Author: Ilham Gasimov, LL.M. in International Human Rights Law at Saarland University, 2021/2022, email: [email protected]
Editor: Danai Daisy Chirawu, Erasmus Mundus Joint Masters in Human Rights Policy & Practice (2021-2023), The University of Gothenburg, University of Deusto, University of Roehampton & The Arctic University of Norway, Bachelor of Laws (With Honours) (LLBS) (2012-2016) – the University of Zimbabwe, e-mail: [email protected]
Abstract
Human rights law allows for life sentences in specific cases, and many countries utilise this as a punishment for the most severe crimes. The method of execution may vary from jurisdiction to jurisdiction, placing additional limitations based on gender values. This essay provides a general overview of European legal standards on life imprisonment. It analyses and comments on criminal adjudication resulting in life imprisonment, judiciary difficulties and the common practice of exempting women from life imprisonment sentencing. There is a relevant judgment[1] of the European Court of Human Rights (hereinafter, “ECtHR” or “the Court”) demonstrating its perspective on sexual discrimination. The focal point that this paper will concentrate on is whether the Court made or should make a gender-stereotypical or an individual assessment.
INTRODUCTION
To be sentenced to spend the remainder of one’s life imprisoned after being found guilty of a crime is to receive a life imprisonment or life sentence. This method of adjudication is highly controversial despite its frequent use as a form of punishment in most jurisdictions.[2] Some scholars consider a life sentence equivalent to the death penalty because it comprises a death sentence.[3] Since the death penalty is widely condemned under international law[4] and is virtually banned under European Human Rights law per Protocol 13 to the European Convention on Human Rights[5], (hereinafter, “ECHR” or “the Convention”) several countries have substituted life sentences for capital punishment.[6] Although life sentences in jail are frequently handed out as punishment, the standards and restrictions that apply to such sentences vary considerably between jurisdictions. There is uncertainty covering the definition of life imprisonment itself because the phrase “life sentence” can indicate something notably different depending on the jurisdiction.[7] Sentencing to life in prison may be obligatory or optional, and it may or may not include the chance of release.[8] Therefore, the legitimacy of life sentences varies from one disciplinary system to the next.
Is it legitimate for states to apply the mandatory life sentence for all, with the exception of the youngest offenders, the most vulnerable of their elderly, and female offenders? In cases when the Court ruled that a specific action is discriminatory, how should it deal with the possibility that states could ‘level down’ protection in response? These are our research questions and the questions that the Grand Chamber of the ECtHR had to consider while issuing its decision in Khamtokhu and Aksenchik v. Russia.[9] The discriminatory nature of the respondent state’s policy of limiting life sentences to male offenders between 18 and 65 was at issue in this case. The Grand Chamber could not agree on whether or not there had been a violation of the Convention.[10] After reading the ruling and the several dissenting opinions, it becomes clear that the Court did not determine that gender discrimination had occurred since doing so would have resulted in the re-introduction of life imprisonment for the excluded groups.
Regarding the complete details of the data collection methodology, this paper sourced the material from the official precedent portals, including the HUDOC, as well as the new emerging Knowledge Sharing platform of the ECtHR, wherein the data was originally produced. Nevertheless, the research data is not limited to the mentioned sources but refers to the considerable knowledge gained by reviewing the literature, pieces, surveys, and experiments of academics, which draft otherwise stated by the European perspective. The preferred data range criteria are the best methodology to touch the most recent case laws, standards, and gaps in the practice.
Chapter A formulates the general background regarding life imprisonment, its application, utilised standards, and limitations by European practice. It touches on a couple of Strasbourg judgements concerning the applicable standards for sentencing life imprisonment against the accused, including maintaining its nature to create an opportunity for the prisoner to rehabilitate and return to society again. Chapter B operates in-depth and addresses the key research question of the paper by analysing the Grand Chamber’s determination on life imprisonment and applied exceptions to gender-based values. It starts with the main facts of the case and findings of the Grand Chamber and ends with the author’s comments on the perspective of Strasbourg Court. Eventually, the paper evaluates the situation and answers whether the Court should make a gender-stereotypical or an individual assessment when it comes to the adjudication of a criminal.
