The Constitutional Court has ruled, in the case of Brian Vella v. The Attorney General, that life sentences without parole which cannot be reviewed violate Article 3 of the European Convention on Human Rights: that no one shall be subjected to inhuman or degrading treatment or punishment.
What tipped the balance was Vinter and Others v. The United Kingdom, decided by the European Court of Human Rights in 2013. The Grand Chamber gave an evolutive interpretation of Article 3 as encompassing what might be described as “the right to hope”. “In the context of a life sentence Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.” In her concurring opinion, Judge Ann Power-Forde argued that “long and deserved though their prison sentences may be, they retain the right to hope that, someday, they may have atoned for the wrongs which they have committed”. The facts peculiar to the case raised the question whether English law violated Article 3 since it did not provide any real opportunity to review life-long sentences without parole. This was held so, notwithstanding the discretion of the Secretary of State for Justice to release a prisoner sentenced to a whole life order if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds. The Court noted that these ‘exceptional circumstances’ were narrowed down by the ‘Lifer Manual’ to those prisoners who were terminally ill or physically incapacitated.
Vinter had a knock-on effect on subsequent actions brought before the ECtHR, such as in Trabelsi v. Belgium (2015), only to be ‘faltered’ by Hutchinson v. The United Kingdom in 2017. In Hutchinson, the Chamber cited R v. McLoughlin (Court of Appeal of England and Wales), recognising that the Secretary of State “cannot fetter his discretion by taking into account only the matters set out in the Lifer Manual”, therefore asserting that the Secretary of State was bound to exercise his power in a manner compatible with Article 3. For these reasons, the ECtHR held that there had not been a violation of the Convention.
Against this background, Brian Vella v. The Attorney General has broken new ground in that it found that the Presidential Pardon, also known as the Prerogative of Mercy, enshrined in Article 93 of the Constitution of Malta, does not provide for an efficacious mechanism to safeguard a person’s right not be subjected to inhuman or degrading treatment, for the reason that it does not hinge on prescribed criteria or clear established procedures. In addition, adopting the reasoning of the ECtHR in Vinter, the Constitutional Court found that, as the law stands, it does not provide for the review of life-long sentences before the Parole Board, or otherwise.
Therefore, the Court held that a violation of Article 3 subsists and ordered that the applicant’s case be brought before the Parole Board on the lapse of 25 years from the date of the judgement, unless a law is enacted which overrides such.
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