Kupinskyy v. Ukraine (European Court of Human Rights)

Information Note on the Court’s case-law
November 2022

Kupinskyy v. Ukraine – 5084/18

Judgment 10.11.2022 [Section V]

Article 7
Article 7-1
Heavier penalty

Conversion, upon prisoner’s transfer, of a foreign reducible life sentence into an irreducible one due to unavailability of parole for life prisoners in his home State: violation

Article 3
Degrading punishment
Inhuman punishment

Conversion, upon prisoner’s transfer, of a foreign reducible life sentence into an irreducible one due to unavailability of parole for life prisoners in his home State: violation

Facts – In 2002, the applicant, a Ukrainian national, was sentenced in Hungary to life imprisonment with the possibility of seeking release on parole after serving twenty years of imprisonment and being deported. In 2007 he was transferred to Ukraine to serve his sentence. The Ukrainian courts recognised the sentence imposed on the applicant by the Hungarian courts.

In 2016-2021, the Ukrainian courts refused several requests for release on parole on the ground that the applicant was serving his sentence in accordance with Ukrainian legislation which did not provide for release on parole for life prisoners. The applicant appealed unsuccessfully.

In September 2021, the Constitutional Court of Ukraine declared the relevant domestic-law provision on release on parole unconstitutional in so far as it did not apply to life prisoners.

Law – Article 3:

The applicant’s situation had not changed for the purposes of Article 3 with the adoption of the judgment of the Constitutional Court taken alone; a judgment, which, moreover, had been delivered over three years after the introduction of his application and after the refusal of numerous release requests. Indeed, the procedure and manner of the application of the rule on release on parole to life prisoners had not yet been established, and in the absence of such rules and procedure the domestic courts had considered that they had no jurisdiction to decide on the release on parole of life prisoners. Thus, the Court’s reasoning in Petukhov v. Ukraine (no. 2) was equally pertinent to the present case.

Conclusion: violation (unanimously).

Article 7:

(a) Applicability – In the Court’s established case-law a distinction was drawn between a measure that constituted in substance a “penalty” and a measure that concerned the “execution” or “enforcement” of a “penalty”; Article 7 applied only to the former. Whether the case concerned a change in a regime for release on parole within the country or such a change in a regime took place as a result of transfer of prisoners, such a regime related to the execution of a sentence and thus excluded the application of Article 7.

In particular, in cases that concerned the transfer of prisoners (Szabó v. Sweden (dec.); Müller v. the Czech Republic (dec.)), despite the fact that prospects of release on parole in the administering State were less favourable than in the sentencing State, the transfer decisions remained within the scope of execution of penalties and had not amounted to a “penalty” itself within the meaning of Article 7. The same conclusion had been reached by the Court with respect to decisions on conversion of sentences in the administering State, when the penalty remained the same while the rules on release on parole in the administering State were stricter than in the sentencing State.

However, in practice the distinction between a “penalty” and the “execution” or “enforcement” of the “penalty” might not always be clear cut. The concept of “penalty” in Article 7 was autonomous in scope. The wording of the second sentence of Article 7 § 1 indicated that the starting point in any assessment of the existence of a penalty was whether the measure in question was imposed following conviction for a “criminal offence”. Other factors that might be taken into account as relevant in this connection were the nature and purpose of the measure; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity.

Unlike the cases in which a change in a regime for release on parole had been found to belong exclusively within the domain of the execution of a sentence, in the present case the applicant’s transfer and, in particular, the manner in which his penalty had been converted, ultimately amounted to a change from a regime for release on parole to no availability of parole at all. The applicant’s sentence imposed as a result of the conversion had been irreducible under current Ukrainian law. Thus, the principle difference between the present case and previous cases on transfer of prisoners was that the latter concerned the terms for granting the parole in the State to which the prisoner had been transferred, while in the former there was an issue of unavailability of parole as a matter of law. The Hungarian legislation differentiated between reducible and irreducible life sentences and provided for both. In the applicant’s case, the domestic courts in Hungary had explicitly decided to impose on him a reducible life sentence and not an irreducible one.

Irreducible and reducible life sentences differed as to their scope, and the difference had been significant enough for this Court to find the former incompatible with the requirements of the Convention, while the latter had been found compatible. Such distinction reinforced the importance of the ground of rehabilitation, which was central for European penal policy nowadays, as reflected in the practice of the Contracting States, in the relevant standards adopted by the Council of Europe, and in the relevant international materials.

The Government had relied heavily on the fact that the transfer and conversion of the sentence of the applicant had taken place pursuant to another international treaty, the Convention on the Transfer of Sentenced Persons and its Additional Protocol, and they had been responsible only for the enforcement of the sentence under the said Convention. The Court was not precluded, however, from assessing whether the State had complied with its Convention obligations when implementing international legal assistance treaties. Regarding the autonomous concept of “penalty” within the meaning of Article 7, the Court did not consider that its interpretation could be substantially different depending on whether the measure claimed to amount to a new “penalty” had been the result of the operation of domestic law only or had also involved the application of international treaties that bound the respondent State.

The Court therefore concluded that by converting the applicant’s original reducible life sentence to the irreducible life sentence under Ukrainian law, the domestic courts in the particular circumstances of the present case had gone beyond the mere measures of enforcement and had changed the scope of the applicant’s penalty.

Conclusion: Article 7 applicable.

(b) Merits – The penalty “that had been applicable at the time the criminal offence had been committed”, within the meaning of Article 7, had been reducible life sentence. The domestic authorities, by denying the applicant the real possibility of seeking release on parole, had confirmed that they had converted his original reducible sentence into a de facto and de jure irreducible life sentence and thus had changed the scope of the original punishment to the applicant’s detriment, by imposing a heavier penalty.

Conclusion: violation (unanimously).

Article 41: EUR 2,500 in respect of non-pecuniary damage.

(See also Szabó v. Sweden (dec.), 28578/03, 27 June 2006, Legal summary; Müller v. the Czech Republic (dec.), 48058/09, 6 September 2011, Legal summary; Del Río Prada v. Spain [GC], 42750/09, 21 October 2013, Legal summary; Petukhov v. Ukraine (no. 2), 41216/13, 12 March 2019, Legal summary)

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