life imprisonment. He notes that life imprisonment is a legacy of the death penalty in terms of both severity and conditions of isolation, as it implies social isolation, segregation and a very restrictive regime.

From a comparative perspective, the author aptly notes that life imprisonment is a ‘choice in penal policy’, and the manner in which that choice is implemented has far-reaching implications for the number and percentage of life prisoners in prison and the manner in which they are to be treated [26].

The legislation and practice of European countries show that life imprisonment does not necessarily mean deprivation of liberty for the rest of the natural life of convicts. Under international law, ‘lifelong’ measures of freedom, such as indefinite surveillance, are possible. Even a potentially dangerous offender can be released and placed under supervision for the rest of their life in the community. ‘Lifetime’ supervision can be permanent or intermittent. This option stems from the premise that prisoners sentenced to life imprisonment should not automatically be considered a permanent threat to the community once and for all and be denied the hope of being granted parole—its possibility should be available to all prisoners, including lifers [26]. This is the first international document and the first author to talk about the right to hope.

The author relates that all states that have enacted life imprisonment provide a mechanism for presidential pardon or release on personal grounds (compassionate reasons) or upon recommendation of the parole board or court. Providing only a pardon is not sufficient, however, because the president’s decisions—preceded by the opinion of the government, the court or the relevant minister—are coloured by political positions. The decision is unpredictable and based on changing criteria, depending on the ruling parties and power interests. As Rasmussen aptly notes: ‘[t]he question arises to what extent it is compatible with the European Convention on Human Rights for the executive, rather than the court, to decide a parole case’.²

2.10 Short overview on life sentences Mauro Palma document dated March 4, 2008 (CPT (2008) 26)

The document was authored by the Committee for the Prevention of Torture (CPT) president from 2007 to 2011. He presented the legal status of life imprisonment in CoE countries in 2008. Analysis of the document allows us to conclude that the regulations, although different in each country, do not differ significantly in their essence. The author of the study highlighted in which states the law does not provide clarity on the actual length of this penalty and the possibility of reducing it. This is a fundamental problem from a criminal policy and human rights perspective. Until March 2008, the ECHR has not had occasion to comment on the humanitarianism of life imprisonment, with the exception of the case of Kafkaris v. Cyprus. In this case, it found that there was a violation of Art. 7 of the Convention in relation to the quality of the law-governing life prisoners in Cyprus.

In his study, Palma classifies countries into two groups: those whose laws do not provide for life imprisonment but for long sentences of 20 to 40 years and those that provide for imprisonment with the possibility of parole after many years of imprisonment.

2.11 XXI CPT general report of 10/11/2011

After another 10 years of monitoring prisons, the CPT again recommended ‘improving the regime of prisoners placed in long-term solitary confinement who require special attention to minimise the harm this measure may cause them’ [27]. It emphasised that these prisoners should not be subjected to additional restrictions unless necessary for their safety and proper confinement and that any restriction should be applied only when appropriate given the estimated risk to the prisoner’s individual safety.

The Committee also flagged the problem of prolonged imprisonment of terminally and seriously ill prisoners. Their incarceration in solitary confinement may create an intolerable situation for them, and then, an alternative means of liberty must be considered.

2.12 UN model minimum rules for the treatment of prisoners (Mandela rules), 7/10/2015

The rules repeat provisions from the 1984 Model Minimum Rules for the Treatment of Prisoners. They relate to the length of the sentence, the purpose of the treatment of prisoners (Rule 91), the measures to be applied in accordance with the individual needs of each prisoner (Rule 92) and the programme for dealing with them in the light of the knowledge obtained of his individual needs, abilities and inclinations (Rule 94).

