FOURTH SECTION

CASE OF T.P. AND A.T. v. HUNGARY

(Applications nos. 37871/14 and 73986/14)

JUDGMENT

STRASBOURG

4 October 2016

This judgment will become final in the circumstances set out in Article 44 2 of the
Convention. It may be subject to editorial revision.

T.P. AND A.T. v. HUNGARY JUDGMENT

In the case of T.P. and A.T. v. Hungary,

The European Court of Human Rights (Fourth Section), sitting as a
Chamber composed of:
Vincent A. De Gaetano, President,
Andrs Saj,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Egidijus Kris,
Gabriele Kucsko-Stadlmayer,
Marko Bonjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 5 July 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in two applications (nos. 37871/14 and 73986/14)
against Hungary lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms
(the Convention) by two Hungarian nationals, Mr T.P and Mr A.T.
(the applicants), on 28 October 2014 and 20 November 2014 respectively.
The President of the Section acceded to the applicants request not to have
their names disclosed (Rule 47 4 of the Rules of Court).
2. The applicants were represented by Mr A. Kovcs, a lawyer practising
in Szeged. The Hungarian Government (the Government) were
represented by Mr Z. Talldi, Agent, Ministry of Justice.
3. The applicants alleged, in particular, that their whole life sentences
were de iure and de facto irreducible under Hungarian law, in breach of
Article 3 of the Convention.
4. On 30 March 2015 the applicants complaints concerning
irreducibility of their whole life sentences were communicated to the
Government and the remainder of their complaints were declared
inadmissible pursuant to Rule 54 3 of the Rules of Court.
5. A submission was received by Hungarian Helsinki Committee, which
had been granted leave to intervene as a third party (Article 36 2 of the
Convention and Rule 44 3 of the Rules of Court).

T.P. AND A.T. v. HUNGARY JUDGMENT

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Mr T.P.
6. The first applicant, Mr T. P. was born in 1981 and is currently serving
his prison term in Storaljajhely.
7. On 22 November 2006 the Ngrd County Regional Court convicted
the first applicant of murder committed with special cruelty and abuse of
firearms. The applicant was sentenced to life imprisonment with no
possibility of parole.
8. On 28 June 2007 the Budapest Court of Appeal upheld the judgment,
adding that the murder had been committed for villainous reasons, namely,
the applicant was considered to have killed the victim in a particularly
atrocious manner, so as to prevent her from reporting the initial abduction
and stabbing and thereby to cover up a previous crime.
9. On 14 February 2008 the Supreme Court dismissed the first
applicants petition for review.
10. On 5 November 2013 the President of the Republic dismissed the
applicants request for pardon, by which he sought commutation of his life
sentence to twenty years fixed-term imprisonment as well as allowing the
possibility of his release on parole.
B. Mr A.T.
11. The second applicant, Mr A.T. was born in 1985 and is currently
serving his prison term in Storaljajhely.
12. On 14 May 2010 the Borsod-Abaj-Zempln County Regional Court
convicted the second applicant of double murder and abuse of firearms.
He was sentenced to life imprisonment with no possibility of parole.
13. On 9 November 2010 the Debrecen Court of Appeal upheld this
judgment.
14. On 13 September 2011 the Supreme Court dismissed the second
applicants petition for review.
15. On 23 October 2014 the President of the Republic dismissed the
applicants request for pardon, by which he sought commutation of his life
sentence to twenty years fixed-term imprisonment as well as allowing the
possibility of his release on parole.

T.P. AND A.T. v. HUNGARY JUDGMENT

II. RELEVANT DOMESTIC LAW

16. Article 9 of the Fundamental Law (as in force since 1 January 2012)
provides as follows:
(4) The President of the Republic shall:
...
g) exercise the right to grant individual pardon.
...
(5) Any measure and decision of the President of the Republic under paragraph (4)
shall be subject to the countersignature of a government member. An Act may provide
that a decision within the statutory competence of the President of the Republic shall
not be subject to a countersignature.

17. The relevant parts of Act no. CCXL of 2013 on the Execution of
Punishments, Measures, Certain Coercive Measures and Confinement for
Infractions, as amended by Act no. LXXII of 2014, in force as of 1 January
2015, read as follows:
Section 30
(1) The person vested with the power to grant pardon may ..., by an act of grace,
terminate or commute a convicted prisoners punishment. Where a punishment or
measure has been terminated or commuted on pardon, the terminated or commuted
part of the punishment or measure shall not be enforceable.
Section 45
(1) The pardon application shall be transmitted, ex officio or upon request, ... by the
minister responsible for justice to the President of the Republic.
(3) A request for pardon shall be filed by the convicted prisoner, his defence
counsel, the statutory representative of a minor convicted prisoner or a relative of the
convicted prisoner.
(4) ... The request for pardon shall be submitted to the court having proceeded at
first instance.
(5) The minister responsible for justice shall transmit the request for pardon to the
President of the Republic even if he himself does not endorse the granting of pardon.
Mandatory pardon procedure for prisoners sentenced to life without parole
Section 46/A
(1) Pursuant to the provisions of this Act, ex officio clemency proceedings
(henceforth: mandatory pardon proceedings) shall be conducted in respect of
convicted prisoners sentenced to life imprisonment without the possibility of parole.
(2) Having recourse to such mandatory pardon proceedings shall not exclude the
possibility of filing a request for pardon according to the general rules by a convicted
prisoner sentenced to life imprisonment without the possibility of parole or by any
other person entitled to do so, or of initiating pardon proceedings ex officio by a
person entitled to do so.

T.P. AND A.T. v. HUNGARY JUDGMENT

Section 46/B
(1) The correctional facility detaining the convicted prisoner shall notify the
minister responsible for justice when the convicted prisoner has served forty years of
imprisonment.
(2) Prior to the notification mentioned in subsection (1), the correctional facility
shall invite the convict to make a declaration as to whether he gives consent to the
mandatory pardon proceedings. The declaration of consent or the declaration of
refusal by the convicted prisoner, or in case the convict has refused to make a
declaration the records thereof, shall be attached to the notification made under
subsection (1).
(3) Should the convicted prisoner not consent or should he refuse to make a
declaration, no mandatory pardon proceedings may be instituted.
Section 46/C
Pursuant to section 46(4), the minister responsible for justice shall, within sixty
days from the receipt of the notification made under section 46/B, obtain the personal
data required for the mandatory pardon proceedings and ... shall obtain the
preparatory documents to be examined in making a decision in the clemency case, in
particular:
a) the documents compiled by the correctional facility
aa) the risk assessment summary report on the convicted prisoner,
ab) the documents related to the security risk classification of the convicted
prisoner,
ac) the evaluative opinions about the convicted prisoner,
ad) the documents related to the disciplinary proceedings against the convicted
prisoner
ae) the documents about the convicted prisoners health, including the opinion of a
specialized doctor and a psychologist on the convicted prisoners mental state;
b) the documents related to the convicted prisoners criminal case;
c) the social inquiry report made by the parole officer on the circumstances
awaiting the convicted prisoner;
d) in case the convicted prisoner informs the correctional facility that if released he
will be employed, a statement on employment issued by the employer.
Section 46/D
(1) The minister responsible for justice shall, within three days, at the latest, from
the receipt of the notification made under section 46/B, notify the President of the
Kria of the commencement of the mandatory clemency proceedings.
(2) The Clemency Board is a five-member board participating in the mandatory
clemency proceedings.
(3) The Clemency Board shall operate on a case-by-case basis from the appointment
of its members till the transmission of its opinion to the minister responsible for
justice.

