SECOND SECTION. Application no /13 Kęstutis MATIOŠAITIS against Lithuania and 7 other applications (see list appended) STATEMENT OF FACTS

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1 Communicated on 12 December 2013 SECOND SECTION Application no /13 Kęstutis MATIOŠAITIS against Lithuania and 7 other applications (see list appended) STATEMENT OF FACTS A. The circumstances of the cases 1. The facts of the cases, as submitted by the applicants, may be summarised as follows: 1) Application no /13 lodged on 27 March 2013 by Kęstutis MATIOŠAITIS, who was born on 3 February 1961 and is serving a life sentence in Lukiškės Prison (Lukiškių tardymo izoliatorius - kalėjimas) in Vilnius. He is a social pedagogue by profession. On 2 June 1993 the Supreme Court convicted him of aggravated murder and sentenced him to life imprisonment. 2) Application no /13 lodged on 25 June 2013 by Juozas MAKSIMAVIČIUS, who was born on 13 December 1963 and is serving a life sentence in Lukiškės Prison. On 20 December 1993 the Supreme Court found him guilty of aggravated murder and other crimes. He was sentenced to the death penalty. By a decree of 20 April 1995 the State President changed the death sentence to life imprisonment. 3) Application no /13 lodged on 11 September 2013 by Stanislovas KATKUS, who was born on 26 October 1956 and is serving a life sentence in Lukiškės Prison. On 17 August 2001 the Klaipėda Regional Court found him guilty of aggravated murder. 4) Application no /13 lodged on 12 September 2013 by Vladas BELECKAS, who was born on 6 February 1954 and is serving a life sentence in Lukiškės Prison. On 11 September 2000 the Vilnius Regional Court found him guilty of aggravated murder and other crimes.

2 2 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS 5) Application no /13 lodged on 11 September 2013 by Rolandas LENKAITIS, who was born on 31 December 1973 and is serving a life sentence in Lukiškės Prison. He is represented by J. Lenkaitienė, living in Vilnius. On 11 October 2001 the Panevėžys Regional Court found the applicant guilty of aggravated murder and other crimes. 6) Application no /13 lodged on 10 September 2013 by Aidas KAZLAUSKAS, who was born on 21 September 1968 and is serving a life sentence in Lukiškės Prison. On 14 April 1995 the Šiauliai Regional Court found the applicant guilty of aggravated murder. He was sentenced to the death penalty. On 7 August 1995 the Court of Appeal changed the sentence to life imprisonment. 7) Application no /13 lodged on 21 October 2013 by Piotr GERVIN, who was born on 20 November 1984 and is serving a life sentence in Lukiškės Prison. On 23 March 2010 the Klaipėda Regional Court found the applicant guilty of aggravated murder. 8) Application no /13 lodged on 21 October 2013 by Edmundas SVOTAS, who was born on 1 January 1983 and is serving a life sentence in Lukiškės Prison. On 23 March 2010 the Panevėžys Regional Court found the applicant guilty of aggravated murder and robbery. 2. The applicants, as well as their relatives, have addressed the State authorities a number of times, asking for legislative amendments so that the possibility of parole for life prisoners could be established in Lithuanian law. Those pleas and replies by the State institutions may be summarised as follows. 3. By a petition of 19 November 2007, Justinas Buta, one of the persons sentenced to life imprisonment, lodged a petition with the Seimas (the Lithuanian Parliament). He noted that life prisoners were a separate category of convicts. After having served ten years in prison, they could ask for a milder detention regime to be transferred to a correctional home. Nonetheless, the punishment of deprivation of liberty remained for life and they had no right to be released earlier. He also maintained that because the punishment deprivation of liberty remained the same, many persons sentenced to life imprisonment did not ask to be transferred to a correctional home. 4. J. Buta also noted that, once a life prisoner had served a certain number of years, he could be pardoned by the President. In addition, the Seimas could declare an amnesty. However, each time an amnesty was declared after 1990, persons convicted of violent crimes had been excluded. The life prisoner argued that persons like him served their sentences for crimes of different gravity some had been convicted for one murder, others for multiple murders. Accordingly, if a life prisoner had reformed and behaved well, it would seem reasonable that a court could change his life sentence to a shorter duration or even release him on parole. However, in Lithuania this humane possibility was absent. It was also noted that European countries and the European Court of Human Rights considered life imprisonment without possibility of parole to be inhuman.