2.13 XXV CPT general report dated 1.04.2016, situation of life-sentenced prisoners

In the 2015 activity report, the CPT isolates and expands standards for the treatment of life prisoners. It explains what conditional life imprisonment is and how it is thought of in European societies. Historically, this punishment has been linked to the abolition of the death penalty—it is the natural cost of abolishing the latter. Thus, it is considered a humane and more lenient punishment, unlike in the past, where life imprisonment meant a lifetime of gruelling labour and a life of almost complete isolation, in civilian death. Today, ‘life imprisonment’ is an indeterminate sentence and lasts either for the natural life of the convict or until he is released after it is determined that he is not a danger to society. The decision to release is discretionary. The court or quasi-judicial body takes it up after the minimum period of sentence served as required by law. For example, in Western European countries, such as Denmark, Austria, Belgium, Germany and Switzerland, it is 12 or 15 years and 20 or 25 years in most other countries. Turkey stands out in terms of the length—40 years.

Many states have failed to develop a system designed for life prisoners, tailored to their individual circumstances; rather they have all been deemed ‘dangerous’ and in need of strict control [28]. The automaticity of this approach is a mistake, as over time, life prisoners will be able to apply for parole. Meanwhile, failure to prepare for release or plan for reintegration could seriously impair their ability to function in the outside world.

There are also states that do not set any minimum period and consequently do not have a parole system. Lifers may apply for a pardon or release for personal reasons (such as illness). Under such a system, in practice, life imprisonment means absolute life imprisonment, as there is little chance and little likelihood of regaining freedom despite progress in rehabilitation. It is a natural requirement that the prison system created by the state provides lifelong inmates with conditions and regimes that serve both to preserve their humanity and to prepare them for release. Authorities are to develop practices to maintain respect for prisoners’ rights during their indefinite time in isolation. This indeterminacy or uncertainty about the future and isolation, in fact, creates special psychological pressures. This primarily involves individual assessment during the sentence; enabling and supporting contact with family, society and humanitarian organisations and offering them work and study, targeted to complement their individual needs and deficits.

The observations that the CPT made in the Report, which it believed distinguished the treatment of life prisoners from the prison population, were:

1. inadequate material conditions and segregation of prisoners (separation from other prisoners);

2. a very impoverished regime, limited to confinement in a cell for most of the day;

3. failure to provide meaningful activities for lifers;

4. failure to provide sufficient human contact;

5. special restrictions and draconian security measures, which by their very nature exacerbate the harmful effects of prolonged incarceration.

The fundamental problem, however, is absolute ‘life imprisonment’, that is, the lack of a realistic prospect of release, whether by legal or factual conditions, which the Committee criticised. The approach that a man sentenced to life imprisonment once and for all is considered dangerous (a threat to society) is questionable. A sentence of imprisonment that offers no possibility of release excludes one of the fundamental justifications for imprisonment itself, namely, the possibility of rehabilitation; the exclusion from the outset of any hope of rehabilitation and return of the convict to the community effectively dehumanises the convict. It removes the hope of parole based on the convict’s change and positive prognosis.

Absolute life imprisonment—depriving a person of the chance to regain his freedom—is incompatible with human dignity and therefore contrary to Art. 3 of the Convention. Therefore, three main conclusions can be drawn from the ECtHR case law. Member states’ legislation at the appropriate time of serving the sentence must provide ‘the opportunity to review (revise, evaluate) the sentence. It must establish its procedure, and the prison isolation itself must be arranged in such a way as to enable the prisoners to progress in their rehabilitation’ [28].

The CPT gives guidance on what specifically to do for a state to meet these three conditions. It is therefore necessary to individualise the execution of the life imprisonment through the sentence plan created based on an assessment of the prisoner’s situation and provide at some stage of the sentence for a review of the sentence against the individual goals set out at the beginning of the isolation in the sentence plan, and the review is to take place at regular intervals.

Then, it is necessary to give the prisoner a date for the first evaluation in the context of parole and develop a tailored individual programme, as appropriate, that provides a realistic prospect of improvement and early release. The prison officers should use accredited risk and needs assessment tools, supplemented by expert opinion. These analyses and the individual plan should be developed with the prisoner and then made available to him.