T.P. AND A.T. v. HUNGARY JUDGMENT

(4) Members of the Clemency Board shall be appointed following the notification
mentioned in subsection (1), upon the proposal of the Criminal Division of the Kria
by the President of the Kria, without delay. Judges trying criminal cases at the Kria
or at a court of appeal may be appointed to be members of the Clemency Board. Such
an appointment requires the judges consent.
(5) A judge
a) having acted as a judge in the criminal case underlying the obligatory clemency
proceedings or in the enforcement of the sentence of imprisonment,
b) having acted as a prosecutor in the criminal case underlying the obligatory
clemency proceedings or in the enforcement of the sentence of imprisonment,
c) having acted as member of the investigating authority in the criminal case
underlying the obligatory clemency proceedings,
d) being a relative of the convicted prisoner,
e) being an aggrieved party or a relative of an aggrieved party in the criminal case
underlying the obligatory clemency proceedings
may not be appointed as a member of the Clemency Board.
Section 46/E
(1) The requirements laid down in Article 26(1) of the Fundamental Law shall also
apply to members of the Clemency Board.
(2) The Clemency Board shall take its decisions by majority voting.
(3) The Clemency Board shall elect a chairman from among its members. If the
chairman is prevented from acting, he shall be substituted, with full authority, by a
member of the Clemency Board appointed by the chairman.
Section 46/F
(1) The minister responsible for justice shall transmit the documents obtained
within the time limit specified in section 46/C to the Clemency Board within eight
days from the receipt of the documents.
(2) Within ninety days from the receipt of the documents obtained under
section 46/C the Clemency Board shall examine whether, based on
a) the convicted prisoners irreproachable conduct during the execution of his
punishment and on his readiness to live a law-abiding life, and
b) the convicted prisoners personal and family circumstances, and his health
conditions, there are reasonable grounds to believe that the goal of the punishment
will be achieved without further deprivation of liberty.
(3) ... the Clemency Board may obtain any further data and documents found to be
necessary for the conduct of the mandatory clemency proceedings.
(4) In the course of the proceedings the Clemency Board may resort to any person
having expert knowledge on a technical issue deemed to be significant for the
examination or may ask for an expert opinion on an issue. As to the convicted
prisoners mental state, the Clemency Board is obliged to involve a specialized doctor
or a psychologist. The contacted expert may consult the documents and data obtained
in the proceedings. The costs of the contacted experts work shall be borne by the
state.

T.P. AND A.T. v. HUNGARY JUDGMENT

(5) The Clemency Board shall hear the convicted prisoner in the course of the
proceedings.
(6) Based on the examination conducted under subsection (2), the Clemency Board
shall adopt a reasoned opinion containing a recommendation on the granting of
clemency.
(7) The reasoned opinion, the documents received and the data obtained in the
course of the examination shall, together with the expert opinions, be transmitted by
the Clemency Board to the minister responsible for justice.
Section 46/G
(1) The minister responsible for justice may not depart from the Clemency Boards
opinion. The minister responsible for justice shall draft the clemency application for
the President of the Republic in line with the content of the Clemency Boards
opinion, including the reasoning of the opinion.
(2) The minister responsible for justice shall transmit the clemency application to
the President of the Republic within fifteen days from the receipt of the Clemency
Boards opinion.
(3) The minister responsible for justice shall also transmit the clemency application
to the convicted prisoner, via the correctional facility in which he is detained.
...
Section 46/H
If the mandatory pardon proceedings are closed without granting clemency to the
convicted prisoner and the convicted prisoner continues to serve his life
imprisonment, another set of mandatory pardon proceedings shall be instituted after a
lapse of two years following the completion of the mandatory pardon proceedings.

III. RELEVANT
EUROPEAN,
COMPARATIVE LAW

INTERNATIONAL

AND

18. The relevant texts of the Council of Europe, the European Union and
other international legal texts on the imposition and review of sentences of
life imprisonment are set out in Kafkaris v. Cyprus ([GC], no. 21906/04,
68-76, ECHR 2008), Vinter and Others v. the United Kingdom ([GC],
nos. 66069/09, 130/10 and 3896/10, 60-75, 9 July 2013), and most
recently Murray v. the Netherlands [GC], 10511/10, 58-65, 26 April
2016).
19. The relevant Council of Europe and international instruments on the
objectives of a prison sentence, notably as regards the importance to be
attached to rehabilitation, are outlined in Dickson v. the United Kingdom
([GC], no. 44362/04, 28-36, ECHR 2007-V), and summarised in
Vinter and Others (cited above, 76-81) and Murray (cited above,
70-76).

T.P. AND A.T. v. HUNGARY JUDGMENT

THE LAW
I. JOINDER OF THE APPLICATIONS
20. Given their similar factual and legal background, the Court decides
that the two applications should be joined under Rule 42 1 of the Rules of
Court.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
21. The applicants complained that, under the new clemency procedure
in force as of 2015, their whole life sentences remained de facto irreducible,
in breach of Article 3, which reads as follows:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.

A. Admissibility
22. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties submissions
(a) The applicants

23. The applicants argued that, as in the general pardon procedure, under
the new mechanism the clemency decision of the President of the Republic
had to be counter-signed by the Minister of Justice. It therefore remained a
purely discretional political decision lacking foreseeability. The overall
procedure was completely impenetrable as neither the President nor the
Minister of Justice were obliged to give any reasons for their decision.
24. In this regard, the applicants pointed out that, in the case of Lszl
Magyar v. Hungary (no. 73593/10, 20 May 2014), the Court required that
when creating a review mechanism a State should ensure that the decision
allowing or rejecting a pardon request contain the reasons behind it, and that
a convicted person can reasonably foresee the conditions under which a
pardon can be granted. However, the new procedure disregarded those
requirements.
25. Furthermore, the applicants complained that, under the new
procedure, they could apply for release only after forty years, a term which

T.P. AND A.T. v. HUNGARY JUDGMENT

fell foul of the Courts findings in Vinter and Others v. the United Kingdom
([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts)), which
indicated that States should guarantee the review of life sentences after no
longer than twenty five years in order to guarantee the possibility, de iure
and de facto, of a release on parole, should the proper conditions be met. On
the contrary, the possibility foreseen by the new procedure to consider a
convicts release only after forty years constituted inhuman punishment, as
it fully disregarded the changes in the applicants personality and in the
level of their dangerousness to society, or their efforts of changing and
being able to be reintegrated into society.
(b) The Government

26. The Government contended that the new legislation introducing the
mandatory clemency procedure provided for a de iure and de facto
possibility of a life prisoners reducibility of sentence.
27. Under the new legislation, the authorities had to examine whether
the imprisonment continued to be justified as soon as a prisoner has served
forty years of his life sentence. Each convict is also aware, from the outset
of his sentence, what he must do to be considered for release and under
what conditions. The new legislation further allowed for paying proper
regard to the changes and developments that occurred in the convicted
prisoner on his way to rehabilitation, and allowed for the eventual
termination of imprisonment.
28. As to the applicants contention that the forty-year term was contrary
to the Courts case-law on this issue, the Government recalled the
inadmissibility of the similar case of Trkly v. Hungary ((dec.),
no. 4413/06, 5 April 2011) and argued that, having regard to the margin of
appreciation accorded to the Contracting States in matters of criminal justice
and sentencing, it was not the Courts task to prescribe the form which such
a review should take. For the same reason, it was not for the Court to
determine when such a review should take place.
29. The forty-year period first of all corresponded to the retribution
phase of a whole life sentence, and was proportionate to the circumstances
of the offence. The retribution phase of such duration could be compared to
a long (fixed-term) imprisonment of up to fifty years applied in some
Council of Europe member states.
30. Secondly, the choice of the forty-year period was due to legal policy
reasons. The Hungarian Criminal Code provided that life prisoners with the
possibility of parole became eligible for parole after having served between
twenty five and forty years of their sentences. Setting a period of less than
forty years for the commencement of the mandatory pardon proceedings in
respect of life prisoners without the possibility of parole would place,
paradoxically, such prisoners in a more advantageous position.

