The actual life sentence (ALS) is the harshest penalty in our legal system which can be applied only to criminals who pose the greatest danger to society. However, the actual life sentence, i.e. lifetime imprisonment without any review or release could infringe the prohibition of cruel, inhuman or degrading treatment, since it deprives the convicted persons of their dignity by making any form of re-socialisation impossible. It is a cardinal human rights issue. The dignity of the person being subjected to actual life sentence can only be secured if during the detention convicts can hold on to the realistic hope of regaining their liberty in the future.
ALS applied globally
Some form of an actual life sentence is known to the majority of the world’s legal systems, the difference between them is the possibility of release. The University of Nottingham issued a summary paper on the subject (Life imprisonment – A policy briefing),) moreover, the topic is also discussed in a book by Dirk van Zyl Smit and Catherine Appleton, entitled: Life Imprisonment – A Global Human Rights Analysis. In most countries, the examination of eligibility for parole and consequently, the release itself is secured for inmates after a certain period of time.
ALS and the Constitutional Court
The Constitutional Court established in its decision no. 66/1991. (XII. 21.) that even the lawful deprivation of liberty can cause unjustified harm and the individual measures restricting personal liberty can only be accepted as constitutional, if the restriction is necessary and proportionate to the constitutionally accepted aim. In case of an actual life sentence, with the passing of the time, we may reach a different conclusion concerning the aim of restricting the convict’s liberty, compared with the conclusion at the time of the sentencing. To put it simply: it cannot be foreseen at the time of sentencing whether 30, 40 or even 50 years later the perpetrator of a crime remains to be just as dangerous to society that it would warrant the application of the most severe criminal law sanction.
It goes without saying that it can be an important goal of the punishment to „render the perpetrator harmless”, in other words making him incapable of committing another crime by taking him completely out of society by incarceration; however, this goal can be achieved also by keeping the possibility of conditional release. The review does not mean that the person is released. It only renders it possible to examine the justification of the imprisonment at a certain date and of course those whose incarceration remains to be justified can be kept behind bars.
The option of ALS has been available in Hungary since 1 March 1999 and the possibility of the actual life sentence is also enshrined in the Fundamental Law . The Criminal Code provides the option of the actual life sentence for 22 types of crimes, out of which conditional release is excluded for 18. These include the most serious cases of homicide: crimes committed with extreme cruelty or with a malicious motive, as well as crimes against humanity and certain cases of human trafficking. In addition to the above, the ALS can be imposed on those who receive an actual life sentence and are considered violent repeat offenders or committed any of the above crimes in the framework of a criminal organisation.
The Hungarian Helsinki Committee turned to the Hungarian Constitutional Court in March 2009, claiming the regulation allowing the actual life sentence to be quashed. However, the Constitutional Court did not adjudicate the matter until 1 January 2012, and, consequently, the procedure ceased to exist (https://helsinki.hu/wp-content/uploads/MHB_ABinditvany_tesz.pdf). The reason behind the termination of the procedure was that the “legal background changed fundamentally compared to the situation at the time of lodging the complaint”.
ALS before the European Court of Human Rights
The prohibition of torture and inhuman treatment enshrined in Article 3 of the European Convention on Human Rights requires member states to make actual life sentences reviewable. This review must take into consideration all the changes in the convict’s life, based on which the continuation of the deprivation of liberty cannot be justified.
In the Vinter and others case (no. 66069/09, judgement of 9 July 2013) the ECHR argued that the actual life sentence may fall within the scope of Article 3 if it is not reviewable and cannot be reduced in any way. It is important to underline that member states are entitled to sentence adult perpetrators to actual life sentence, such sentencing in itself is not incompatible with Article 3 of the Convention. However, the actual life sentence can raise certain issues under Article 3 of the Convention based on the case law of the Court, in particular when the sentence is not reducible – in which case the convict does not even have the theoretical chance to release, or, to be more precise to have his imprisonment be reviewed within a reasonable time.
Consequently, when deciding whether an actual life sentence is reducible, the ECHR examines whether the inmate has any hope of being released. If the national regulation offers a realistic possibility for the review, change or termination of the actual life sentence, or for conditional release, than Article 3 of the Convention is not violated.
László Magyar v. Hungary
Even though the so called obligatory pardon procedure was added to the Prison Service Code in 2014 with a view of the above Strasbourg decisions, which requires that, after spending 40 years in prison, a committee (the Pardon Committee whose members are appointed by the President of the Curia) examines whether the continued detention is justified, this legal tool is not in compliance with the Convention. The ECHR in the Vinter case and by citing it in the László Magyar v. Hungary (73593/10) case clearly established that a convicted person must be given a realistic chance of release after spending no more than 25 years behind bars. This is the maximum length of time that can be foreseen by the human mind and soul within which reasonable plans can be made for a person’s future life. Contrary to this, the effective stipulation of 40 years in Hungarian law is an unforeseeable period which seems unrealistic for inmates and does not have enough force to influence their behaviour, given that they will be very old at the time of the first review. Provided that they live to see the day at all– in light of Hungary’s life expectancy statistics it is highly unlikely – the 40-year period renders the punishment of the convict to an ALS without the possibility of parole.
The situation of life sentence after the Magyar case
After this, in the T. P. and A. T. v. Hungary case (nos. 37871/14 and 73986/14) the ECHR established again the violation of Article 3 of the Convention with regard to the 40-year review period, since the deprivation of liberty without the prospect of release bears the risk that the person will never feel any remorse.
As a consequence, the lifetime incarceration of those who are subjected to ALS raises numerous problems. How can law-enforcement fulfil its complex pedagogical and educational duty, aimed at helping convicts “become useful members of society”, when it comes to convicts of actual life sentences? This question is raised in the paper “Held captive by time”, written by the former warden of the Szeged Prison, Pál Kiszely and István Nagy first leutenant. How can the self-esteem of an inmate be upheld, his sense of responsibility improved and how can he be prepared to live according to social expectations by feeling remorse for what he had done?
Unfortunately it is not possible without the prospect of release, since the ALS lacks one of the most important aims of criminal sanctions, the resocialisation of the perpetrator, therefore, it contradicts the idea that human beings can change by aiming to be good. Law-enforcement is a goal-oriented activity, but this goal is missing from the ALS-judgements and those who are convicted to such imprisonment have nothing to lose. Due to their closed, isolated environment, their connection with the outside world disappears and they lose the desire for a meaningful life.
The negative effects of the deprivation of liberty, the phenomenon of prisonisation is discussed in numerous psychological studies. The actual life sentence constantly regenerates these negative effects on the personality and it takes away the chance of rehabilitation, depriving human beings of letting their true personality evolve. The deprivation of liberty without the prospect of release bears the risk that the person never feels remorse, since no matter what he does, whatever improvement he achieves during rehabilitation, his punishment remains the same.
In December 2018 the Penal Reform International held a forum at the University of Nottingham about the actual life sentence with the aim to develop strategies to reform it in time for the United Nations Congress on Crime Prevention and Criminal Justice to be held in 2020, which is all the more important, since the UN dealt with the actual life sentence last in 1994.
Until Hungarian laws and regulations on actual life sentence are changed in a way that the possibility of parole is provided after 25 years, we can turn to the Constitutional Court, and after the domestic remedies are exhausted, we can lodge a complaint with the European Court of Human Rights similarly to other cases where we complain about state actions breaching the prohibition of torture and inhuman or degrading treatment.