Impact case study database

DvZS and CA’s pioneering body of work on life imprisonment has impacted both law and practice in two inter-related and significant ways. First, their research has changed the law on life imprisonment by ensuring a prospect of release for life-sentenced prisoners across several jurisdictions. Secondly, they have influenced international prison reform institutions in their approach to dealing with the issue of life imprisonment.

Ensuring a prospect of release for life-sentenced prisoners

DvZS’s extensive research (R1-R3) shaped the ECtHR’s seminal judgment on life imprisonment ( Vinter and Others v. UK, ECtHR GC 9 July 2013). The QC, leading the team for the applicant, has commented that as a member of the applicant’s legal team, DvZS used his research (R1-R3) and “encyclopaedic knowledge” (A) to develop arguments that persuaded the Court to apply the ‘right to hope’ principle to life imprisonment. R3 was directly cited at first instance ( Vinter v. UK, 17 January 2012, para. 55), and its arguments followed by the ECtHR Grand Chamber in 2013. The QC commented: “ The Grand Chamber judgment adopted much of the Applicants’ argument, determining that imprisonment for whole life, without a real and effective means of eventual conditional release, was an affront to human dignity which underpins the Convention rights. Whole life imprisonment without an effective mechanism for release was inhuman and degrading, in violation of Article 3. … Based on his [DvZS’s] research, his constructive criticism and development of our extensive written submissions was invaluable, and his input into the oral submissions assisted in identifying the points that might be exercising the seventeen-judge panel from across the Council of Europe countries. This last point is of great importance. Oral submissions to the Grand Chamber are strictly time-limited and there is no time to develop the full legal argument. Professor van Zyl Smit’s research brought to the team a nuanced knowledge of relevant issues, which would be of particular note to judges from different jurisdictions, allowing focus on those points.” (A)

The Vinter judgment has been more influential than any other in establishing as a worldwide human rights principle, that all prisoners sentenced to life imprisonment must have a realistic prospect of release from prison and that appropriate procedures should be put in place to give effect to the hope of release. Although the Vinter decision was given in July 2013, the establishment of the ‘right to hope’ as propagated in the research of DvZS (R1-R4) through the Vinter judgment, has changed the law and practice of life imprisonment across the world since (A), and it is these changes since August 2013 that we are claiming in this impact case study. In the first instance, the effects were felt in Europe where all countries are bound to apply the European Convention on Human Rights as interpreted by the ECtHR:

• In the United Kingdom, the principles developed in Vinter were clearly accepted as binding in England and Wales by the Court of Appeal in McLoughlin (2014). However, the Court of Appeal found that no change to domestic statutory law was required as it could be applied in a way that incorporated these principles. This view was upheld by the Grand Chamber of the ECtHR in Hutchinson v. UK (2017), which left the Vinter principles in place by confirming (at para 72, B) that, “the whole life sentence can now be regarded as reducible [in England and Wales] in keeping with Article 3 of the ECHR [European Convention on Human Rights]”, but that they could be implemented without changing English statutes. The practical impact of Vinter in England and Wales is therefore that the existing law relating to prisoners serving whole life sentences now has to be interpreted in a way that is more favourable to their possible release (A, B).

• In the Netherlands, the Supreme Court relied on the reasoning developed in the Vinter decision, based on R1-R3, to order the government to change the law to provide an effective procedure for the release of life-sentenced prisoners (Decision of the Hoge Raad, 5 July 2016, para. 3.2) (C). Prior to this, there was no effective procedure for the release of life prisoners, except for a pardon, which in practice was never granted. In response, in 2017, the rules governing release in the Netherlands were amended to establish a process of release of such prisoners ( Besluit Adviescollege levenslanggestraften Stcrt. 2017, 32577) (C). These were reviewed by the Supreme Court, which found explicitly that they met the Vinter standards (Decision of the Hoge Raad, 2017, para. 2.3) (C). The result is that all life prisoners in the Netherlands now have their cases reviewed after a set period and their prospects of release have increased.

• Lithuania, is an example of where the absence of an appropriate release procedure was challenged before the ECtHR and changes resulted from the ECtHR applying the Vinter principles (based on R1-R3) and ordered Lithuania to amend its legislation ( Matiošaitis v. Lithuania, 23 May 2017) (D). Lithuania enacted new legislation on the release of life prisoners (Amendment to Article 51 of the Criminal Code of Lithuania adopted on 19 March 2019). The ECtHR has confirmed explicitly that it meets the Vinter standards ( Dardanskis v. Lithuania, (2019, para.27) (D), thus confirming that life prisoners will now be entitled to be considered for release after a prescribed period, by a fairer procedure than before.