T.P. AND A.T. v. HUNGARY JUDGMENT

31. The Government emphasised that at present there was no clear,

generally accepted standard among the Council of Europe member states in
the matter. The twenty-five years observed by the Court in the Vinter case
as a tendency could not be regarded as an accepted standard.
32. Finally, before the expiry of the forty-year time-period the applicants
could avail themselves of the general pardon procedure which affords them
the possibility of release if extraordinary circumstances deserving special
consideration existed. Although their clemency applications have been
rejected in the past, they could nevertheless file repeatedly and without any
limitation fresh requests for pardon, which will be examined in light of the
new data and documents available.
(c) The third party

33. The Hungarian Helsinki Committee submitted that the new review
mechanism introduced by the legislator did not comply with the standards
set by the Court in Vinter and Others (cited above) as it did not provide any
real prospect of release.
34. Firstly, the final decision in the new mandatory pardon procedure
was still made by the President of the Republic, it was by law discretionary
and thus raised several concerns. Even though it was up to a judicial
body - the Clemency Board - to provide a reasoned opinion on whether or
not pardon should be granted, the President of the Republic was not bound
to give reasons for his ultimate decisions, even if it was not in line with the
Boards opinion. Furthermore, domestic legislation did not oblige the
President of the Republic to assess whether the convicts continued
imprisonment was justified on legitimate policy grounds. The law did not
provide any specific guidance either as to what criteria were to be taken into
account by the President of the Republic in the assessment of an individual
case. Thus, the new mechanism did not allow any prisoner to know what he
or she must do in order to be considered for release and under what
conditions. It also failed to guarantee a proper consideration of the changes
and the progress towards rehabilitation made by the prisoner, however
significant they might be (see Lszl Magyar, cited above, 58).
35. Moreover, the Presidents pardon was valid only if countersigned by
the Minister of Justice, which was not always the case, especially with
politically sensitive issues. The new mechanism did not determine any
aspect or consideration the Minister needed to take into account when
deciding whether or not to countersign, nor did he have to provide reasons
for his decision.
36. The third party further pointed out that the mandatory pardon
procedure could first take place after forty years of imprisonment served,
which was a much longer period than what was deemed acceptable by the
Court in the Vinter and Others case.

10

T.P. AND A.T. v. HUNGARY JUDGMENT

37. Finally, the third party cited statistical data showing that thus far
pardon had been granted to a very limited number of prisoners in Hungary.
2. The Courts assessment
(a) General principles

38. In Murray v. the Netherlands ([GC], no. 10511/10, 26 April 2016),

the Court reiterated and further developed its previous case-law concerning
the need for life sentences to be de facto reducible (see also Kafkaris
v. Cyprus [GC], no. 21906/04, ECHR 2008; Vinter and Others, cited above;
Lszl Magyar, cited above; Harakchiev and Tolumov v. Bulgaria,
nos. 15018/11 and 61199/12, ECHR 2014 (extracts)).
The relevant part of the Murray judgment reads as follows:
99. It is well established in the Courts case-law that the imposition of a sentence
of life imprisonment on an adult offender is not in itself prohibited by or incompatible
with Article 3 or any other Article of the Convention (see Kafkaris, cited above, 97,
and references cited therein), provided that it is not grossly disproportionate (see
Vinter and Others, cited above, 102). The Court has, however, held that the
imposition of an irreducible life sentence on an adult may raise an issue under Article
3 (see Kafkaris, cited above, 97). A life sentence does not become irreducible by the
mere fact that in practice it may be served in full. No issue arises under Article 3 if a
life sentence is de jure and de facto reducible (see Kafkaris, cited above, 98, and
Vinter and Others, cited above, 108). On the basis of a detailed review of the
relevant considerations emerging from its case-law and from recent comparative and
international-law trends in respect of life sentences, the Court has found in Vinter and
Others that a life sentence can remain compatible with Article 3 of the Convention
only if there is both a prospect of release and a possibility of review, both of which
must exist from the imposition of the sentence (see Vinter and Others, cited above,
104-118 and 122). It further observed in that case that the comparative and
international law materials before it showed clear support for the institution of a
dedicated mechanism guaranteeing a review no later than twenty-five years after the
imposition of a life sentence, with further periodic reviews thereafter (ibid., 120, see
also Bodein v. France, no. 40014/10, 61, 13 November 2014). It is for the States to
decide and not for the Court to prescribe what form (executive or judicial) that
review should take (see Kafkaris, cited above, 99, and Vinter and Others, cited
above, 104 and 120). The Court has held that presidential clemency may thus be
compatible with the requirements flowing from its case-law (see Kafkaris, cited
above, 102).
100. The Court has further found that a prisoner cannot be detained unless there are
legitimate penological grounds for incarceration, which include punishment,
deterrence, public protection and rehabilitation. While many of these grounds will be
present at the time when a life sentence is imposed, the balance between these
justifications for detention is not necessarily static and might shift in the course of the
execution of the sentence. It is only by carrying out a review of the justification for
continued detention at an appropriate point in the sentence, that these factors or shifts
can be properly evaluated (Vinter and Others, cited above, 111). The review
required in order for a life sentence to be reducible should therefore allow the
domestic authorities to consider whether, in the course of the sentence, any changes in
the life prisoner and progress towards his or her rehabilitation are of such significance

T.P. AND A.T. v. HUNGARY JUDGMENT

11

that continued detention is no longer justified on legitimate penological grounds

