Resolution CM/ ResDH (2011)197 [1]

Execution of the judgment of the European Court of Human Rights

Kafkaris against Cyprus

(Application No. 21906/04, judgment of 12 February 2008 – Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the quality of the law applicable in 1987, when the applicant committed an offence which led to his conviction in 1989 by the Limassol Assize Court, in that it did not enable him to discern, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution (violation of Article 7) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)197

Information about the measures to comply with the judgment in the case of

Kafkaris against Cyprus

Introductory case summary

The case concerns the quality of the law applicable at the time that the applicant committed an offence in 1987 leading to his conviction for murder in 1989 by the Limassol Assize Court, which did not enable him to discern, to a degree that was reasonable in the circumstances, the scope of the penalty of life imprisonment and the manner of its execution (violation of Article 7).

The European Court noted that it was common ground between the parties that at the time the applicant was prosecuted and convicted, the offence of premeditated murder was punishable by mandatory life imprisonment under section 203 (2) of the Criminal Code and that he had been sentenced under that provision. However, at the time the applicant committed the offence, both the executive and the administrative authorities understood the Prison Regulations (in Prison Discipline Law (Cap.286)), to impose a maximum limit of twenty years to be served by any person who had been sentenced to life imprisonment.

The Court therefore concluded that, at the time the applicant committed the offence, Cypriot law taken as a whole was not formulated with sufficient precision as to enable the applicant to discern, the scope of the penalty of life imprisonment and the manner of its execution. The European Court noted “that there [was] a violation of Article 7 of the Convention with regard to the quality of the law applicable at the material time” ... but “no violation of this provision in so far as the applicant complains about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law exempting life prisoners from the possibility of remission of their sentence” (§152).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

13 465 EUR

13 465 EUR

Paid on 16/04/2008

b) Individual measures

The applicant did not seek compensation for pecuniary damage. He submitted that a finding of a violation in respect of his complaints and his consequent release from prison would constitute adequate satisfaction. However, the European Court held that “Having regard to all the circumstances of the case ... a finding of a violation of Article 7 of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage suffered by the applicant.”(§170). A sum was awarded for the expenses incurred during the process .

Following a series of failed legal challenges at the national level [2] the applicant made a further application to the European Court which was found inadmissible on 21 June 2011 (see Kafkaris 9644/09). In that application, the applicant complained inter alia under Article 46 of the Convention that the government had failed to execute the Grand Chamber ’ s judgment. In particular, the applicant claimed that he was still being held in detention despite the Grand Chamber ’ s ruling of a violation of Article 7 of the Convention (§72 of the inadmissibility decision). The European Court rejected this argument as incompatible ratione materiae with the Convention, relying on its conclusions in the Grand Chamber judgment that “ ... there was no element of retrospective imposition of a heavier penalty involved since in view of the substantive provisions of the Criminal Code, it could not be said that at the material time the penalty of a life sentence could clearly be taken to have amounted to twenty years ’ imprisonment. The violation of [Article 7] was confined to the “quality of the law” at the time of the commission of the Offence”. The Court noted that “ ... this finding should be seen in conjunction with the Grand Chamber ’ s finding under Article 5(1) of the Convention that the applicant ’ s detention since 2 November 2002 remained lawful”. (§§76-77 of the inadmissibility decision). In these circumstances, no other individual measure was required by the Committee of Ministers.

II. General measures

In May 1996 a new Prisons Law abolished and replaced the Prison (General) Regulations 1981 which were in force at the time of commission of the offence and had given rise to the problem of quality of law as found in the Grand Chamber judgment.

Some further significant amendments to the 1996 Law not directly related to the violation of Article 7, were introduced in 2009 following the Grand Chamber judgment. Section 14 of the above Law which provided for the conditional release of prisoners including life-prisoners, by order of the President of the Republic with the agreement of the Attorney-General (see §§.59 and 102 of the Grand Chamber judgment) was replaced by new provisions providing for the establishment of an independent Release Board for the release of prisoners on licence. A life prisoner who has served at least twelve years of his sentence can apply to the Release Board for conditional release (see §§ 33-44 of the inadmissibility decision in Kafkaris 9644/09) .

Under cover of the Human Rights Sector of the Government Agent ’ s Office summarising the judgment and its reasoning, copies of the judgment were sent to the Ministry of Justice and Public Order, the presidents of the Cyprus Bar Association and the Legal Affairs and Human Rights Parliamentary Committees. The judgment has also been published (also in Greek translation) on the Human Rights Section of the Legal Service website ( www.la w .gov.cy ) and has been published in Greek translation in the Cyprus Law Journal and the web-site of the Cyprus Bar Association.

III. Conclusions of the respondent state .

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Cyprus has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2]   The applicant argued before the Cypriot Supreme Court that he should have been released following the European Court ’s judgment (see application 19/2008 Supreme Court (first-instance jurisdiction) and 123/2008 (appeal jurisdiction).