A. Life Imprisonment in the European Practice: Applied Standards and Limitations
A life sentence does not constitute torture, inhuman, or degrading treatment under international and European standards. However, to remain in line with international human rights standards, both systems have imposed restrictions on the practice. It has been stressed by the ECtHR and the United Nations Human Rights Committee (hereafter, “UNHRC”) that people serving life sentences should have the opportunity to be released from their imprisonment.[11] As an alternative to the death penalty, life in prison is permitted by international human rights law. Nevertheless, international law imposes some constraints on the method. As stated in Article 10.3 of the International Covenant on Civil and Political Rights (hereafter, “ICCPR”), “the disciplinary system shall involve treatment of convicts, the fundamental purpose of which shall be reformation and social rehabilitation.”[12] The primary goal of imprisonment, rather than punishment, is stated here to be the inmate’s rehabilitation. Even if a prisoner is serving a life sentence, this phrase suggests a reason for optimism regarding his eventual release.[13] While the topic of life sentences, in general, has been discussed worldwide, most attention has been paid to the life sentences given to young criminals.
Individual concerns challenging the validity of life sentences have been addressed by the UNHCR, the treaty body overseeing the ICCPR implementation. The Committee held that Australia’s life sentences for two teenagers convicted of murder and rape of a woman violated Articles 7, 10.3, and 24 of the ICCPR in the recent case of Blessington and Elliot v Australia.[14] Although this case focused on adolescents serving life sentences, the Committee did make some general comments about the use of life imprisonment. The UNHCR, like the ECHR, stated that those serving life sentences should have the right to petition for a review and the chance for early release.[15] The Committee found that the release option must be more than theoretical and that the review process must be comprehensive to give domestic authorities a fair chance to assess the detainee’s rehabilitation.[16] It was also reaffirmed that the primary goal of any penal system should be the rehabilitation and reintegration of its criminals rather than punishment.[17]
The fundamental notion of proportionality governs sentencing in several European countries.[18] The justifications for imposing criminal punishments on convicted criminals include retribution, incapacitation, restitution, and deterrent, all of which are proportional to the seriousness of the offence and the offender’s background and circumstances. Individual sentences may also incorporate rehabilitation possibilities with the goals of significantly decreasing the offender’s criminal propensity, improving the offender’s chances of conditional release and reintegration into society under the supervision of probation services, and reducing the burden on the criminal justice system.[19] Parole authorities are tasked with weighing the applicant’s assessed risk of reoffending against the public’s safety while deciding whether or not to grant parole to those serving life sentences.[20]
In the Vinter case, the Strasbourg Court ruled that life sentences in the United Kingdom violated Article 3 of the Convention since they were functionally irreducible and offered no hope of release.[21] The Court ruled that life imprisonment violated Article 3 of the Convention since there was no precise mechanism for the Justice Secretary to examine the case and order the defendant’s release.[22] The ECtHR elaborated on the proper structure of review procedures for life sentences. The Grand Chamber stated that a review must allow the domestic authorities to determine whether any changes regarding the prisoner are essential and make significant rehabilitation progress during the sentence.[23]
After reviewing Strasbourg’s perspective on the matter, it is evident that the sentence length is a matter of discretion for each member state of the Council of Europe.[24] Nevertheless, if life imprisonment lacks the possibility of parole or a transparent and reliable review process, it will violate Article 3 of the Convention.[25] The Strasbourg Court has ruled that there must be a “de jure and de facto” possibility of release.[26] However, states should have some margin of appreciation in deciding how life sentences are reviewed.[27]
As mentioned above, the Court leaves the review and supervision process of life imprisonment to the discretion of the Member States. They also have a margin of appreciation for issuing a life sentence and the scope of individuals subject to that sentencing. This notion gives the adjudicator flexibility to take into account the prevailing circumstances, psychological and physical state of the accused, his\her marital status, age, or even gender. Therefore, several European countries exempt specific individuals from life imprisonment regardless of the committed crime, its severity, and the state of the victim. For instance, according to Article 57.2 of the Criminal Code of the Republic of Azerbaijan, life imprisonment is not applied against women, juveniles, and men who have reached the age of 65.[28] As a former Member State of the Council of Europe, the Russian Federation applies the same rule.*[29] The Strasbourg Court decided on the standard of exceptions and limitations concerning life imprisonment by referring to the situation and claims addressed by two Russian accused against the domestic law governing imprisonment affairs.[30]
B. Case of Khamtokhu and Aksenchik v. Russia, ECtHR
i. Main Facts of the Case
Article 57 of the Russian Criminal Code provides life imprisonment for the most heinous crimes committed against human life and public security. It cannot, however, be extended:
- to women.