(ibid., 119). This assessment must be based on rules having a sufficient degree of
clarity and certainty (ibid., 125 and 129; see also Lszl Magyar v. Hungary,
no. 73593/10, 57, 20 May 2014, and Harakchiev and Tolumov v. Bulgaria,
nos. 15018/11 and 61199/12, 255, 257 and 262, ECHR 2014 (extracts)) and the
conditions laid down in domestic legislation must reflect the conditions set out in the
Courts case-law (see Vinter and Others, cited above, 128). Thus, a possibility of
being granted a pardon or release on compassionate grounds for reasons related to
ill-health, physical incapacity or old age does not correspond to the notion of
prospect of release as formulated in the Kafkaris judgment (see Vinter and Others,
cited above, 127, and calan v. Turkey (no. 2), nos. 24069/03, 197/04, 6201/06 and
10464/07, 203, 18 March 2014). A Chamber of the Court held in a recent case that
the assessment must be based on objective, pre-established criteria (see Trabelsi
v. Belgium, no. 140/10, 137, ECHR 2014 (extracts)). The prisoners right to a
review entails an actual assessment of the relevant information (see Lszl Magyar,
cited above, 57), and the review must also be surrounded by sufficient procedural
guarantees (see Kafkaris, cited above, 105, and Harakchiev and Tolumov, cited
above, 262). To the extent necessary for the prisoner to know what he or she must
do to be considered for release and under what conditions, it may be required that
reasons be provided, and this should be safeguarded by access to judicial review (see
Lszl Magyar, cited above, 57, and Harakchiev and Tolumov, cited above, 258
and 262). Finally, in assessing whether the life sentence is reducible de facto it may be
of relevance to take account of statistical information on prior use of the review
mechanism in question, including the number of persons having been granted a
pardon (see Kafkaris, cited above, 103; Harakchiev and Tolumov, cited above,
252 and 262; and Bodein, cited above, 59).
(b) Application of those principles to the present case

39. The Court recalls that in Lszl Magyar (cited above) it concluded
that life sentences in Hungary at the time had been de iure and de facto
irreducible. In the Courts view, the institution of presidential clemency,
which at the time was the only possibility of release for a prisoner sentenced
to life without possibility of parole, fell foul of the requirements of
reducibility of sentences as set out in Vinter and Others (cited above).
40. As a way of complying with the Courts findings in the above case,
the respondent State enacted new legislation, which introduced the
mechanism of an automatic review of whole life sentences. Under the new
legislation, this mandatory pardon procedure is to be initiated only after a
convict has served forty years of his or her sentence.
41. The Court recalls that, in Vinter and Others, it found that a life
sentence could remain compatible with Article 3 of the Convention only if
there was both a prospect of release and a possibility of review, both of
which must exist from the imposition of the sentence (see Vinter and
Others, cited above, 104-118 and 122). Moreover, it further observed
that the comparative and international law materials before it showed clear
support for the institution of a dedicated mechanism guaranteeing a review
no later than twenty-five years after the imposition of a life sentence, with

12

T.P. AND A.T. v. HUNGARY JUDGMENT

further periodic reviews thereafter (ibid., 120; and also Harakchiev and
Tolumov, 246; Murray, 99, both cited above).
42. The Court further recalls that in Bodein v. France (no. 40014/10,
13 November 2014) it was called upon to examine the French system of
reducibility of whole life sentences, in particular whether the possibility of a
review of life sentences after thirty years of imprisonment remained
compatible with the criteria established in Vinter and Others. In finding that
it did, the Court gave particular weight to the fact that the starting point for
the calculation of the whole-life term under French law included any
deprivation of liberty, that is to say, even the period spent in pre-trial
detention. Since the applicant in that case was thus able to apply for parole
twenty-six years after the imposition of his life sentence, the Court
concluded that the punishment in his case was to be considered reducible for
the purposes of Article 3 (see Bodein, cited above, 61).
43. Turning to the present case, the Government argued that the
forty-year period set out in the new legislation corresponded to the
retribution phase of a whole life sentence and was proportionate to the
circumstances of the offence. In any event, it fell within the margin of
appreciation enjoyed by the States in this matter. The Government also
seemed to suggest that the far shorter time-period mentioned in Vinter and
Others was only a general indication rather than a clear standard set in all
Council of Europe member states (see 31 above).
44. For its part, the Court would agree with the Government that States
indeed enjoy a margin of appreciation in the area of criminal justice and
sentencing (see Vinter and Others, cited above, 120; Bodein v. France,
cited above, 61). However, it is axiomatic that the said margin of
appreciation cannot be unlimited (see, mutatis mutandis, Hirst v. the United
Kingdom (no. 2) [GC], no. 74025/01, 82, ECHR 2005-IX; A, B and
C v. Ireland [GC], no. 25579/05, 238, ECHR 2010; Parrillo v. Italy [GC],
no. 46470/11, 183, ECHR 2015).
45. In that connection, the Court notes that forty years during which a
prisoner must wait before he can for the first time expect to be considered
for clemency is a period significantly longer than the maximum
recommended time frame after which the review of a life sentence should be
guaranteed, established on the basis of a consensus in comparative and
international law (see Vinter, cited above, 120). It is also hardly
comparable with the twenty-six-year period that the applicant in Bodein had
to wait before being eligible to apply for parole (see 42 above and Bodein,
cited above, 61). Moreover, unlike in Bodein, the Government did not
seek to argue that any period of the applicants pre-trial detention would be
calculated towards the forty-year time-limit necessary in order to commence
the mandatory pardon proceedings. The Court cannot but conclude that such
a protracted waiting period thus falls outside any acceptable margin of
appreciation enjoyed by the State, however wide that margin might be.

T.P. AND A.T. v. HUNGARY JUDGMENT

13

46. The Government further sought to argue that, even before the lapse
of forty years required for the mandatory pardon procedure to be set in
motion, a life prisoner could seek presidential clemency in ordinary pardon
proceedings, without any limitation in the number or timing of his
applications (see 32 above). The Court observes that both applicants have
already availed themselves of this opportunity but their respective requests
were rejected by the President of the Republic (see above 10 and 15).
However, it is not those decisions to reject the applicants pardon requests
which are of concern to the Court. Indeed, no Article 3 issue arises if a life
prisoner had the right under domestic law to be considered for release but
this was refused, for example, on the ground that he or she continued to
pose a danger to society (see Vinter and Others, cited above, 108). Once
more, what is at stake before the Court is whether the legal framework in
Hungary, from the very outset of the applicants sentences, provided them
with a mechanism or possibility for review of their whole life sentences
(see, mutatis mutandis, Vinter and Others, cited above, 122). While it is
true that seeking presidential clemency continues to be open to various
groups of persons serving a prison term in Hungary, including the
applicants, the Court has already found that this avenue did not provide de
facto or de iure reducibility of a life sentence (see Lszl Magyar, cited
above, 58).
47. Finally, insofar as the Government relied on the case of Trkly
v. Hungary (cited above) declared inadmissible by the Court in 2011, in the
light of the Grand Chambers subsequent ruling in Vinter and Others (cited
above, 120), the Court considers that it cannot adopt the same approach in
the present case (see, mutatis mutandis, Harakchiev and Tolumov, cited
above, 253).
48. In sum, alone the fact that the applicants can hope to have their
progress towards release reviewed only after they have served forty years of
their life sentences is sufficient for the Court to conclude that the new
Hungarian legislation does not offer de facto reducibility of the applicants
whole life sentences. Such a long waiting period unduly delays the domestic
authorities review of 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 (see Vinter and Others, cited
above, 119).
49. The Court recalls that, to the extent necessary for the prisoner to
know what he or she must do to be considered for release and under what
conditions, it may be required that reasons be provided, and this should be
safeguarded by access to judicial review (see Murray, cited above, 100;
Lszl Magyar, cited above, 57, and Harakchiev and Tolumov, cited
above, 258 and 262). The Court cannot but express a number of concerns
relating to the remainder of the procedure provided by the new legislation.