3 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS 3 5. On 1 April 2008 the Seimas granted the petition and decided to create a working group to consider legislative changes concerning the possibility for life prisoners to be released on parole. 6. By a letter of 19 January 2009, the Ministry of Justice informed life prisoners relatives that it was preparing legislative amendments and consulting other institutions and scientific establishments. In any case, the draft legislation was to be approved by the Government and only then presented to the Seimas. 7. A month later, the Committee on Legal Affairs (Teisės ir teisėtvarkos komitetas) of the Seimas wrote to the applicants that Lithuanian penal legislation was in conformity with the Convention. The Committee nevertheless did not disregard the possibility that because of society s development penal legislation could also evolve. 8. On 12 February 2010 the Ministry of Justice informed the applicants that neither European Union law nor other international treaties binding Lithuania prescribed which punishments, except with regard to capital punishment, should be established in Lithuania, or how those punishments were to be imposed. The Ministry noted that during the first half of 2010 it planned to open a wide ranging discussion among the State institutions, legal experts and scientists on the question whether it was necessary and useful to allow life prisoners to be released on parole. 9. In May 2012 K. Matiošaitis lodged a written complaint with the Vilnius Regional Administrative Court, asking it to annul Article [3] of the Code for Execution of Sentences (Bausmių vykdymo kodeksas, adopted by the Seimas), stipulating that release on parole was not applicable to life prisoners. On 29 May 2012 the court held that administrative courts did not have competence to examine acts of the Seimas. 10. On 18 March 2013 the Ministry of Justice, in reply to the letter of applicant K. Matiošaitis, wrote that, taking into consideration the sensitivity and possible consequences of life prisoners release on parole, the Committee on the Criminal Code (Baudžiamojo kodekso priežiūros komitetas, a group of experts on criminal law) was to evaluate and present most optimal proposals on the issue of execution of life sentences. The Ministry also noted that as of 1 July 2012, Article 77 of the Criminal Code was no longer in force. 11. By a letter of 5 July 2013, the Ministry of Justice informed applicant S. Katkus that on 22 December 2011 the Seimas had amended the Code for Execution of Sentences, including its provisions on release on parole. Nonetheless, the rule that life prisoners were not to be released on parole remained intact. A working group within the Ministry had been created to further discuss the issue. The Ministry also observed that persons sentenced to life imprisonment, once they had served at least ten years of the sentence, could ask the State President for a pardon. That way, the President had on a couple of occasions modified life imprisonment to imprisonment for a certain time. Moreover, the Seimas could declare an amnesty. Lastly, a person could be released from prison if he or she fell terminally ill. The Ministry reiterated its position that neither European Union law nor international treaties obliged Lithuania to regulate the issue in one way or another, because penal policy was the State s own prerogative.

