Law Faculty, University of Ljubljana
Pages: 17-67
Prohibition of torture and inhuman or degrading treatment or punishment undoubtedly derives from all the main international human rights instruments. Unlike the death penalty, which is undesirable and has already been abolished in the member states of the Council of Europe and the European Union, the sentence of life imprisonment is not in itself prohibited and does not constitute a violation of Article 3 of the European Convention on Human Rights if the legal order gives the convicted person hope that he or she will ever be released again.
When it comes to the ECtHR jurisprudence the life imprisonment itself is not prohibited and necessarily incompatible with the Article 3 of the Convention. A life sentence can remain compatible with Article 3 of the Convention only if there is both a prospect of release and a possibility of review, both of which must exist from the imposition of the sentence. A life sentence has to be reducible de iure and de facto through the review which should entail either the executive giving reasons or a judicial review, so that even the appearance of arbitrariness is avoided. Access to judicial review on whether conditions and reasons (not) to be released have to be pre-established, objective and known to prisoners. Those reasons and conditions should be based on legitimate penological grounds and the review process itself should be accompanied by sufficient procedural guaranties. Since the penological grounds for the life prison vary through the time/ not necessarily exist all the time a review process should provide for periodical check of their existence, starting no later than (approx) 25 years from the deprivation of a liberty. Considering this, prisoners cannot be denied the possibility of rehabilitation and thus the state has a positive obligation to secure prison regimes to life prisoners which are compatible with the aim of rehabilitation.
Based on what have been said, the analysis shows that in order to comply with Article 3 of the Convention and the jurisprudence of the European Court of Human Rights, national legislation should provide for the possibility of early release from a penitentiary for persons sentenced to life imprisonment - through conditional release or some other effective remedy. Currently, that is not the case with the valid text of the RS Criminal Code.
Having this in mind, in order to prevent from the possible decision on noncompliance rendered by ECtHR, we recommend two possible alternative solutions to improve current situation and to ensure a full compliance with the Art. 3: - To amend Criminal Code in order to enable all prisoners sentenced to life imprisonment to initiate parole procedure after expiring certain period previously determined in the Criminal Code together with objective criteria and adequate procedural guaranties to be applied in the procedure of rendering decision of such petition. - To keep existing provisions of the Criminal Code, but to amend Criminal Procedure Code in order to introduce the Request for extraordinary mitigation of the sentence, as a procedural mechanism which allows reduction of the life imprisonment based on penological grounds, namely, the progress made in treatment which resulted in reasonable believe that the purpose of punishment could be achieved by sentence shorter that life imprisonment.