- to anyone under the age of 18.
- to any man 65 or older at the time of sentencing.
If the criminal serving a life sentence has followed all prison rules for the previous three years, he may be eligible for early release after serving 25 years.[31] Complaints that the above laws violated Russia’s constitutional ban on discrimination had been repeatedly dismissed as inadmissible by the Federal Constitutional Court.[32]
Two men were found guilty in Russian courts in 2008 and 2010 and given life sentences in response to their crimes. Aslan Khamtokhu was sentenced to life in prison in June 2008 for multiple offences, including escape from prison, attempted murder of police officers and state officials, and illegally possessing firearms. Artyom Aksenchik, the second applicant, was sentenced to life in prison in October 2010 for three counts of murder. The Yamalo-Nenetskiy Region is where both Russian nationals are incarcerated for the rest of their lives. They filed applications before the domestic courts claiming that the domestic adjudication demonstrated totally unfair sentencing but was unsuccessful.
The Equal Rights Trust, a non-governmental organisation, filed a dissenting brief that the domestic measure violated Article 14 because it “was not temporary and did not pursue any objective linked to the equality of opportunity or treatment”.[33] Therefore, it constituted unacceptable “positive discrimination.” Nor was it proven that making an exception for everyone over 65 was a fair strategy to prevent harsh punishment. The NGO argued that paternalistic, stereotypical, or generalised approaches were unjustified. Moreover, removing the exemptions would not solve the problem because it would violate the principle of not “levelling down.” Instead, they suggested conducting a case-by-case analysis to determine the most effective punishments for specific offenders.
ii. The Merits of the Grand Chamber’s Judgment
Based on prior decisions, the Grand Chamber determined that the case fell under Article 5 of the ECHR and that a life sentence was not necessarily prohibited by the provision.[34] Reviewing the complaint under Article 14 in conjunction with Article 5, the majority concluded that there was undeniably a difference in treatment between similarly situated individuals based on their gender and age.[35] The issue then became whether or not the measure was proportionate to the legitimate aim.
The Government’s goal of promoting “the ideals of justice and humanity which demanded that the sentencing policy takes into account the age and ‘physiological characteristics’ of distinct types of offenders”[36] was deemed applicable by the majority. The majority argued that the severe nature of the punishment and the fact that life sentences are never mandatory[37] demonstrate that the measure is appropriate to the objective. In addition, the majority acknowledged a State margin of appreciation.[38] It highlighted that the applicants’ sentences were based on an individual evaluation and that they would be eligible for release after 25 years. The Grand Chamber determined that it is not the Court’s responsibility to select the appropriate punishment for a particular offence[39] and any sex-based distinctions must be justified by very significant reasons.
Most of the Court members agreed that the age discrimination claim should be dismissed since the disparity in treatment was “justified”. The need to safeguard and rehabilitate young offenders was emphasised[40], and the exemption granted to those 65 and older was considered to give them a reasonable chance of release.[41]
When deciding to treat female offenders differently, the Court cited “the need for protection of pregnancy and motherhood” and the “internationally recognised necessity to protect women from abuse and violence in detention”[42]. The statistical data demonstrating women constitute a much smaller percentage of the Russian jail population than men do and that life sentences are rarely handed out formed part of the argument as well.[43] With this reasoning in mind, the Court highlighted the subsidiarity of its function. It concluded that “there exists a public interest underpinning the exemption of female offenders from life imprisonment by way of a general rule”.[44] The Court further stated that there is no European consensus on the use of life sentences and that the decision to exclude specific groups from life sentences reflects “social development.”[45] Therefore, the Court ruled that there was no age and gender discrimination in this case.
As an alternative to the majority’s conclusion that no sex discrimination had occurred, Judge Sajó argued in a concurring opinion that the distinctions between male and female criminality prevented an accurate comparison of the two groups. He added that “the same term of imprisonment for a woman is more traumatic than for a male, probably because, traditionally, a woman is robbed of the possibility of giving birth to a child, and parenting.” This notion may come off as a simple example of stereotyping based on gender. However, many would argue that this is true due to biological distinctions and specifics of the female brain.
iii. Comments
The Strasbourg perspective on life imprisonment, its application and its limitations leave a gap in the actual content. One can find himself repeatedly discussing the Court’s approach to this case, the problems raised by this judgment itself, and the separate opinions appended to it. The following comments will focus mainly on the gender discrimination claim before the Court.