Candidates for absolute life imprisonment behind bars exist. However, the implementation of this punishment raises reasonable doubts—as to its course and its effectiveness on those promising and susceptible. Questionable aspects of performing life imprisonment are revealed by aforementioned soft law documents, written by the hands of experts, practitioners, prison officers, psychologists and judges, as well as empirical and practical experiences described by researchers. Continued doubt arises concerning:

1. the side effects of long-term isolation, such as uncertainty about one’s situation and prospects, prisonisation and the psychological consequences of long-term isolation [29, 30];

2. the difficult situation of imprisonment, rationing of needs and permanent dependence on the decisions of one’s superiors; strict limitations on autonomy and manifestations of personal, family and social life that deviate from normality [30];

3. the sentence plan and prison system offerings to be offered for a minimum of a quarter century. The CPT audit and the research literature [31, 32, 33, 34, 35] demonstrate that the prison regime remain poor, monotonous and focused on isolation and control, and

4. prison regime continues to deprivation of life perspective, the right to self-improvement and the right to a future, despite the passage of time and improvement [36].

3. Summary

The international documents we have analysed state that the ultimate goal of the execution of life imprisonment is the return of the convicted person to a life of freedom. Achieving this goal is not possible without certain conditions being met by both parties—the state and the convict. According to Recommendation (2003) 23, the ultimate goal of incarceration is to ‘expand and improve opportunities for inmates to successfully re-enter society and lead law-abiding lives upon release’. Achieving this goal involves keeping the public safe. It is not enough to isolate for prison punishment to be effective. You have to invest in it. The standards emphasise the importance of rehabilitation, which is the focus of European penal policy—the common denominator of the penitentiary policies of European countries [37].

The axiology articulated in soft law and the jurisprudence of international bodies obliges us to look at life imprisonment from the perspective of a decent and rational state that respects human dignity and its fundamental rights and freedoms. The manner in which the state and society treat an offender of aggravated murder sentenced to life imprisonment is a test of civilisation for both entities [38, 39, 40].

Regardless of the prisoner’s act or personal characteristics, a civilised prison should be geared towards maintaining the prisoner’s hope for change. The prison system should look out for his deficits and needs and support his efforts to rehabilitate and choose a life free of crime. Only by doing so will the principle of humane treatment be respected and the public’s safety guaranteed.

Therefore, all soft law documents refer to the corrective purpose of life imprisonment; the guiding principles of conduct, the most frequently cited of which is the principle of individualisation, normalisation and progression and the methods and means of conduct, that is, the use of both adequate protective measures and rehabilitative interventions. The most essential tool for working with a life prisoner, and the tool for implementing the principles and purpose of sentence enforcement, is the sentence plan.

From an analysis of international standards, there is a correlation between security and respect for the human rights of the life prisoner, expressed not only in the right to hope but also in the right to rehabilitation [41, 42] and to the concrete offer of a restorative prison system. Providing opportunities during the execution of this sentence (at least for 25 years) for improvement and rehabilitation, for personal and social strengthening and for the development of a realistic chance to strive for parole, means respecting the fundamental rights of those sentenced to life imprisonment and ensuring the safety of society.

4. Analysis of 241 cases of those sentenced to life imprisonment suing before the ECtHR

4.1 Research aims, objectives and methodologies

The purposes of the research were: (1) a statistical analysis of the problems that the complainants-condemned prisoners raised before the ECtHR and which, for the most part, constituted violations of the ECHR, (2) the identification of specific problems due to the length of the sentence, (3) the determination of whether the ECtHR applies a double standard due to the diversity of the respondent states—their level of democratisation and the persistence of the tradition of respect for fundamental rights and (4) the analysis of the evolution of the Court’s case law on the complaints of the life prisoners.

We assumed that some of the problems that convicts sentenced to life imprisonment signal in their complaints to the ECtHR are different from those of other complainants. The research goal was to capture this distinctiveness and qualitatively different matters.

We assumed that the peculiarities of the adjudication and execution of this extreme punishment are expressed in its purpose, in the conditions of imprisonment and in the regime applied, while the perpetrators sentenced to it will take them into account in their complaints to the ECtHR and thus accentuate what is common to them, what they experience regardless of which state they are suing.

