Denying the right to hope – whole life sentence in Hungary

By Nóra Novoszádek, Senior Legal Officer, Hungarian Helsinki Committee

“I do not really trust other people. I do not want them to lie to my face and say how sorry they are for me that I am serving a whole life sentence, and then talk behind my back about why I do not rather hang myself” – says “Samu”, a detainee serving life imprisonment without the possibility of parole in Hungary, about his fellow inmates when explaining why he does not want to be transferred to an “ordinary” unit from the one designed specifically for whole lifers. There are currently 55 inmates in Hungary in a situation similar to him, without any real prospect of ever being released.

Whole life sentence in Hungary

 Photo:  Hungarian Helsinki Committee

Photo: Hungarian Helsinki Committee

The story of whole life sentence, dubbed as “lying eight” in prison slang after the symbol of infinity, started in 1993 in Hungary, when the Parliament introduced into the Criminal Code the option of excluding the possibility of parole when imposing a life sentence. In 1998 the scope of this possibility was extended considerably. According to the rules currently in force, when imposing a life sentence, the judge may decide to exclude the possibility of parole in the case of certain criminal offences. Moreover, under certain circumstances, e.g., when the defendant is categorised as a so-called “violent multiple recidivist” (which can happen quite easily), the law obliges the judge to do so.

The issue is not free of politics of course: for example, before the adoption of the new constitution of Hungary (the Fundamental Law) in 2011, one of the 12 questions contained in the so-called “National Consultation” questionnaire sent by the Government to the public was whether whole life sentence should be included in the Criminal Code. The Hungarian Helsinki Committee (HHC) and its partners considered this and some other questions in the consultation to constitute a populist wish-list. Subsequently, the possibility of imposing a whole life sentence finally made its way into the Fundamental Law.

In turn, Hungary’s Constitutional Court has never been eager to decide on the issue. HHC submitted an actio popularis request to the Constitutional Court in 2009, requesting the constitutional review of the legal provisions allowing for imposing whole life sentence, and requested the Constitutional Court to abolish these provisions because they violate human dignity. In addition, there has been at least one other such review request pending before the Constitutional Court since 2004. However, these requests were not decided upon for years. The issue was finally put on the agenda of the Constitutional Court and was debated 11 times in 2010/11, but no decision was reached in the case. Eventually, the review requests were terminated altogether for procedural reasons when the possibility of submitting actio popularis requests in Hungary was abolished as of 1 January 2012.

ECtHR decisions establishing the violation of Article 3 of the Convention

In May 2014, the European Court of Human Rights (ECtHR) assessed for the first time the compatibility of the respective Hungarian rules with Article 3 of the European Convention on Human Rights (prohibiting inhuman or degrading treatment or punishment) in the László Magyar v. Hungary case. The Hungarian Government in this case argued that because the President (with a counter-signature by a Minister) may – in theory – exercise pardon (clemency) also in the case of whole life prisoners, the whole life sentence of the applicant in the case was reducible both de jure and de facto – such reducibility and a real prospect of release being the cornerstone of the ECtHR’s case-law when assessing the compatibility of a life sentence with the Convention.

However, the ECtHR – in line with HHC’s standpoint submitted as a third-party intervener – concluded that László Magyar’s life sentence indeed violated the Convention, since it was “not persuaded that the institution of presidential clemency, taken alone (without being complemented by the eligibility for release on parole) and as its regulation presently stands, would allow any prisoner to know what he or she must do to be considered for release and under what conditions”. The ECtHR also concluded that the case “discloses a systemic problem” and that Hungary “would be required to put in place a reform […] of the system of review of whole life sentences”.

After the judgment in the László Magyar case, Hungary introduced a “mandatory pardon procedure” for detainees serving a whole life sentence, which is to be conducted ex officio after 40 years of detention. In the course of the procedure, a judicial board adopts a recommendation on the granting of clemency (pardon), but the procedure concludes with the fully discretional clemency decision of the President of the Republic.

The Hungarian Constitutional Court subsequently used this development to back down from deciding on the issue once again: the majority of the judges ruled in January 2015 that due to the above changes in the law, the case became “obsolete” and so did not decide on it on the merits. This resolution was harshly criticized by many. Later that year, in July 2015, a representative of the Ministry of Justice stated at a press conference that the Government had trust in the President and the judiciary and, although they would have the possibility to do so, trusts “they will never release murderers who killed children, old and helpless persons, innocent victims”.

The ECtHR examined the conformity of the new rules with the Convention in the T.P. and A.T. v. Hungary case in October 2016. It concluded again that it was not persuaded that “the applicants’ life sentences can be regarded as reducible” and established the violation of Article 3 – again in accordance with HHC’s third-party intervention and its Rule 9(2) communication submitted to the Council of Europe’s Committee of Ministers with regard to the László Magyar case earlier that year. Concerns of the Court included that the 40-year waiting period “unduly delays the domestic authorities’ review” and that the new legislation “does not oblige the President … to assess whether continued imprisonment is justified on legitimate penological grounds” and fails to “oblige him or the Minister of Justice […] to give reasons for the decision, even if it deviates from the recommendation of the [judicial] Clemency Board.”

Lack of execution

The T.P. and A.T. judgment became final in March 2017. However, the Government has not taken any general measures to date to address the respective rights violations and has not amended the law. In addition, as it was also pointed out by HHC at the NGO briefing organised by the European Implementation Network (EIN) in May 2018 for representatives of Council of Europe member states, adequate individual measures are also missing. T.P. and A.T. remain in life imprisonment without parole, in direct contrast with the ECtHR’s decision, while László Magyar will be first eligible for parole only after 40 years of imprisonment served, which is a much longer period than what is deemed acceptable by the ECtHR (i.e., 25 years). HHC also pointed out at the EIN briefing that the Government, as it states in its Action Plan, is wrong to state that the outcome of pending constitutional complaints “needs to be awaited before adequate legislative measures can be taken” or that judgments in currently pending cases before the ECtHR would have any effect on the execution of judgments in the László Magyar group of cases.

The execution of the above judgments was first examined by the Committee of Ministers in June 2018. The Committee called on the Hungarian authorities to align their legislation with the Court’s case-law and address the concerns raised by the ECtHR “without further delay”.

HHC and others now eagerly await the Hungarian Government’s next steps regarding the issue.