The judges who dissented from the perspective of the Strasbourg Court all acknowledged the complexities of the issue. It is undeniable that the domestic courts’ previous rulings on gender discrimination in Russia have not been well received at the domestic level. The ECtHR’s worry that a reduction in safeguards could subject more persons to life in prison under possibly awful conditions is also understandable. However, these factors are not central to whether or not there has been gender-based discrimination in this instance.
In light of the fact that the judgement is replete with gender stereotypes, this result is especially problematic because it legitimises views of women as victims or as characterised by the “specificities of the female brain,” as expressed by Judge Sajó in his concurring opinion, and because it imagines our diverse gender as a homogeneous mass of mothers and vulnerable individuals. The need to prevent stereotyping and paternalism were discussed when the decision was produced, but these reasons could not convince the majority. This standpoint is evidenced by the differing perspectives and the involvement of a third party in this instance.
There are likely numerous circumstances in which a sentence of life in prison is excessive. Undoubtedly, life imprisonment is not always the best choice. However, excluding women completely – and not, for example, homosexual convicts, who are also likely to suffer in detention, or fathers, who also have an interest in being with their children – does not proportionately handle this issue. Contrary to the frequent claim found throughout the judgement and the individual opinions, it is arguable whether or not a classification based on preconceived notions of gender represents “progress.” It is essential to highlight that the Court has not recognised women in the Council of Europe as a vulnerable group in any generic terms. Instead, it has concentrated on specific situations that give birth to vulnerability, such as with victims of domestic violence or pregnant women.[46] Here, however, the Court failed to look beyond its current options, although it could find a way to achieve individual assessment without promoting harmful gender stereotypes.
Hence, the Strasbourg Court should have found a violation of gender equality in adjudicating an accused. The majority had neglected the “very weighty reasons test”, and a large majority of States do not generally exempt women from life imprisonment.[47] Moreover, the vulnerability of individuals should be taken into account by the sentencing judge, not specifically the legislation formulating discriminatory provisions. Without dismissing the critical necessity of the struggle against discrimination against women because of their sex, such protection should not serve as an excuse for continuously perceiving women as victims, as doing so would harm their cause and ultimately prove counterproductive. Though there is an apparent necessity to safeguard young criminals, there is no justification to automatically exempt female offenders from the possibility of a life sentence.
CONCLUSION
In conclusion, the challenged case demonstrated that consensus should not be binding. However, this lack should not support a choice of the sentencing regime that imposes life imprisonment on men while exempting women.
Generally, the cases, which deal with gender differentiation, clearly call for a more nuanced approach, especially if the applicants give convincing justifications, as they did here. However, the Court ignored the applicants’ submissions, leading to an improper resolution of the issues at hand. Even though they serve different societal roles, motherhood and fatherhood are both essential. Furthermore, despite men and women each having their weaknesses and strengths, neither should be used to justify sex-based discrimination or special treatment because cultural norms have continuously operated this way. In order to achieve true equality in terms of gender, these facts can only serve as justification for individualised care. Therefore, the Court significantly endangered equality as such by not treating equally individuals who were “similarly placed,” and it was quite improbable that there would ever be a public interest in such treatment.
[1] ECtHR, Khamtokhu and Aksenchik v. Russia, App. nos. 60367/08 961/11, 24 January 2017.
[2] Valeska David & Julie Fraser, Juvenile Criminal Justice before the Inter-American Court of Human Rights: Aims and Limitations of the Imprisonment of Children, in Haeck/Ruiz-Chiriboga/Herrera (eds.), p. 547, 551.
[3] Gauthier de Beco, Life sentences and human dignity, The International Journal of Human Rights 9(3)/2005, p. 411, 414.
[4] See also International Bar Association, The Death Penalty under International Law: A Background Paper to the IBAHRI Resolution on the Abolition of the Death Penalty, 15 May 2008; Richard Dieter, The Death Penalty and Human Rights: US Death Penalty and International Law.
[5] Protocol 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty in all circumstances art 1 (2002).
[6] Gauthier de Beco, (fn. 4), p. 418.
[7] Supra note, 3.
[8] Sebastiaan Verelst, “Life Imprisonment and Human Rights in Belgium”, 3(2)/2003 Human Rights Law Review, p. 279, 279.
[9] Supra note, 2.
[10] Ibid.