We assumed that it would also be valuable to track the cases of complainant life prisoners who report problems independent of the life sentence, primarily procedural failures during their sentencing process. However, we have given priority to the remaining research objectives, which focus on the specifics of this extreme punishment, especially in relation to the rise of political punitiveness in Poland and the world [43, 44, 45, 46]. Complaints that are directly related to the length of punishment and the manner in which it is carried out will be qualitatively different and perhaps reveal new systemic problems faced by plaintiffs and state authorities.

We used a subject criterion to select cases: we assumed that plaintiffs in the country of origin are perpetrators of serious crimes with the highest social and economic costs, that they most burden society and the justice system. The subject criterion allowed the assumption that among the cases brought by the plaintiffs, there would be the same ones initiated by other plaintiffs regardless of the sentence and therefore that the research material would show that life prisoners share with others the systemic failures of the justice system and the problems associated with them, that up to a certain stage of their imprisonment, they experience the same discomforts as the rest of the prison community in that they are housed in similar or the same prison units, are users of the same facilities, are potential participants in the same rehabilitation offerings and are subject to the same restrictions and prohibitions as others. At the same time, we assumed that the study group was unique in terms of the punishment and all that its execution carries in an uncertain time frame. Therefore, there will be other qualitative problems that they point out in their complaints to the Court. This aspect of the research will be most interesting and will add new value to the knowledge of life prisoners and the punishment they experience.

Adopting the subject criterion meant that we examined cases of plaintiffs before the ECtHR who had been sentenced to life imprisonment by at least a court of first instance, cases that ended in a judgement or a decision or settlement between 1962 (the first case) and the end of 2019, against all states that have recognised the Court’s cognisance. After setting appropriate filters in the HUDOC database, we quantitatively and qualitatively analysed 241 cases. Most of the plaintiffs had been finally sentenced to life imprisonment, including after commutation of the death penalty (23) or when they faced life imprisonment if extradited (19). In 27 cases, the sentence was changed in the second instance (acquitted, sentenced to a lower punishment, released from custody).

In the cases analysed, the parties were countries that varied in their entrenchment of democracy and human rights. Therefore, we divided them into four groups:

1. Western Europe (Austria, Belgium, France, Germany, Ireland, Italy, Netherlands, Norway, Spain, United Kingdom);

2. Central Europe and the Balkans (Bulgaria, Cyprus, Greece, Hungary, Poland, Romania, Slovakia);

3. Eastern Europe (Estonia, Latvia, Lithuania, Moldova, Russia, Ukraine);

4. ‘Asian’ Europe, different in culture and civilisation (Albania, Armenia, Azerbaijan, Turkey).

We divided the countries into groups to examine whether there is a common denominator in their approach to extreme punishment and, if so, in what it is expressed and whether the ECtHR is aware of it when arguing its decisions.

Taking into account the objectives of the analysis, the research questions were: (1) allegations of violations of the provisions of the Convention, (2) the chronology of their communication according to a specific state or a specific group of states from the four above, (3) the number and frequency of violations of specific provisions and (4) violations that are justified by life imprisonment (specific problems).

Statistical and qualitative analysis of the research material—241 cases of plaintiffs sentenced to life imprisonment—provided answers to the questions:

1. Which states led the way in terms of the number of cases filed by plaintiffs?

2. What did the violations consist of and which articles of the Convention were most frequently affected?

3. Which state led the way in violating a specific article?

4. What was the growth of plaintiffs’ cases over the 57 years covered by the analysis?

5. What new problems has the ECtHR identified because of the size of the penalty?

A more extensive statistical analysis—although edited differently, emphasising other problems and considering a shorter period, the years 1962–2017—was included in the published monograph [47].