4 4 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS 12. By a letter of 18 July 2013, the Committee on Legal Affairs of the Seimas informed applicant S. Katkus that the question of release on parole of life prisoners, who because of their behaviour were no longer dangerous to others, was very complicated and had wide social, legal and moral repercussions. That being so, the issue was being discussed at the Ministry of Justice, so that the most optimal suggestions for legal reform could be presented. The Committee was confident that the system of criminal punishments, as established in the Criminal Code, was in line with international standards. B. Relevant domestic law 13. In Lithuania, life imprisonment may be imposed for the most serious crimes genocide, treatment of persons prohibited by international law, organising a criminal association, acts of terrorism, aggravated murder and other crimes. 14. The Criminal Code provides that a person who committed a criminal act may be released from a penalty where, before a judgment is passed by a court, he contracts a terminal illness rendering him unable to serve the sentence. In such a case, the court shall, when passing a judgment of conviction, impose a penalty upon this person and release him from serving the sentence. Similarly, a person who contracts a terminal illness following the passing of a judgment may be released from serving the undischarged term of the sentence. The court shall decide this issue taking into consideration the gravity of the committed criminal act, the personality of the convicted person, his conduct while serving the sentence, the nature of the illness and the period of the sentence already served. Lastly, a person who, following the commission of a criminal act or imposition of a penalty, starts to suffer from a mental disorder rendering him incapable of understanding the nature of his actions or controlling them shall be released from serving the undischarged term of the sentence. When releasing this person from a penalty, the court shall decide whether to subject him to compulsory medical treatment. In the event of convalescence of this person, he may be ordered to serve the undischarged term of the sentence (Article 76). 15. Under Article 78 of the Criminal Code, a person who commits a crime may be released from serving the entire or a part of the sentence by an amnesty act passed by the Seimas. 16. A convicted person may also be released from serving the entire or a part of the sentence where the State President grants a pardon (Article 79 of the Criminal Code). Life prisoners may ask for a pardon after they have served ten years of the sentence. Until October 1992, pardon could be granted by the Presidium of the Supreme Council (Lithuanian Parliament at that time). 17. Article 77 of the Criminal Code provided that release on parole and replacement of the undischarged term of custodial sentence with a more lenient penalty was not to apply to a person sentenced to life imprisonment. This provision was repealed on 1 July 2012, when the Law on Release on Parole (Probacijos įstatymas) came into force. That Law establishes the

5 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS 5 rules on resettling convicted persons in society, aimed at preventing them from reoffending. The Law does not mention persons serving life sentences. 18. The Code for Execution of Sentences provides that prisoners who have shown good behaviour and who therefore could correct themselves without being isolated from the society, but under the authorities supervision, may be released on parole, by a court decision (Article 157). Nonetheless, life prisoners and prisoners in respect of whom the death sentence has been changed to life imprisonment may not be released on parole (Article (3)). Life prisoners serve the first ten years of their punishment in prison. Afterwards, if their behaviour and security requirements so allow, and upon the recommendation of the prison administration, they may be transferred to a correctional home to serve the remaining part of the sentence. In prison, life prisoners are held one in a cell, or, if they agree, two in one cell. In a correctional home life prisoners are held separately or isolated from other prisoners (Article 165). As concerns teaching a profession, in respect of life prisoners it may be provided for only in correctional home (Article 167 2). Life prisoners may work (Article 167 3). 19. As of 1990, the Seimas has declared an amnesty seven times, on occasion, inter alia, of the re-establishment of Lithuania s independence or to celebrate adoption of the Lithuanian Constitution. Amnesty was applied to a great variety of criminal acts, most often to non-intentional or less serious crimes. Serious intentional crimes, for example, aggravated murder, have been excluded from amnesty Acts. Amnesty Acts of 1998, 2000 and 2002 explicitly did not apply to life prisoners and those sentenced to death. C. International materials 1. Council of Europe texts 20. Recommendation (2003)22 of the Committee of Ministers of the Council of Europe on conditional release recommends inter alia that governments of member states: 1. introduce conditional release in their legislation if it does not already provide for this measure; 2. be guided in their legislation, policies and practice on conditional release by the principles contained in the appendix to this recommendation. The appendix provides: 1. For the purposes of this recommendation, conditional release means the early release of sentenced prisoners under individualised post-release conditions. Amnesties and pardons are not included in this definition Conditional release should aim at assisting prisoners to make a transition from life in prison to a law-abiding life in the community through post-release conditions and supervision that promote this end and contribute to public safety and the reduction of crime in the community. 4.a. In order to reduce the harmful effects of imprisonment and to promote the resettlement of prisoners under conditions that seek to guarantee safety of the outside

