With life imprisonment, certain differences and similarities between continental Europe and Asiacan be found, due to the history and culture of these two regions and also because of developments in the international community and the integration processes of the world. When comparing life imprisonment in these two regions, an unavoidable reality is that the death penalty in Europe has been almost completely repealed, while in Asia it is widely used. Consequently, life imprisonment is the maximum punishment in most continental European states, while it is the second most severe punishment - after the death penalty - in some Asian retentionist states. Therefore, to compare life imprisonment systems in continental Europe and Asia is to compare the most severe penalty in abolitionist with the second most severe penalty in retentionist states. Furthermore, another important fact is that some European states, such as Norway, Iceland and Portugal, stipulate long term imprisonment as the maximum and the most severe punishment in their penalty system. Long term imprisonment is not in fact life imprisonment, but this article still examines it as the most severe penalty in the relevant system. Considering the length limitation, this article cannot cover all life imprisonment systems in European and Asian states, but takes life imprisonment systems in European states such as Germany, the Netherlands and Hungary, and Asian states such as Japan, Singapore and China, as examples for analysis. To review a life imprisonment system, the prevalence of life imprisonment in the criminal law needs to be examined, along with the conditions for its use as a sentence, and its termination mechanism. In addition, it needs to be pointed out that the aim of this article is to comparatively examine life imprisonment in these two regions at the system level, rather than offer a deep theoretical discussion.
The prevalence of life imprisonment refers to the distribution of crimes punishable by life imprisonment prescribed in the criminal law. In the German Criminal Code, 18 provisions provide for crimes punishable by life imprisonment, accounting for 5.02 % of a total of 358 effective provisions in the Special Part.[1] 6 of the 18 provisions are crimes related to offences causing a common danger; 3 of the 18 provisions are offences against sexual self-determination. By comparison, there are 23 provisions in the Special Part prescribing crimes punishable by life imprisonment according to the Hungarian Criminal Code, accounting for 7.28% of a total of 316 provisions providing for crimes in this Part.[2] This proportion is higher than that of Germany. 4 of the 23 provisions providing for crimes punishable by life imprisonment are related to offences against the State; 3 of the 23 provisions to crimes against humanity; 3 provisions to war crimes; 3 provisions to drug trafficking; 3 provisions are offenses against public security; 2 relate to offenses against personal freedom; 2 are crimes against the judicial system; and so on. In the Netherlands' Criminal Code, there are 32 provisions relating to a crime for which life imprisonment may be imposed,[3] accounting for 6.54% of a total of 489 effective provisions providing for crimes in Books Two and Three. This proportion is higher than that of Germany's Criminal Code, but lower than that of the Hungarian Criminal Code. Among these 32 provisions, 9 of them relate to serious offences against the security of the state, and 8 sections to serious offences endangering the general safety of persons or property. Looking to Asian states, the proportion of crimes punishable by life imprisonment is generally higher than in continental Europe. Specifically, Japan is a state retaining the death penalty in its penalty system, and life imprisonment serves as an optional punishment for this. In Japan's Criminal Code, there are 13 provisions providing for crimes punishable by life imprisonment, accounting for 6.34% of a total of 205 provisions providing for crimes in Part II.[4] Among these 13 provisions, there are 9 provisions providing for crimes punishable by the death penalty and by life imprisonment, which serves as an option punishment for the death penalty.[5] We also can see that the crimes punishable by life im-
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prisonment are distributed in different chapters. Compared with life imprisonment in Singapore, there are 35 provisions in the Singapore Penal Code providing for crimes punishable by life imprisonment, accounting for 8% of a total of 437 provisions providing for crimes in general.[6] The proportion of crimes punishable by life imprisonment in Singapore's Penal Code is higher than in Japan. Among these 35 provisions, there are 10 provisions providing for crimes punishable by death and life imprisonment, of which the latter serves as an option for the death penalty. Among these 35provisions, there are 11 provisions providing for offences affecting the human body, 8 for offences against the State, 8 for robbery and gang-robbery, and 4 for the offences of giving false evidence and offences against public justice. However, the proportion of offences punishable by life imprisonment in China's Criminal Law is the highest; there are currently 102 crimes punishable by life imprisonment in the Specific Provisions of China's current Criminal Law, accounting for 21.79% of a total of 468 crimes,[7] and 46 of these are stipulated together with the death penalty.