4.2 Statistical findings

The plaintiffs—the authors of all complaints, including the joint ones—numbered 294, of which life prisoner plaintiffs were 281. In 17 cases, the life plaintiffs were members of organised criminal groups, while in 54, they committed crimes of a terrorist or political nature, in most cases, as part of separatist political organisations, usually of an armed nature, to which they belonged.

Table 1 shows that Turkey had the most cases, followed by the United Kingdom and three countries in Groups II and III, which is significant because the first two countries joined the CoE in 1949, as did France and Italy, ranked lower, with fewer cases, while Bulgaria, Ukraine and Russia joined in 1992, 1995, and 1996, respectively. Azerbaijan, which joined the CoE in 2001, has as many cases as Germany, whose accession date is 1950. Despite their chronological difference and democratic maturity, the old and new democratic states equate in the number of violations of the Convention in life prisoner cases. As we develop further below, the issues raised by the plaintiffs and the violations found are essentially the same. The differences concern certain aspects of the violations of the articles of the Convention, their intensity or their nature. An analysis of the chronology of state violations of individual rights and freedoms reveals a history of disagreement with this harsh and indefinite punishment and a history of understanding its limits and content, since—in addition to the standard problems that arise with other punishments or the limits and guarantees of imprisonment—many of the ECtHR’s complaints and deliberations focus on the meaningfulness of life imprisonment and its reducibility.

State	Number of cases
Turkey	45
United Kingdom	35
Ukraine	30
Bulgaria	26
Poland	22
Russia	14
France	10
Germany	9
Italy	7
Azerbaijan	6
Albania	5
Hungary	4
Austria	3
Netherlands	3
Greece	3
Slovakia	3
Spain	2
Belgium	2
Romania	2
Latvia	2
Moldova	2
Estonia	1
Armenia	1
Cyprus	1
Ireland	1
Total	240

Table 1.

Number of cases (complaints) against the state.

Source: own elaboration.

Table 2 shows that the largest number of cases won by plaintiffs concerned violations of the prohibition of torture or inhuman treatment, followed by unfair criminal trial and illegal incarceration (too long or insufficiently justified). A relatively large number of violations concerned the state’s failure to provide an effective remedy to protect fundamental rights and freedoms.

Article	Number of pleas won, ECtHR agreed with plaintiff and found a violation of Convention provision
Art. 3 of the Convention	60
Art. 5 of the Convention	35
Art. 6 of the Convention	49
Art. 7 of the Convention	2
Art. 8 of the Convention	15
Art. 9 of the Convention	1
Art. 10 of the Convention	0
Art. 13 of the Convention	24
Art. 14 of the Convention	0
Art. 18 of the Convention	0
Art. 34 of the Convention	12
Art. 3 of Protocol No. 1	3
Art. 2 of Protocol No. 4	0
Art. 4 of Protocol No. 7	0
Total	201

Table 2.

Number of cases won by plaintiffs in relation to the ECHR provision.

Source: own elaboration.

As for the states leading in violations of specific provisions of the Convention, Bulgaria and Ukraine violated the prohibition of torture or inhuman treatment of detainees the most times, while Turkey and the UK and Poland violated the personal liberty of plaintiffs. Turkey and Ukraine failed to provide a fair trial the most times, while Bulgaria most often violated a life prisoner’s right to a private or family life and the right to an effective remedy to protect basic human needs encoded in the ECHR (Table 3).

State	Art. 3	Art. 5	Art. 6	Art. 7	Art. 8	Art. 9	Art. 13	Art. 14	Art. 34	Art. 3 of Protocol No. 1
Bulgaria	17	—	4	—	8	—	14	—	—	1
Poland	2	7	3	—	—	—	1	—	—	—
Russia	7	4	9	—	—	—	1	—	4	—
Turkey	7	20	35	—	—	—	1	—	—	—
Ukraine	13	2	12	—	5	1	2	—	5	—
United Kingdom	2	15	6	—	3	—	—	—	—	1

Table 3.

Leading countries in violations of the convention – Comparison.

Source: own elaboration.

Table 4 illustrates the upward trend of cases of plaintiffs sentenced to life imprisonment pending before the Court.