The arguments about a ‘right to hope’ and a ‘right to be considered for release’, as developed in the Vinter case which was underpinned by R1-R3 and propagated in R4, have had a reach and impact far beyond Europe, as courts around the world have found them persuasive:

• In Zimbabwe, the Supreme Court were persuaded by the reasoning in Vinter (underpinned by R1-R3) to rule that it was unconstitutional to leave decisions on the release of life-sentenced prisoners to the President alone ( Makoni v. Commissioner of Prisons (2016) (E). The Court also ordered that, until the government of Zimbabwe came up with new legislation, all life-sentenced prisoners should be considered for parole in the same way as other sentenced prisoners, thus significantly increasing their prospects of release.

• In Belize, the Court of Appeal relied on the reasoning in Vinter (based on R1-R3) to declare life sentences without parole unconstitutional ( R v. August, 4 November 2016) (F). The government of Belize responded in 2017 by amending the sentencing provisions in the Criminal Code relating to murder and by introducing a parole board to consider the release of life-sentenced prisoners. These changes were approved by the Caribbean Court of Justice, which also relied on the reasoning developed in Vinter ( August and Gabb v. The Queen, 2018, para. 88) (F). The impact of Vinter was to bring about a legal change that has given all life-sentenced prisoners in Belize a realistic prospect of release.

• In Canada, in R v. Klaus (2018, paras. 132-134) (G) the Queen’s Bench in Alberta, referred to DvZS’s research (R2, R3), as well as to the arguments applied in the Vinter judgment, based on R1-R3, to establish the principle that every prisoner must have a prospect of release. In this case, the prisoner had committed three murders. He received a life sentence with a minimum term of 25 years before release should be considered for each murder. The question was whether the minimum terms should run consecutively, meaning that 75 years would have to elapse before he could be considered for release. By applying the arguments in Vinter, that the prospect of release had to be realistic (R1-R3), the court held that the minimum periods had to run concurrently, and that it should be 25 years in all. The direct impact of the Vinter principle was therefore that this life prisoner was given a much clearer prospect of release than he would otherwise have had.

In addition, in Namibia, the research of DvZS and CA (R6) has also ensured that all prisoners should have a prospect of release, albeit by a different legal route. Namibian law has long recognised that prisoners sentenced to life imprisonment have a right to a prospect of release. However, fixed term sentences of 100 years plus were being imposed by judges to ensure that certain offenders would never be considered for release, and the Namibian Supreme Court had to decide whether such sentences were acceptable. When asked for advice by the Court, DvZS and CA were able to provide a draft chapter of their co-authored book (R6) that explained that such sentences were informal forms of life imprisonment and should be subject to the same safeguards as formal life sentences. In 2018 in S.v. Gaingob (H), the Supreme Court of Namibia referred to R6 as an “illuminating work” and discussed the research at length (paras. 61ff). The judgment relied directly on the arguments in R6 to outlaw very long fixed-term sentences as a type of ‘informal life imprisonment’, and as an unconstitutional means of avoiding the requirements that life sentences should meet. The practical impact of this declaration of unconsitutionality has been that offenders in Namibia cannot have any have sentences imposed on them that effectively deny them a prospect of release.

Influencing the international penal policy reform agenda

DvZS and CA’s research project on ‘life imprisonment worldwide’ (R5, R6) has impacted the international penal policy reform agenda on the imposition and implementation of life sentences. The findings from R6 have shaped and advanced the work of PRI, an independent, international human rights NGO that develops and promotes fair and effective responses to criminal justice problems worldwide. This is corroborated by the Director for Policy and International Advocacy at PRI: “PRI has used this key publication (R6) to advance its work on reforming life imprisonment…The research has enabled us to build a legitimate evidence base, strengthening our influence and increasing our visibility to an international policy and practitioner audience…[It] has provided the foundation on which we have built our reform and advocacy work..[And] has gone on to shape the priorities of our organisation more than any other academic publication during the last ten years…” (I).