14

T.P. AND A.T. v. HUNGARY JUDGMENT

The Court notes that the general criteria to be taken into account by the
Clemency Board in deciding on whether or not to recommend a life prisoner
for pardon are now clearly set out in section 46/C of the new Act, which
satisfies the requirement that any such assessment be based on objective,
pre-established criteria (see Trabelsi, cited above, 137). However, it does
not appear that they equally apply to the President of the Republic, who has
the last say as to a possible pardon in every individual case. In other words,
the new legislation does not oblige the President of the Republic to assess
whether continued imprisonment is justified on legitimate penological
grounds. What is more, the new Act failed to set a time-frame in which the
President must decide on the clemency application or to oblige him or the
Minister of Justice - who needs to countersign any clemency decision - to
give reasons for the decision, even if it deviates from the recommendation
of the Clemency Board. Indeed, the Court has already expressed its
reservation concerning the pre-existing clemency system where neither the
Minister of Justice nor the President of the Republic were bound to give
reasons for the decisions concerning such requests (see Lszl Magyar,
cited above, 57).
50. In view of the lengthy period the applicants are required to wait
before the commencement of the mandatory clemency procedure, coupled
with the lack of sufficient procedural safeguards in the second part of the
review procedure as provided for by the new legislation, the Court is not
persuaded that, at the present time, the applicants life sentences can be
regarded as reducible for the purposes of Article 3 of the Convention.
There has accordingly been a violation of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.

A. Damage
52. The first applicant claimed 8,600 euros (EUR) in respect of
pecuniary damage and EUR 77,500 in respect of non-pecuniary damage.
The second applicant claimed EUR 3,300 in respect of pecuniary damage
and EUR 37,000 in respect of non-pecuniary damage.
53. The Government found those claims excessive.
54. The Court does not discern any causal link between the violation
found and the pecuniary damage claimed by the applicants; it therefore
rejects these claims. As regards non-pecuniary damage, the Court considers

T.P. AND A.T. v. HUNGARY JUDGMENT

15

that the finding of a violation constitutes sufficient just satisfaction for any
non-pecuniary damage suffered by the applicants and accordingly makes no
award under this head.
B. Costs and expenses
55. The applicants also claimed EUR 1,500 each for the costs and
expenses incurred before the Court. This corresponds to ten hours of legal
work billable by their lawyer plus clerical and translation costs.
56. The Government contested those claims.
57. According to the Courts case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court considers it reasonable to award
the sum of EUR 1,500 to each of the applicants covering costs under all
heads.
C. Default interest
58. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Decides, unanimously, to join the applications;
2. Declares, by a majority, the applications admissible;
3. Holds, by six votes to one, that there has been a violation of Article 3 of
the Convention;
4. Holds, by six votes to one, that the finding of a violation constitutes in
itself sufficient just satisfaction for the non-pecuniary damage sustained
by the applicants;
5. Holds by six votes to one,
(a) that the respondent State is to pay, within three months from the date
on which the judgment becomes final in accordance with Article 44 2
of the Convention, to each of the applicants in respect of costs and
expenses the amount of EUR 1,500 (one thousand five hundred euros),

16

T.P. AND A.T. v. HUNGARY JUDGMENT

to be converted into the currency of the respondent State at the rate

applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
6. Dismisses, unanimously, the remainder of the applicants claim for just
satisfaction.
Done in English, and notified in writing on 4 October 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Marialena Tsirli
Registrar

Vincent A. De Gaetano
President

In accordance with Article 45 2 of the Convention and Rule 74 2 of

the Rules of Court, the separate opinion of Judge Kris is annexed to this
judgment.

V.D.G.
M.T.

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

17

DISSENTING OPINION OF JUDGE KRIS

1. I have not joined my distinguished colleagues in finding that in the
present case there has been a violation of Article 3 of the Convention. On
the surface, this opinion may seem to be in some disagreement with the
Courts case-law, as expounded in 2013 in Vinter and Others v. the United
Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013
(extracts)) and just a few months ago in Murray v. the Netherlands ([GC],
10511/10, 58-65, 26 April 2016). This is not so. True, I do find the
case-law pertaining to life imprisonment to be to some extent problematic.
But only to some extent, and not in essence. What I find more problematic
is how that case-law has been employed in the present case. The manner in
which it has been employed renders the attribution of the actual violation to
the respondent State not really proven.
2. The finding of a violation of Article 3 is based on two circumstances.
The majority sums them up in paragraph 50 of the judgment:
In view of the lengthy period the applicants are required to wait before the
commencement of the mandatory clemency procedure, coupled with the lack of
sufficient procedural safeguards in ... the ... review procedure as provided for by the
new legislation, the Court is not persuaded that, at the present time, the applicants life
sentences can be regarded as reducible for the purposes of Article 3 of the
Convention.

The forty-year waiting period in issue may appear to be the main

problem, especially given the fact that the judgment deals with this aspect
more extensively than with the procedural safeguards (mostly related to
the mandatory clemency procedure). Like the majority, I also find this
lengthy period difficult to explain in strictly penological terms. However,
the expression coupled with suggests that the two elements are
cumulative. Therefore, the forty-year period in itself might not have sufficed
for finding a violation of Article 3 and, vice versa, the lack of sufficient
procedural safeguards could possibly have been alleviated by a relatively
short waiting period. In my opinion, the manner in which these two
elements have been cumulatively invoked in the present case is not
unquestionable. For instance, a wholly impracticable period which a
hypothetical applicant should complete in order to become eligible to
request mandatory clemency could in itself render such a request and, by
extension, the possibility (and hence the hope) of release illusory. Still,
with regard to the two applicants in the present case this period is not
impracticable (compare paragraph 6 below).
3. Let us go back to 2006 and 2010, when the applicants were sentenced
to life imprisonment. Vinter and Others (cited above) was not in place,
including its much-noted requirement that a prospect of release and a
possibility of review must exist from the imposition of the sentence (as
summarised in Murray, cited above, 99).

18

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

Instead (with regard to the second applicant, who was sentenced at a later
date than the first one), at that time there was the still very recent judgment
adopted in Kafkaris v. Cyprus ([GC], no. 21906/04, 68-76, ECHR 2008),
which did not contain any such requirement. Did Hungary have an
obligation to comply with that requirement of Article 3, as interpreted in the
Courts case-law, before it was introduced by this Court? Could it have
done so?
4. What is more, in 2011 the Hungarian Government were given an
explicit indication and guidance by this Court to the effect that the
forty-year period established by that countrys legislation did not raise an
issue under Article 3. In Trkly v. Hungary ((dec.), no. 4413/06, 5 April
2011), the Court considered that it has not been established that the
applicant has been deprived of all hope of being released from prison one
day ( 2).
More specifically, in Trkly, that lengthy period did not raise an issue
under Article 3, either in itself or coupled with the procedure of
presidential pardon, which in its turn was considered at that time, from the
perspective of the Convention, to be a sufficient remedy for seeking release.
As was stated in Kafkaris (cited above) as late as 2008:
[Notwithstanding that] the prospect of release for prisoners serving life sentences
in Cyprus is limited, any adjustment of a life sentence being only within the
Presidents discretion, subject to the agreement of the Attorney-General [and despite]
certain shortcomings in the ... procedure, ... life sentences in Cyprus [cannot be seen
as] irreducible with no possibility of release; on the contrary, it is clear that in Cyprus
such sentences are both de jure and de facto reducible ( 103).