1962–1999	2000–2010	2011–2016
18	114	108

Table 4.

Increase in life prisoner cases before the ECtHR.

Source: own elaboration.

In terms of damages awarded (non-pecuniary damage), the ECtHR awarded the highest amount to the lead plaintiff in the case Ilaşcu and Others v. Moldova and Russia (180,000 Euros) and the lowest to each of the two applicants in Laryagin and Aristov v. Russia (500 Euros each). In total—to all lifetime plaintiffs in their cases (including the compensation paid as a result of the plaintiff’s settlement with the government in 15 Polish cases)—the ECtHR awarded the sum of €2,750,270. In the 22 of the cases that were won, the ECtHR held that it is sufficient satisfaction for a plaintiff simply to establish that there has been a violation of the Convention.

4.3 Qualitative analysis—the most common violations of the convention

In the qualitative analysis, we determined what the most common violations of the Convention consisted of, which we present below with an indication of specific cases.

Violation of Article 3

1. harsh and degrading prison living conditions (Aliev v. Ukraine, Neshkov et al. v. Bulgaria);

2. a special and restrictive regime, often automatically linked to the sentence, independent of the individual assessment of the convict (Öcalan v. Turkey, Baybasin v. Netherlands, Kwiek v. Poland);

3. (3) irreducible and absolute life sentence and deprivation of the right to hope (Vinter v. United Kingdom, Trabelsi v. Belgium, Murray v. Netherlands Čačko v. Slovakia).

Violation of Article 5

1. Unjustified and prolonged detention, insufficient grounds for detention (Article 5(3)) (Tkachev v. Ukraine, Moskovets v. Russia and the Polish cases: Bielski v. Poland and Germany, Bieniek v. Poland, Chmiel v. Poland, Golek v. Poland, Hołowczak v. Poland, Kowalczyk v. Poland, Ruprecht v. Poland, Raducki v. Poland);

2. Lack of judicial review of decisions on incarceration if continued; violation of the right to appeal to a court in cases of arrest or detention and unclear procedure for parole (art. 5 para. 4) (Ismoilov et al. v. Russia, Černák v. Slovakia, Karņejevs v. Latvia, Von Bülow v. United Kingdom, Betteridge v. United Kingdom).

Two record-breaking cases in terms of length of pretrial detention are worth noting, Mehmet Kaya v. Turkey and İzmirli v. Turkeyin, for which the periods were 25 and 20 years, respectively. The average length of imprisonment found unlawful by the court was almost 7 years.

Violation of Article 6

1. failure of the court to hear the case within a reasonable time (Martin v. United Kingdom, Pakkan v. Turkey, Karmo v. Bulgaria, Shugayev v. Russia, Kashavelov v. Bulgaria, Kwiek v. Poland);

2. violation of the impartiality or independence of the court (Remli v. France);

3. failure to ensure the right to defence and free legal aid (Dovzhenko v. Ukraine, Leonid Lazarenko v. Ukraine);

4. violation of the presumption of innocence (Shagin v. Ukraine, Maksim Petrov v. Russia, Popovici v. Moldova);

5. inability to prepare for defence (Iglin v. Ukraine).

Violation of Article 8

1. unlawful inspection of correspondence with a lawyer or ECtHR, unlawful wire-tapping (Chervenkov v. Bulgaria, Halil Adem Hasan v. Bulgaria, Oreshkov v. Bulgaria, Shahanov v. Bulgaria);

2. excessive restrictions on contact with loved ones or decisions to conceive a child (Trosin v. Ukraine, Khoroshenko v. Russia, Dickson v. United Kingdom).

Violation of Article 13

1. the lack of an effective legal remedy to ensure that the inhumane conditions of prison life are changed (Lenev v. Bulgaria and Shahanov v. Bulgaria),

2. the impossibility of challenging decisions extending the application of the special regime or interrupting the length of proceedings (Ramirez Sanchez v. France, Kaemena and Thöneböhn v. Germany).