[11] See also ECtHR, Kafkaris v. Cyprus, App. no. 21906/04, 12 February 2008, para. 163. The Grand Chamber determined that “such sentences were both de jure and de facto reducible”. “A number of prisoners serving mandatory life sentences had been released under the constitutional powers and life prisoners could benefit from the relevant provisions at any time without having to serve a minimum period of imprisonment.”
[12] International Covenant on Civil and Political Rights, art. 10(3), Dec. 19, 1966, 1057 U.N.T.S. 407; 6 I.L.M. 368 (1966).
[13] Supra note, 4.
[14] UNHRC, Blessington and Elliot v Australia, Communication No. 1968/2010, CC PR/C/112/D/1968/2010 (Oct. 22, 2014), para 7.12.
[15] UNHRC, (fn. 6.), para. 7.7.
[16] Ibid.
[17] UNHRC, (fn. 6.), para. 7.8.
[18] Anabela Miranda Rodrigues, ‘Fundamental rights and punishment: Is there an EU perspective?’, New Journal of European Criminal Law 10/2019, p. 17, 27.
[19] Ger Coffey, “An exploration of ECtHR jurisprudence governing the administration of release processes for life and long-term sentence prisoners: Perspectives from the United Kingdom”, New Journal of European Criminal Law 12(4)/2021, p. 505, 617.
[20] Ibid.
[21] ECtHR, Vinter and Others v The United Kingdom [GC], Application Nos. 66069/09, 9 July 2013, para 131.
[22] ECtHR, (fn. 22), para. 129.
[23] ECtHR, (fn. 22), para. 119.
[24] ECtHR, László Magyar v Hungary, Application No. 73593/10, 20 May 2014, para. 46.
[25] Supra note, 14 and 15.
[26] ECtHR, (fn. 12), para. 98.
[27] ECtHR, (fn. 22), para. 120.
[28] See generally Article 52 of the Criminal Code of Azerbaijan regarding life imprisonment.
[29]* See also Article 57 of the Russian Criminal Code. The Russian Federation has ceased to be a Member State of the Council of Europe since 16 March 2022.
[30] Supra note, 2.
[31] See, ECtHR, (fn. 2), para. 15-16. The Relevant Domestic Law section of the judgment provided an explanation of the applicable legislation in criminal matters in Russia. Under the 1960 Criminal Code of the RSFSR, capital punishment could not be imposed on anyone below 18 or a pregnant woman. Subsequently, in April 1993, the Code was updated, and the exemption from capital punishment was extended to all women, young offenders and offenders aged 65 and over. After that, the 1997 Criminal Code of Russia provided for up to 20 years imprisonment, life imprisonment and capital punishment, but women, young offenders below the age of 18 and offenders aged 65 and over were exempted from life imprisonment and capital punishment. Eventually, in 2009 the Constitutional Court of Russia imposed an indefinite moratorium on capital punishment.
[32] ECtHR, (fn. 2), para. 18.
[33] ECtHR, (fn. 2), para. 50.
[34] ECtHR, (fn. 22), para. 104-106.
[35] ECtHR, (fn. 2), para. 69.
[36] ECtHR, (fn. 2), para. 70.
[37] ECtHR, (fn. 2), para. 71-75.
[38] ECtHR, (fn. 2), para. 77.
[39] ECtHR, (fn. 2), para. 78.
[40] ECtHR, (fn. 2), para. 80.
[41] ECtHR, (fn. 2), para. 81.
[42] ECtHR, (fn. 2), para. 82.
[43] Ibid.
[44] Ibid.
[45] ECtHR, (fn. 2), para. 86.
[46] See also, ECtHR, Korneykova v. Ukraine, App. no. 39884/05, 19 January 2012, para. 113. The Court decided on the applicant’s unjustified shackling and handcuffing when she was particularly sensitive (the pregnancy).
[47] For instance, the USA. A recent study by The Sentencing Project, a non-profit research group promoting criminal justice reform, presents new data on this small but growing prison population. The study, conducted in partnership with the National Black Women’s Justice Institute and the Cornell Centre on the Death Penalty Worldwide at Cornell Law School, shows that the number of women serving any life sentence increased by 19% between 2008 and 2020. The number of women serving life without the possibility of parole increased by 43%. For more information, see also Rita Oceguera, https://www.injusticewatch.org/news/2021/women-life-sentences/, (last accessed on 08/12/2022).
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