5. Even if later judgments of the Court went much further than Kafkaris
(cited above) in tightening, step by step (but in rapid succession), the
Convention standards for the review of life sentences, the position of
principle quoted above was never openly abandoned in the Courts
case-law. On the contrary, it was reiterated (not necessarily using the same
phrasing) in a number of later judgments (see, for example, Iorgov
v. Bulgaria (no. 2), no. 36295/02, 58-60, 2 September 2010, and
Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, 244,
8 July 2014; but compare and contrast Lszl Magyar v. Hungary,
no. 73593/10, 58, 20 May 2014). Most recently, these doctrinal provisions
were reaffirmed in Murray (cited above) by the Grand Chamber, which
stated as follows:
... presidential clemency may ... be [considered as] compatible with the
requirements flowing from [the Courts] case-law ( 99).

Thus, the said tenet is not history. It continues to be the law of the
Convention. It is also quoted in the present judgment (see paragraph 38).
6. It is difficult to discern much difference between the situation
examined in Trkly (cited above) and that under examination in the present
case (despite the formal, although on some points not unimportant,

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

19

amendments to the relevant national statute). If, however, one can be

discerned, it is that in Trkly the Court observed:
... the applicant will become eligible for conditional release ... when he will be
75 years old. Notwithstanding his representations to the effect that his life expectancy
in statistical terms may be shorter than that, the Court is satisfied that the judgment
imposed on the applicant thus guarantees a distant but real possibility for his release
(ibid.).

This argument is, of course, shaky. It is hardly plausible. Nevertheless,

the message which such reasoning by the Court sent to the Hungarian
authorities, as late as 2011, was unambiguous. Bear in mind that this
message was sent to the national authorities after the applicants in the
present case had been sentenced.
Moreover, compared to the life expectancy argument employed in
Trkly, in the present case the applicants will both be 65 when they
become eligible for the mandatory clemency procedure. Not an insignificant
difference.
How could the Hungarian authorities foresee that a distant but real
possibility for release of a person who must wait till he is 75 would turn
into impossibility for a person who will be eligible at 65?
7. The majority states:
... in the light of the Grand Chambers subsequent ruling in Vinter and Others ...,
the Court considers that it cannot adopt the same approach in the present case ( 47).

Thus, Trkly (cited above) is now overruled, and this overruling is

explicitly acknowledged. (Such open acknowledgments are a rare breed in
the Courts judgments.) The Court has finally said that after Vinter and
Others (cited above) there can be no more reliance on Trkly!
But for reasons nowhere explained(!) this was not stated in another
very recent post-Vinter case against the same respondent State, namely
Lszl Magyar v. Hungary (cited above). On the contrary, in that case the
Court explicitly contrasted the situation under consideration with that dealt
with in Trkly. Hence, the Court treated the latter as valid law (see Lszl
Magyar, 55-56), a precedent potentially to be taken into consideration.
This, with hindsight, seems even more surprising since the decision adopted
in Trkly was contested in Lszl Magyar both by the applicant (see 30)
and by the third-party intervener (see 41).
What were the Hungarian authorities to make of all that? Only that in
2014 Trkly was still valid law, that is to say, whatever requirements
stemmed from Lszl Magyar had to be read together with and not in
disregard of those stemming from Trkly.
8. On the basis, inter alia, that Trkly (cited above) today(!) no
longer constitutes valid law, the Chamber found a violation of Article 3 of
the Convention.

20

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

[T]here has been a violation of Article 3 says the judgment (point 3 of

the operative part). A typical formula, used in all judgments of the Court in
which a violation is found.
9. Violations of law, not excluding the law of the Convention, are not
merely something which has been. Violations of law are committed. And
the commission of a(ny) violation of law does not just exist like space and
time, which, as science authoritatively tells us, have no beginning.
Violations of law do have a beginning, namely the date when they were
committed. They also no less importantly have a transgressor, a
contributor, without whose intervention (or lack thereof) there would not
have been a violation. Even if a violation is attributed to a Member State
(which is a useful, even an indispensable legal fiction), in fact there always
has to be an institution or an official of that State whose intervention makes
the violation a reality.
10. I ask: when were the violations of the applicants rights under
Article 3 actually committed, and by whom? (Unlike the majority, I use the
plural because there are two separate applicants who are not even remotely
related to each other; hence, in fact, two violations of Article 3 have been
found.)
Several answers to these questions are possible.
11. The first version is the following. It is apparent from the reasoning
that these violations were committed by the Hungarian courts, because it
was the Hungarian courts which sentenced the applicants to life
imprisonment in the absence of a prospect of release and a possibility of
review [at the time of] the imposition of the sentence. (In order to save
space and time, I will not deal separately with the comparable episodes
entailing the upholding of the judgments by the appellate courts and the
dismissal of the applicants petitions for review by the Supreme Court.)
Thus, ironically enough, these courts violated the Convention by
performing their constitutional function, namely by administering justice
according to the applicable national law and sentencing the applicants to
life imprisonment (no one claims undeservedly) in a legislative environment
which some years later was found by this Court to be incompatible with
Article 3 of the Convention. Both the performance of the courts
constitutional function and the violation of the Convention merged, as in an
amalgam, into a single act of administration of criminal justice.
Moreover, the courts violated the Convention despite the fact that, at the
material time, that legislative environment was considered by the Court not
to be Convention-unfriendly and this consideration was explicitly stated in
Trkly (cited above).
To put it briefly, the Hungarian courts violated Article 3 because this
Court changed its approach. I do not want to be misunderstood. I am not
saying that the change was not for the better. Still, should the domestic

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

21

courts (not only Hungarian) have foreseen such a development? Could they
have done so? I doubt it.
12. It may be said that, as it now transpires, the domestic courts were
faced with an unenviable choice between (i) sentencing the applicants to life
imprisonment in a domestic legislative environment which was not
Convention-compatible (they had somehow to foresee this incompatibility)
and (ii) imposing on them other sentences which would not be found by this
Court to be incompatible with Article 3, even if the domestic law required
life imprisonment to be imposed for the crimes committed. Faced with such
an invidious choice, the domestic courts could hardly be held responsible
for the violations found in the present case.
13. But maybe the violations in question were not committed by the
courts? Still, if not the courts, who should be held responsible for the
violations?
Let us explore the alternative version. One could assert that it is the
President of the Republic who has to be considered to have been the main
contributor to the unlawful interference with the applicants rights under
Article 3. For it was he who, in 2013 and 2014, dismissed the applicants
requests for pardon and commutation of their life sentences to twenty-year
fixed terms and thus effectively deprived them of any hope of early release.
At least, it was his word (or deed, or decision) which was the last one in
bringing about, at the national level, the result that the applicants were not
released. One could assert that, even if the applicants might have entertained
such a hope when applying for pardon, that hope was effectively reduced to
nought by the President of the Republic.
14. First of all, one has to bear in mind that the time served in prison by
the applicants after their sentencing and up to the time of examination of the
present case eleven years by the first applicant and six years by the second
applicant is significantly shorter than the twenty-five years after the
imposition of a life sentence which is the maximum indicative term after
which that sentence has to be first reviewed (see Vinter and Others, cited
above, 120, and Murray, cited above, 99).
The Hungarian Government (and, one can assume, not only they) saw
that twenty-five year period only as an indication of a tendency rather
than an accepted standard (see paragraph 31 of the judgment).
That period really is not clear-cut, a fact acknowledged also by the
majority in this case (see paragraph 44). The judgment rightly recalls, in
paragraph 42, the case of Bodein v. France (no. 40014/10, 13 November
2014), where the formal thirty-year period was not held to be incompatible
with the Article 3 requirements (as interpreted by the Court in Vinter and
Others, cited above), because in that case the de facto period was
twenty-six years, since the applicant had been deprived of his liberty some
four years before the imposition of the life sentence.