In 2018, PRI published a jointly authored policy briefing on ‘Life Imprisonment’ with DvZS and CA to draw attention to the human rights issues raised by the sanction of life imprisonment (J). The briefing (published in Arabic, English, French, Japanese and Russian), which draws on the research findings and statistics from R5 and R6, highlights key concerns to policymakers and practitioners who impose and implement life sentence regimes, and calls on the United Nations and its member states to reconsider and update international guidance on the sanction of life imprisonment. “These pressure points work together to create momentum for change through reforms. The policy briefing was significant in raising international awareness with policymakers, civil society and academic networks” (I). Collectively, this work resulted in PRI and the researchers taking leadership for a new world coalition involving an international network to tackle the issues raised by the research (R5, R6) and galvanised momentum for change (J). This has resulted in a targeted programme of events, and has led to an increased focus on the issue of life imprisonment at the United Nations Office of the High Commissioner for Human Rights (OHCHR), and at the United Nations Office on Drugs and Crime (UNODC) (I-K). “The collaboration including the research has created a major opportunity for PRI to help shape the thinking and actions of the United Nations OHCHR in Geneva and New York, and the UNODC in Vienna. Guided by the research, PRI organised a series of events including two key ‘side-events’ at the UN Crime Commission in Vienna (in 2018 and 2019), where we engaged with national delegates representing their countries, diplomats, UN officials, civil society, etc. and gained momentum in highlighting the human rights issues raised by life imprisonment...” (I) .

In September 2019, following the campaign and key meetings, the OHCHR agreed that life imprisonment was an issue that had been neglected at the international level, compared to their human rights work on the death penalty, and invited PRI and the researchers to run a workshop to present the research and recommendations (R5, R6) to 20 Human Rights Officers, including the Secretariat of the Subcommittee for the Prevention of Torture and also high-level staff members in the OHCHR. In addition, in October 2019, PRI was granted an extended meeting in New York with the then UN Assistant Secretary-General for Human Rights to discuss life imprisonment, which led to him openly praising PRI and the research findings on social media, and a request for a joint event at the UN General Assembly. On 17 October 2019, in response to discussing the research findings with PRI, the UN Assistant Secretary General for Human Rights stated on Twitter: “Death penalty rightly gets attention. But far more people serve life sentences. Many with no hope of parole and extra violence in prison. Understandably, some call it ‘civil death’. Hats off to PRI for flagging these largely unknown concerns” (J). Furthermore, as a result of the advocacy by PRI and the researchers, the UNODC agreed to have two sessions at their Crime Commission meetings in Vienna in 2018 and 2019 that focussed specifically on life imprisonment and the need for global reform (I). This increased focus at the UN has led to the following significant impacts:

• Firstly, Austria (who leads the annual resolution on the administration of justice at the Human Rights Council) committed to supporting life imprisonment reform. This led to the issue of life imprisonment being added to the resolution adopted by the Human Rights Council in September 2019 (K). Specifically, it called for more proportionate sentencing, including a review of life sentences. “ This is significant as it is an important reference at the UN level and will form one of hopefully many recognitions that life imprisonment sentences are problematic, have a human rights impact and that action needs to be taken… it forms a basis for advocacy around standard-setting on life imprisonment at the UN level which can result in new international law and ultimately accountability.” (I)

• Secondly, the UNODC has agreed to work with the researchers to produce a ‘Handbook on Life Imprisonment’, based on the findings from R5 and R6 and to include technical guidance on the practice of life imprisonment for prison operation, staff and management as part of the UNODC’s international criminal justice series. “ This decision is significant, as the last guidance from the UN on life imprisonment was published in 1994, and the Handbook series is seen as the cornerstone for establishing practical implementation of criminal justice systems at the national level.” (I)

This extensive engagement and influence led to the researchers being invited to co-host an event dedicated to life imprisonment reform at the UN Crime Congress in Kyoto, Japan in April 2020 with PRI (I). Due to Covid-19, the event was postponed to March 2021. Based on the research (R5, R6) it was confirmed by the Assistant Secretary General of the United Nations at the event on 9 March 2021 that life imprisonment reform, with a particular focus on the abolition of whole life sentences and life imprisonment for children, will be a major item of the UN's agenda. As the Crime Congress sets the UN priorities for worldwide criminal justice reform for the next five years, it is anticipated that the research (R5, R6) will demonstrate further significant global impact.