Information Note on the Court’s case-law 203

January 2017

Khamtokhu and Aksenchik v. Russia [GC] - 60367/08 and 961/11

Judgment 24.1.2017 [GC]

Article 14

Discrimination

Alleged discrimination in provisions governing liability to life imprisonment: no violations

Facts – Article 57 of the Russian Criminal Code provides that a sentence of life imprisonment may be imposed for certain particularly serious offenc es. However, such a sentence cannot be imposed on women, or on persons under 18 when the offence was committed or over 65 at the date of conviction. The Russian Constitutional Court has repeatedly declared inadmissible complaints of alleged incompatibility of that provision with the constitutional protection against discrimination, inter alia , on the grounds that any difference in treatment is based on principles of justice and humanitarian considerations and allows age, social and physiological characteris tics to be taken into account when sentencing.

In their applications to the European Court, the applicants, who were both adult males serving life sentences for criminal offences, complained under Article 14 of the Convention read in conjunction with Artic le 5 of discriminatory treatment vis-à-vis other categories of convicts who were exempt from life imprisonment as a matter of law.

On 1 December 2015 a Chamber of the Court decided to relinquish jurisdiction in favour of the Grand Chamber.

Law – Article 1 4 in conjunction with Article 5

(a) Applicability – Although Article 5 of the Convention does not preclude the imposition of life imprisonment where such punishment is prescribed by national law, the prohibition of discrimination enshrined in Article 14 e xtends beyond the enjoyment of the rights and freedoms which the Convention and Protocols require each State to guarantee and applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has volun tarily decided to provide. It followed that where national legislation exempted certain categories of convicted prisoners from life imprisonment, this fell within the ambit of Article 5 § 1 for the purposes of the applicability of Article 14 taken in conju nction with that provision.

Article 57 of the Russian Criminal Code established a sentencing policy which differentiated on the basis of sex and age with regard to life imprisonment, both of which were prohibited grounds of discrimination for the purposes of Article 14 of the Convention.

Article 14 taken in conjunction with Article 5 was therefore applicable.

(b) Compliance – The sentencing policy which exempted female offenders, juvenile offenders and offenders aged 65 or over from life imprisonment amounted to a difference in treatment on grounds of sex and age. The Government’s stated aim of promoting the principles of ju stice and humanity through taking into account the age and “physiological characteristics” of various categories of offenders could be regarded as legitimate in the context of sentencing policy and for the purposes of applying Article 14 in conjunction wit h Article 5 § 1.

As regards proportionality, life imprisonment was reserved in the Russian Criminal Code for the few particularly serious offences in respect of which, after taking into account all the aggravating and mitigating circumstances, the trial co urt was satisfied that a life sentence was the only punishment that would befit the crime. It was not a mandatory or automatic sentence for any offence, no matter how serious. The outcome of the applicants’ trials was decided on the specific facts of their cases and their sentences were the product of individualised application of the criminal law by the trial court whose discretion in the choice of appropriate sentence was not curtailed. In these circumstances, in view of the penological objectives of the protection of society and general and individual deterrence, the life sentences imposed on the applicants did not appear arbitrary or unreasonable. Moreover, provided they abided by the prison regulations, the applicants would be eligible for early release after the first twenty-five years so that no issues comparable to those in Vinter and Others v. the United Kingdom ([GC], 66069/09 et al., 9 July 2013, Information Note 165 ; and Murray v. the Netherlands ([GC], 10511/10, 26 April 2016, Information Note 195 ) arose in their case.

(i) Difference in treatment on grounds of age – There was no reason to question the difference i n treatment between the applicants and juvenile offenders. The exemption of juvenile offenders from life imprisonment was consonant with the approach common to the legal systems of all the Contracting States. It was also consistent with international stand ards* and its purpose was evidently to facilitate the rehabilitation of juvenile delinquents. The Court considered that when young offenders were held accountable for their deeds, however serious, this had to be done with due regard for their presumed imma turity, both mental and emotional, as well as the greater malleability of their personality and their capacity for rehabilitation and reformation.

As to the difference in treatment with offenders aged 65 or over, the Court saw no grounds for considering th at the relevant domestic provision excluding offenders aged 65 or over from life imprisonment had no objective and reasonable justification. The purpose of that provision in principle coincided with the interests underlying the eligibility for early releas e after the first twenty-five years for adult male offenders aged under 65, such as the applicants, noted in Vinter as being a common approach in national jurisdictions where life imprisonment can be imposed. Reducibility of a life sentence carried even gr eater weight for elderly offenders in order not to become a mere illusory possibility.

(ii) Difference in treatment on grounds of sex – The Court took note of various European and international instruments addressing the needs of women for protection aga inst gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood. The Government had provided statistical data showing a considerable difference between the total number of m ale and female prison inmates and had also pointed to the relatively small number of persons sentenced to life imprisonment. It was not for the Court to reassess the evaluation made by the domestic authorities of the data in their possession or of the peno logical rationale which such data purported to demonstrate. In the particular circumstances of the case, there was a sufficient basis for the Court to conclude that there existed a public interest underlying the exemption of female offenders from life impr isonment by way of a general rule.

***

It was quite natural that the national authorities, whose duty it was also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy broad discretion when asked to make ru lings on sensitive matters such as penal policy. Since the delicate issues raised in the present case touched on areas where there was little common ground (apart from the exemption of juvenile offenders from life imprisonment) amongst the member States an d, generally speaking, the law appeared to be in a transitional stage, a wide margin of appreciation had to be left to the authorities of each State.

It therefore appeared difficult to criticise the Russian legislature for having established, in a way whic h reflected the evolution of society in that sphere, the exemption of certain groups of offenders from life imprisonment. Such an exemption represented, all things considered, social progress in penological matters. In the absence of common ground regardin g the imposition of life imprisonment, the Russian authorities had not overstepped their margin of appreciation.

In sum, while it would clearly be possible for the respondent State, in pursuit of its aim of promoting the principles of justice and humanity , to extend the exemption from life imprisonment to all categories of offenders, it was not required to do so under the Convention as currently interpreted by the Court. Moreover, in view of the practical operation of life imprisonment in the Russian Feder ation, both as to the manner of its imposition and to a possibility of subsequent review, the interests of the society as a whole as far as they were compatible with the Convention and having regard to the wide margin of appreciation enjoyed by the respond ent Government, the Court was satisfied that there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. The impugned exemptions did not constitute a prohibited difference in treatment. In reaching that conclusion, the Court took full account of the need to interpret the Convention in a harmonious manner and in conformity with its general spirit.

Conclusions : no violation on grounds of age (sixteen votes to one); no violation on grounds of sex (ten votes to seven).

* The recommendation of the Committee on the Rights of the Child ( General comment No. 10 (2007) ) to abolish all forms of life imprisonme nt for offences committed by persons below the age of 18 and with the UN General Assembly’s Resolution A/RES/67/166 of 20 December 2012 on Human Rights in the Administration of Justice inviting the States to consider repealing all forms of life imprisonment for such persons.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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