22

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

One can only guess whether the Court would have adopted the same
position in Bodein had the applicant in that case been deprived of his liberty
before the imposition of the life sentence for, say, two years, thus extending
the twenty-six year period to twenty-eight years. I shall not engage in
further speculation on this matter. I mention this only as an illustration of
the sorts of difficulties which inevitably arise when the Court, indeed like a
real legislator, creates an exact (albeit somewhat flexible) norm, a
numerical standard which, although nowhere to be found in the text of the
Convention, is nevertheless applicable from now on in the Courts case-law
and thus is imposed on the Member States. The latter are supposed to feel
comforted by the reiteration of the assurance that they still enjoy some
margin of appreciation in legislating on matters of penal policy (albeit a
visibly narrower one than even a short time ago). Anyway, the difference
between the twenty-five-year indicative term and the eleven years and six
years actually served, respectively, by the applicants in the present case
would be too obvious to be disregarded if the Court were to proceed to
examine not only the legislative environment but also (and first of all) the
factual situation of the applicants before it.
In fact, we are dealing with even shorter terms from the time when
their petitions for review were dismissed by the Supreme Court (because
only then did they become eligible to apply for a general pardon) to the
time when the applicants requested pardon and commutation of their
sentences to twenty-year fixed terms.
15. Of course, I take account of the fact that the applicants petitioned the
President of the Republic not under the mandatory clemency procedure but
by taking advantage of the possibility of an earlier general pardon (which,
however, was found by the majority to be insufficient to offset the
deficiencies of the mandatory clemency procedure). I also take account of
the fact that the counting of the maximum twenty-five-year indicative term
from the imposition of the life sentence is justified by the ratiocination that
it is from that day onwards that the life prisoner must know what he or she
must do to be considered for release and under what conditions. The
comparison of the time of actual deprivation of liberty after the imposition
of the life sentence with the twenty-five-year maximum indicative term
provided for in the preceding paragraph is not aimed at ignoring the
aforementioned justification. (That said, I am not convinced by the
reasoning whereby in cases where the sentence, on imposition, is
irreducible under domestic law, it would be capricious to expect the
prisoner to work towards his own rehabilitation without knowing whether,
at an unspecified, future date, a mechanism might be introduced which
would allow him, on the basis of that rehabilitation, to be considered for
release (emphasis added). This reasoning migrates from one case to
another (see, for example, Vinter and Others, cited above, 122; Lszl
Magyar, cited above, 53; and Harakchiev and Tolumov, cited above,

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

23

245) and thus uncritically makes personal self-improvement, in essence a

moral phenomenon, virtually a matter of a legal trade-off, devoid of the
element of sincere repentance. To say that expecting the prisoner to work
towards rehabilitation if he or she is not promised the prospect of release is
capricious is, to put it mildly, an overstatement. But this is by the way.)
However, as already mentioned, at the time when the applicants requests
were dismissed by the President of the Republic, even these periods were
significantly shorter: by then, the first applicant had served seven years
(only five years after the dismissal of his petition for review by the Supreme
Court), and the second applicant had served four years (three years after the
dismissal of his petition for review).
Given the fact that the first applicant was convicted of murder committed
with special cruelty and abuse of firearms, aimed at covering up a previous
crime, and the second applicant of double murder and abuse of firearms, the
dismissal by the President of the Republic of their requests for pardon and
the commutation of their sentences does not appear at all unreasonable. I
wonder whether the Head of any other Member State would have adopted a
different decision in these situations, however deficient the national
legislative environment might have been. Thus, Vinter or no Vinter, I am
unable to see how the President of the Republic could be criticised, from the
perspective of the Convention, for his intervention (or, to be more precise
factually, his non-intervention).
16. Again, I ask: did the applicants realistically expect that their request
for pardon could be granted? Could they have entertained a hope of being
pardoned already at that stage?! I admit that they could have hoped, but was
that hope rooted in naivet (in which case it was hardly a hope but a
fantasy) or in the right to hope as a legal category, as expounded in the
Courts post-Vinter case-law?
17. Although the applicants complained that the possibility foreseen by
the new procedure to consider a convicts release only after forty years ...
fully disregarded the changes in the applicants personality and in the level
of their dangerousness to society, or their efforts of changing and being able
to be reintegrated into society (see paragraph 25 of the judgment), there is
not a single word in the whole judgment which could allow for any
consideration of these matters. The applicants progress, if any, is not even
hinted at.
18. This omission is not incidental, because what the judgment is
concerned about is obviously not the applicants factual situation and not
the actual damage done to them by the alleged violations. Thus, it is not
concerned with the question which should be fundamental for this Court in
every case.
That underlying question is: has injustice been done to the applicants in
this particular case?

24

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

My prima facie answer would be: most probably not. Or maybe: not yet.
But I could also assume that there have indeed been violations of the
applicants rights under Article 3. However, it is not possible to
convincingly answer this question without a thorough examination of the
applicants factual situation. And that examination is what the present
judgment lacks.
19. The indifference (or insensitivity) to the applicants factual situation,
which, in my opinion, (also) had to be examined in the present case,
culminates in one more striking omission which cannot be passed over in
silence.
In Vinter and Others (cited above) the Court, having found a violation
(or rather, violations) of Article 3, nevertheless considered it crucial to state:
... the applicants have not sought to argue that, in their individual cases, there are
no longer any legitimate penological grounds for their continued detention. The
applicants have also accepted that, even if the requirements of punishment and
deterrence were to be fulfilled, it would still be possible that they could continue to be
detained on grounds of dangerousness. The finding of a violation in their cases cannot
therefore be understood as giving them the prospect of imminent release ( 131).

The Grand Chamber here set a very important standard against

misinterpretation of its judgment(s). This standard must be followed. It
indeed was (and I hope will be) followed in subsequent cases (see, for
example, Harakchiev and Tolumov (cited above, 268), and Lszl Magyar
(cited above, 59).
Not in the present case though. Here, there is not even a hint of changes
in the applicants personality (if any) or a diminished level of dangerousness
to society (if any), or of efforts to change with a view to being reintegrated
into society (again, if any). Nor is there in the present judgment any caveat
similar to the one quoted above.
20. What does that omission suggest? At the very least it suggests that,
irrespective of any efforts on the part of an applicant aimed at his or her
rehabilitation and eventual reintegration into society (and even where his or
her conduct runs counter to these goals), there will still be a violation of
Article 3 if the Court finds major deficiencies in the domestic legislative
environment. This would also apply to recalled criminals, to those life
prisoners who do not admit their guilt, those who feel no remorse for their
most heinous criminal acts and even those who commit further crimes while
in prison. To all convicted prisoners.
The Court will find a violation no matter what automatically,
indiscriminately, in whatever circumstances.
21. The majority states as follows:
... alone the fact that the applicants can hope to have their progress towards release
reviewed only after they have served forty years of their life sentences is sufficient for
the Court to conclude that the new Hungarian legislation does not offer de facto
reducibility of the applicants whole life sentences. Such a long waiting period unduly
delays the domestic authorities review of whether any changes in the life prisoner

