This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 38

Rembrandt Harmensz. van Rijn St. Paul in Prison 1627

• Lack of possibility of review of the life sentence imposed on the applicant
• The refusal by the Court of Cassation to refer a question to the Constitutional Council for a preliminary ruling did not breach the European Convention on Human Rights

Lack of possibility of review of the life sentence imposed on the applicant - Violation of Article 3 - case of Kaytan v. Turkey - The applicant, Hayati Kaytan, is a Turkish national who was born in 1968 and is currently serving a life sentence following his conviction in 2005 for terrorist activities. Mr Kaytan was arrested in Syria following his indictment for being a member of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation, and handed over to the Turkish authorities in August 2003. He was then interrogated by gendarmes and the prosecuting authorities and admitted to having been a member of the PKK and involved in several armed attacks. He later retracted his statements at trial, alleging that he had been put under psychological pressure during his interrogation. He was ultimately convicted of seeking to destroy the unity of the Turkish State and to remove part of the country from the State’s control and sentenced to “aggravated” life imprisonment. His conviction was upheld on appeal in January 2005. Relying in particular on Article 3 (prohibition of inhuman or degrading treatment), he notably alleged that his sentence of life imprisonment without possibility of review amounted to inhuman punishment.

"63. The Court notes that the applicant has been sentenced to an “aggravated life sentence” for terrorist activities seeking to destroy the unity of the State and to remove part of the country from the State’s control. Such a penalty means that he will remain in prison for the rest of his life, regardless of any consideration relevant to his dangerousness and without the possibility of release on parole even after a period of detention (see mutatis mutandis, Öcalan (no. 2), cited above, §§ 182-186, the findings of the Court as to the complaints under Article 7 of the Convention).

64. The Court notes that the applicant was sentenced under Article 125 of the former Criminal Code, and according to Article 107 of Law No. 5275 on the enforcement of sentences and security measures, his situation is clearly excluded from the scope of release on parole or prescription (Öcalan (no. 2), cited above, § 202).

65. Although release on health grounds is foreseen in domestic law, the Court recalls that such a possibility, or amnesty, was not considered as corresponding to the notion of “prospect of release” on legitimate penological grounds (Vinter and Others, cited above, § 129, and Öcalan (no. 2), cited above, § 203).

66. On the other hand, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration (Vinter and Others, cited above, § 122).

67. Thus, the Court considers that there is no element or argument in the case-file, or any example of national court decisions, which would allow it to depart from its conclusion in the above-mentioned Öcalan (no. 2) judgment. The Court therefore holds that there has been a breach of Article 3 of the Convention.

68. The Court considers it also necessary to underline the fact that the applicant has not sought to argue that there are no longer any legitimate penological grounds for his continued detention, and reiterates that the finding of a violation cannot be understood as giving him the prospect of imminent release (Vinter and Others, cited above, §§ 108, 120 and 131, Öcalan (no. 2) cited above, § 207; see also Harakchiev and Tolumov, cited above, §§ 247‑268)."

The refusal by the Court of Cassation to refer a question to the Constitutional Council for a preliminary ruling did not breach the European Convention on Human Rights - case of Renard v. France a.o. - applications inadmissible - The case concerned the issue whether the Court of Cassation’s refusal to refer questions to the Constitutional Council for a preliminary ruling on constitutionality was compatible with the right of access to a court under Article 6 § 1 of the European Convention on Human Rights. Under the preliminary ruling procedure, applicants may ask the ordinary courts to request a preliminary ruling from the Constitutional Council on a question contesting the compatibility with the rights and freedoms guaranteed by the Constitution of a legal provision theoretically applicable to pending proceedings. The Court of Cassation held that the questions raised by the applicants were not new and lacked serious merit, and decided not to refer them to the Constitutional Council. The Court observed that the Court of Cassation had given reasons for its decisions in Mr Renard’s case based on the grounds laid down by domestic law for refusing to refer a question for a preliminary ruling. It further noted that the provisions in question granted a degree of discretion to the Court of Cassation and the Conseil d’État, with the aim of regulating access to the Constitutional Council. The Court concluded that there had been no unjustified interference with the right of access to the Constitutional Council, and declared the complaints inadmissible as being manifestly illfounded.