6 6 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS community, the law should make conditional release available to all sentenced prisoners, including life-sentence prisoners... The explanatory memorandum to the Recommendation adds: Life-sentence prisoners should not be deprived of the hope to be granted release either. Firstly, no one can reasonably argue that all lifers will always remain dangerous to society. Secondly, the detention of persons who have no hope of release poses severe management problems in terms of creating incentives to co-operate and address disruptive behaviour, the delivery of personal-development programmes, the organization of sentence-plans and security. Countries whose legislation provides for real-life sentences should therefore create possibilities for reviewing this sentence after a number of years and at regular intervals, to establish whether a life-sentence prisoner can serve the remainder of the sentence in the community and under what conditions and supervision measures. 21. Recommendation (2003)23 of the Committee of Ministers on the management by prison administrations of life sentence and other long-term prisoners, where relevant, provides as follows: General objectives 2. The aims of the management of life sentence and other long-term prisoners should be: to ensure that prisons are safe and secure places for these prisoners and for all those who work with or visit them; to counteract the damaging effects of life and long-term imprisonment; to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law-abiding life following their release.... Special categories of life sentence and other long-term prisoners Special management care and attention should be given to the particular problems posed by prisoners who are likely to spend their natural life in prison. In particular, their sentence planning should be sufficiently dynamic and allow them to benefit from participation in meaningful activities and adequate programmes including interventions and psychosocial services designed to help them cope with their sentence.... Managing reintegration into society for life sentence and other long-term prisoners 33. In order to enable life sentence and other long-term prisoners to overcome the particular problem of moving from lengthy incarceration to a law-abiding life in the community, their release should be prepared well in advance and take particular account of the following: the need for specific pre-release and post-release plans which address relevant risks and needs; due consideration of the possibility of achieving release and the continuation postrelease of any programmes, interventions or treatment undertaken by prisoners during detention; the need to achieve close collaboration between the prison administration and post-release supervising authorities, social and medical services.

7 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS The granting and implementation of conditional release for life sentence and other long-term prisoners should be guided by the principles set out in Recommendation Rec(2003)22 on conditional release. 22. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT ) prepared a report on Actual/Real Life Sentences dated 27 June 2007 (CPT (2007) 55). The report reviewed various Council of Europe texts on life sentences, including recommendations (2003) 22 and 23, and stated in terms that: (a) the principle of making conditional release available is relevant to all prisoners, even to life prisoners ; and (b) that all Council of Europe member states had provision for compassionate release but that this special form of release was distinct from conditional release. 23. It noted the view that discretionary release from imprisonment, as with its imposition, was a matter for the courts and not the executive, a view which had led to proposed changes in the procedures for reviewing life imprisonment in Denmark, Finland and Sweden. The report also quoted with approval the CPT s report on its 2007 visit to Hungary in which it stated: [A]s regards actual lifers, the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release. 24. The report s conclusion included recommendations that: no category of prisoners should be stamped as likely to spend their natural life in prison; no denial of release should ever be final; and not even recalled prisoners should be deprived of hope of release. 2. The International Criminal Court 25. Article 77 of the Rome Statute of the International Criminal Court allows for the imposition of a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person. Such a sentence must be reviewed after twenty-five years to determine whether it should be reduced (Article 110). COMPLAINTS First, relying on some of the international materials set out above and the Court s decision in Einhorn v. France (no /01, 27, ECHR 2001-XI), the eight applicants complain that the imposition of life imprisonment means that their sentences are, in effect, irreducible and in violation of Article 3 of the Convention. They note that, once imposed, a life sentence is not subject to review by the courts. The applicants admit that a person who has committed a crime is dangerous. However, with time he or she could become a law-abiding citizen and no longer pose a danger to others. Therefore, it would be inhumane and meaningless to hold that person in prison. Convicted persons should equally have a hope to leave prison in the future, thus inspiring them to rehabilitate, learn and behave in accordance with the societal norms. For the applicants, life imprisonment,