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

25

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 ... (paragraph 48)

Once the earlier general pardon is dismissed, as if on its own merits,

as insufficient (see paragraph 15 above), it is much easier to find the
forty-year waiting period unacceptable. But more important is the
association of the life prisoners hope solely with that period and its
dependence on that factor alone, however important. I fail to see how hope,
which despite the increasingly extensive use of this term in the Courts
case-law pertaining to life imprisonment is (at least primarily) not so
much a category of law as one of psychology and morale, can appear (or
disappear) depending on a statutory period alone. (If personal
self-improvement is sought only for a legal trade-off, then it probably can.)
Hopes grow and are dashed to the ground not because of laws alone.
22. Life prisoners, as a rule, are convicted of aggravated murder (often
multiple) and of other abhorrent and egregious crimes. Therefore, a more
nuanced and thus less dogmatic approach would also have been
desirable, whereby the life prisoners right to hope (of release) is
juxtaposed and contrasted with the no less legitimate hope that the
perpetrators will serve at least some time and make some effort towards
self-improvement before their hope which, as something belonging to
their inner world, no one can take away from them becomes rooted in, or
supported by, what is called the right to hope, that is, hope as a legal
category.
That other hope with which the hope of the life prisoners could be
juxtaposed is the hope of society, including those of its members on whom
the perpetrators inflicted unspeakable suffering and whose lives they made
(yes!) hopeless and at times meaningless by murdering their dear ones. For
some reason, the Court does not speak of their crushed hopes in terms of a
human right or any other right. But there is a world outside the ivory
towers of courts.
23. Again, I take account of the fact that the Courts jurisprudence, as it
stands now, is not very conducive to such nuances. Even so, that case-law
at least the Grand Chamber judgments in Vinter and Others and Murray
(both cited above) does not openly suggest, let alone require, that the
Court should refuse even to look into the factual situation of an applicant,
rather to the contrary (see, for example, Vinter, 119-120, and Murray,
110 and 116).
24. The indifference I mentioned to the factual situation also means that
the Court, at least in this case, is in fact concerned with the quality of law
alone. The concept of the quality of law applicable at the material time
served as a basis for finding a violation of Article 7 in Kafkaris (cited
above, point 4(a) of the operative part), but not of Article 3 (point 1 of the
operative part).

26

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

I can readily accept that the relevant Hungarian law, as such, is not above
reproach from the point of view of Article 3 (and maybe other Articles of
the Convention). I have already stated that the forty-year waiting period is
difficult to explain in strictly penological terms; for some applicants it may
be impracticable in itself (see paragraph 2 above). Still, the Courts case-law
is full of examples in which the application of vague, contradictory or
otherwise faulty legislative provisions did not result in a finding of a
violation of applicants rights under the Convention.
25. This consideration brings me to the third possible answer to the
question raised in paragraph 10 above.
For this Court to judge that there has been a violation of a provision of
the Convention solely on the ground that the applicable national law is
deficient (whatever the nature of that deficiency may be) amounts to an
admission that the institution which actually committed that violation is
none other than the legislator. (Isnt this approach indirectly and tacitly
revealed also by the fact that, in the operative part of the judgment, the word
violation is used in the singular, without adding in respect of each
applicant or something of this kind; compare and contrast Vinter and
Others, cited above, point 1 of the operative part?) At the same time it could
be asserted that the violation existed even before the legislation was applied
to the potential victim. And if the potential victim is a person convicted of
his or her crimes and sentenced to life imprisonment, this sentencing merely
activates, or propels, the violation which formally (legally) was already in
place.
26. In the present case, however, the quality of the Hungarian law,
unsatisfactory as it may be, was explicitly endorsed by the Court itself in its
case-law, including in a recent and almost identical case against Hungary
(Trkly, cited above).
Moreover, the new but still deficient legislation effective as of
1 January 2015 was passed following the Courts judgment in Lszl
Magyar (cited above). That judgment did not deal with the period on expiry
of which a life prisoner could request a review of his or her sentence. It
merely stated that an indeterminate number of years would fail to
comply with the requirements of Article 3 in this regard ( 53). First of all,
a forty-year period, however long, is not indeterminate. True, one could
deduce from Bodein (cited above), although perhaps not so directly from
Vinter and Others (cited above), that a forty-year period does not fit the
definition of what the Government considered to be merely a tendency
(see paragraph 14 above) and could be, to put it mildly, problematic from
the perspective of the Convention. But while Trkly (cited above) was a
valid precedent (and indeed is, until this judgment comes into force) one
which, moreover, sent a clear and direct message to the same respondent
Government as in the present case, the Hungarian Government this was
not so evident.

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

27

27. All law inevitably has its jurisprudential element. All law evolves
through the courts case-law. Courts do not only interpret fully transparent
provisions of legal acts, but much more often provisions that are
uncertain, vague, obscure, ambiguous or downright contradictory. The need
for their interpretation is triggered by the fact that there are disputes over
them. Courts also re-interpret their own case-law and thus develop it, and
sometimes modify it. Thus, there is nothing extraordinary in the fact that
this Court, too, re-interpreted its earlier case-law and modified it. After all,
the concept of the Convention as a living instrument also suggests
precisely such development.
The transition from Kafkaris (cited above) and the post-Kafkaris
case-law to Vinter (cited above), though, was quite swift and radical.
Moreover, it was intertwined and (still) co-exists with the case-law based on
the pre-Vinter approach. This needed to be taken into account by the
Chamber when assessing the quality of the Hungarian law in question. I fail
to see that this was done in the present case.
28. The Courts conclusion cited in paragraph 2 above contains a caveat:
at the present time. The national law, albeit with some flaws, was for a
long time satisfactory for the purposes of Article 3. It is not satisfactory,
however, at the present time. And that present time standard was
brought about by the recent developments in the Courts case-law pertaining
to life imprisonment. This is not to say that these developments are not
welcome in any way. But, especially at this stage, they require the Court to
look at the factual side of the applicants situation with no less attention
than the legislative environment, so that the judgment rendered is not a mere
act of formal(istic) justice but provides a fair deal to both litigating parties.
29. As it is the quality of law which has served as the basis as it
appears, the only basis(!) for finding a violation (or rather, violations) of
Article 3 in the present case, the essential difference between this Court as a
court of human rights and a constitutional court is made more hazy.
The continuation of such an approach would be a rather disturbing
development, one in which the examination of alleged violations of human
rights is expanded so that it includes not only factual infringements of the
rights under the Convention, but also the supervision of norms. This
development would be even more disturbing if the examination of alleged
violations of human rights could be satisfied by that supervision alone,
without looking into whether there have been factual infringements of the
applicants rights under the Convention, that is to say, into whether an
applicant has not only formally but actually suffered injustice. Judicial
policy and judicial will aimed at achieving this shift on a case-by-case basis
(not only and not necessarily in cases under Article 3), employing what
could be described as salami tactics, would mean that we are moving too
fast, too far and possibly in the wrong direction.

28

T.P. AND A.T. v. HUNGARY JUDGMENT - SEPARATE OPINION

However, discussion of these matters of potentially most serious concern

would go far beyond the scope of the present case.