5. Discussion and conclusion

The analysis of the cases studied shows that the community of plaintiffs—whether at the stage of trial or execution of sentence—shares the problems resulting from the dysfunction of the justice system as such. Their complaints expose its vulnerability to goods such as personal freedom and the uncertainty of conviction (long-term detention), family ties, the restrictive and harsh prison regime applied over the years and the offer of treatment and the possibility of rehabilitation. The judgements of national courts, examined by the Strasbourg Court, show a greater emphasis on the protective aspect than on the corrective and rehabilitative aspect, which is the purpose of imprisonment. The Court does not apply a double standard in assessing the magnitude of violations of the Convention—both states grounded in democracy and a tradition of respect for human rights and those ‘learning’ violate the fundamental rights of defendants and prisoners. However, the ECtHR’s sensitivity to violations of the Convention and the associated expectations of states for positive obligations is growing [48, 49, 50, 51].

Through our research, we can identify problems specific to life imprisonment, related to its essence and specificity.

First, in the light of the case law of the ECtHR, from Art. 3 of the ECHR can be derived the right to hope, which is understood as the right of the convicted person to change their situation depending on the progress of their rehabilitation and trustworthiness. The change involves directing them to school, work and rehabilitation programs and qualifying them for a lighter prison regime and eventually to life in a society of freedom under parole. As a result of these interactions and decisions, which, as proven by research and practice, stabilise life, good habits and desirable attitudes, the prison administration should come to the conclusion that the convict is no longer a threat to society.

Secondly, the right to hope and humane treatment cannot be reconciled with an absolute life sentence. The irreducibility of life imprisonment was found to be a violation of Art. 3 ECHR, as it deprives the convicted person of dignity. Also problematic is an overly discretionary parole or pardon system that verges on arbitrariness and a lack of correctional programmes. The criteria for parole are to be precisely defined in the law; they should not raise doubts. It is their concretisation that makes it possible to create a plan for the execution of the sentence and to get the convict to cooperate in the rehabilitation offer proposed to them. This provides the prisoner with the knowledge necessary to understand and accept their situation and the opportunity to change it.

Thirdly, from the right to hope, the ECtHR thus derives the right to an appropriate offer of activities, effective interventions and rehabilitation. A prisoner has the right to undergo socialisation to the best of his or her ability, which can be accomplished through inclusion in education, work, therapy or other effective intervention. The purpose of these interventions is to form in the convict proper habits of conduct and to change their behaviour and attitude in such a way that they do not pose a threat to society, but can live in freedom from crime. Rehabilitation is a complex concept [32, 52, 53, 54, 55, 56, 57, 58, 59], but in the case of life prisoners, it primarily means restoring their lost rights and good reputation and erasing the effects of their conviction.

Fourthly, the right to hope is also expressed in criticism of the automaticity and unnecessary restrictions that the prison system applies to this category of prisoners. In the absence of individual treatment of lifers, it is possible to speak of automatism in the application of a strict regime, which is characterised by social isolation, seclusion, poor offer of activities and, as a result, poor chances for rehabilitation. The ECtHR emphasises that lifers remain human beings with the same needs and potential as people at large, requiring assistance and dignity like any of us. Thus, the potential for change in a lifer cannot be ruled out. Individualised treatment forces correctional officers to find the prisoner’s strengths and support them. In this context, the ECtHR uses value-oriented phrases such as hope, opportunity, rehabilitation, change, improvement, repentance and reformation. The Court clearly reads the new right available to life prisoners—the right to hope—and at the same time clarifies the positive obligations of the state that flow from it. This is a far-reaching but necessary intrusion into the practice of life sentencing in European countries.

An analysis of all life prisoner rulings to date shows that the Court treats all states and all prisoners sentenced to this with the most severe punishment equally. We did not note a double standard.

At the same time, it is more challenging for the correctional system to enforce a life sentence than a term sentence. The ECtHR formulates certain requirements related to a completely new right, which is the right to hope, progression and rehabilitation.