8 8 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS without a possibility of parole, could be described as a social death sentence. To give an example, the applicant K. Matiošaitis states that for the last twenty years he spends his time in a six square metre cell, where he stays twenty-four hours a day, except for a one and a half hour s walk when he is also isolated from other prisoners. The applicants also maintain that life imprisonment also is the only exception from other criminal punishments, because it does not have the aim to rehabilitate the prisoner. The applicants further argue that such an option as an amnesty by the Seimas has political connotations. It is usually declared in connection with certain political events, for example on the occasion of the re-establishment of Lithuania s independence or when the Lithuanian Constitution was adopted. Amnesty therefore is not a response to personal improvement of the prisoner. As to Presidential pardon, it is based on the President s unilateral decision. Most importantly, both of those options are discretionary; a prisoner takes no part in those proceedings and may not appeal against the act of amnesty or the President s refusal to grant a pardon to a court. Lastly, even though a court may release a prisoner on compassionate grounds when he or she is terminally ill, this is not sufficient to make that sentence de facto reducible. The first applicant also complains that he is not able to obtain professional education, because life prisoners education may be provided only in a correctional home. However, for at least the first ten years of their sentence life prisoners serve their punishment in Lukiškės Prison and thus are barred from professional education, in breach of Article 2 of Protocol No. 1 to the Convention.COMMON QUESTIONS 1. Can a life sentence, when taken with the State President s right to pardon, be considered as an irreducible life sentence within the meaning of Kafkaris v. Cyprus [GC], no /04, 103, ECHR 2008 (also see Iorgov v. Bulgaria (no. 2), no /02, 48-60, 2 September 2010)? 2. The Government are requested to provide the following information: - how many prisoners are currently serving life sentences in Lithuania? - since 1990, have any life prisoners been released because of amnesty declared by the Seimas, by a Presidential (or Presidium s of the Supreme Council) pardon or for health reasons? 3. The Government are also requested to provide information as to the stage at which the issue of life prisoners release on parole is being considered by the Lithuanian authorities, so that the most optimal suggestions for legal reform be presented (see the letter of 18 July 2013, the Committee on Legal Affairs of the Seimas to applicant S. Katkus). 4. Each of the applicants is requested to provide information as to whether he has ever asked for a Presidential pardon and, if so, what the President s decision was. Each applicant is also requested to provide information as to whether he has ever asked for a transfer to a correctional home from Lukiškės Prison.

9 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS 9 5. In conclusion, in respect of each applicant, has there been a violation of Article 3 of the Convention (see Vinter and Others v. the United Kingdom [GC], nos /09, 130/10 and 3896/10, 68 and , ECHR 2013 (extracts))? CASE SPECIFIC QUESTION As regards the applicant K. Matiošaitis, has there been a violation of Article 2 of Protocol No. 1 to the Convention on account of him not being able to receive professional education in prison?

10 10 MATIOŠAITIS v. LITHUANIA AND OTHER APPLICATIONS STATEMENT OF FACTS APPENDIX No. Application no. Lodged on Applicant name and date of birth Date of conviction and crime committed /13 27/03/2013 Kęstutis MATIOŠAITIS 03/02/ /13 25/06/2013 Juozas MAKSIMAVIČIUS 13/12/ /13 11/09/2013 Stanislovas KATKUS 26/10/ /13 12/09/2013 Vladas BELECKAS 06/02/ /13 11/09/2013 Rolandas LENKAITIS 31/12/ /13 10/09/2013 Aidas KAZLAUSKAS 21/09/ /13 21/10/2013 Piotr GERVIN 20/11/ /13 21/10/2013 Edmundas SVOTAS 01/01/ June 1993, the Supreme Court, aggravated murder 20 December 1993, the Supreme Court, aggravated murder. Initial sentence death penalty, on 20 April 1995 the State President amended the punishment to life imprisonment 17 August 2001, the Klaipėda Regional Court, aggravated murder 11 September 2000, the Vilnius Regional Court, aggravated murder and other crimes 11 October 2001, the Panevėžys Regional Court, aggravated murder and other crimes 14 April 1995, the Šiauliai Regional Court, aggravated murder. Initially convicted to death penalty, on 7 August 1995 the Court of Appeal changed the sentence to life imprisonment 23 March 2010, the Klaipėda Regional Court, aggravated murder 23 March 2010, the Panevėžys Regional Court, aggravated murder and other crimes