Based on the analysis of these six states' Criminal Codes, life imprisonment can be applied in the following two main situations. Firstly, life imprisonment can be applied for action crimes, which have been proved to have already been committed and where its consequences are not material; normally, these kinds of actions crimes are felonies. For example, Section 80 of the German Criminal Code, which is related to the crime of preparation for a war of aggression, provides that "whoever prepares a war of aggression...shall be liable to imprisonment for life";[8] Sections 81 and 211 also have similarly provisions.[9] By comparison, the number of action crimes punishable by life imprisonment in the Netherlands's Criminal Code is more than in the German Criminal Code. In the Netherlands' Criminal Code there are 20 provisions providing life imprisonment for action crimes, accounting for 62.5% of a total of 32 provisions providing for the crimes punishable by life imprisonment.[10] The proportion of provisions in the Criminal Code is higher than that in the German Criminal Code, in which there are 8 provisions providing life imprisonment for action crimes, accounting for 33.33% of a total of 24 provisions.[11] However, in China's Criminal Law, there are 6 action crimes punishable by life imprisonment, accounting for 5.8% of a total of 102 crimes punishable by life imprisonment. These crimes include treason, aiding the enemy, forming or leading a terrorist organization, aircraft hijacking, intentional homicide, and stealing, spying into or buying military secrets for, or illegally offering such secrets to agencies, organizations or individuals outside the territory of China. Life imprisonment is a mandatory sentence and is provided for these crimes without any consideration of circumstances, and all of these six crimes can be punishable by death. However, in the Penal Code of Japan, there are 10 provisions providing for action crimes punishable by life imprisonment, accounting for 58.82% of a total of 17 provisions.[12] This proportion is higher than that of China, Hungary and Germany but lower than that of Netherlands and Singapore. In Singapore's Penal Code, there are 28 provisions providing for an action crime punishable by life imprisonment, accounting for 80% of a total of 35 provisions.[13] Secondly, life imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law, such as crimes resulting in the death of the victim, those having serious consequences or circumstances, or for especially serious cases. For example, there are 15 of the 18 sections which provide for crimes punishable by life imprisonment under the legally prescribed circumstances in the German Criminal Code, accounting for 83.33% of a total of 18 provisions,[14] which is more than that of the Hungarian Criminal Code in which there are 16 provisions providing crimes punishable by life imprisonment under legally prescribed circumstances, accounting for 66.67% of a total of 24 pro-visions.[15] The proportion of the number of provisions providing for crimes punishable by life imprisonment under legally prescribed circumstances in the Netherlands' Criminal Code is lower than that of Hungarian Criminal Code and the German Criminal Code. There are 12 provisions, accounting for 37.5% of a total of 32 provisions in the Netherlands' Criminal Code.[16] Regarding the legally prescribed circumstances in these three states, most of them relate to a crime resulting in death, and the rest are provided for serious situations or circumstances. Considering Asian states, the situation is similar to that in Europe. In Japan's Penal Code, life imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law, including a perpetrator with special status, as in Article 77 (1.i), which
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provides for a situation in which "he or she is a ringleader",[17] or for a crime causing a special set of circumstances, such as Article 119, which provides for a situation where "a person ... causes a flood to damage a building...",[18] or where the crime results in the death of another person, as in Articles 126 (3),146, 181, 240and 241[19]. There are 7 provisions, accounting for 41.18% of a total of 17 provisions. Similarly, in the Singapore Penal Code, there are 7 provisions providing for life imprisonment for an offender under certain legally-prescribed circumstances, accounting for 20% of a total of 35 provisions.[20] For instance, Article 307 provides for a situation in which "hurt is caused to any person by such act",[21] Article 314 provides for a situation in which an "act done with intent to cause miscarriage is done without the consent of the woman",[22] and Article 326 provides that crimes in which "grievous hurt [is caused] by special instruments",[23] shall be punished with imprisonment for life. In China's Criminal Law, most crimes punishable by life imprisonment are imposed on a perpetrator under certain legally-prescribed circumstances. 96 crimes can be punished by life imprisonment in this way, accounting for 94.2% of a total of 102 crimes.[24] These circumstances include the crime scene, the object of the crime, the criminal consequences, the means of the crime, and the position of the perpetrator in a criminal organization, and so on. According to the above analysis, life imprisonment is mainly imposed on the offender under the legally prescribed circumstances in these six states' Criminal Code.
As for the termination mechanism for life imprisonment, generally, there are two main approaches around the world, i.e., life imprisonment with possibility of release (LWPR) and life imprisonment without any possibility of release (LWOR). LWOR is a punishment that the "removes any uncertainty at the time of sentencing about the possibility of rehabilitation by condemning the inmate to die in prison."[25] According to the Report "Cruel and Unusual: U.S. Sentencing Practices in a Global Context"(SPGC), there are 38 countries out of the world's 193 known to have life imprisonment without parole statutes, accounting for 20%, and 21 countries which have no discernible statutory provision allowing for such a sentence.[26] The Netherlands is one of the 21 states with LWOR, whose Criminal Law does not stipulate any provision about terminating the inmate's life sentence, and it has been criticised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in that, "in the Netherlands, life imprisonment really means imprisonment for the rest of one's life."[27] As of 13[th] May 2016, there were 33 persons serving a life sentence in the Netherlands' prisons.[28] Regarding the LWOR, a Dutch national, James Clifton Murray, alleged that, in violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms(the Convention), his life sentence imposed by the Netherlands' Court was de jure and de facto irreducible and made a complaint about the Kingdom of the Netherlands to the European Court of Human Rights (ECtHR) on 22 February 2010,[29] which concluded that "the Article 3 violation was aggravated by the existence of a discretionary and opaque pardon system".[30] However, according to Article 122 of the Constitution of the Netherlands, an inmate who is sentenced to life imprisonment can be released early by a pardon granted by Royal Decree upon the recommendation of a court designated by Act of Parliament,[31] and it "may be granted only if there are 'changed circumstances', for instance, health reasons."[32] In fact, the Dutch judicial authorities have already become concerned about this situation and have been trying to change it; on June 2[nd], 2016 the State Secretary for Security and Justice, Klaas Dijkhoff, addressed a letter to the Dutch Parliament indicating his plan to introduce a review mechanism for life sentences after the offender has served 25 years of the sentence.[33] In the CPT Report, the CPT welcomes and recommends that "necessary legislative and administrative measures be taken rapidly to provide persons sentenced to life imprisonment with a clear avenue for consideration of release, based upon objective criterion, after a defined time period."[34] By comparison, life imprisonment in the Hungarian Criminal Code is relatively more humane than that of Netherlands. The Hungarian Criminal Code provides that "in the event a sentence of life imprisonment is imposed, the court shall specify the earliest date of eligibility for parole, or shall preclude any eligibility for parole";[35] if the court does not preclude eligibility for parole with a sentence of life imprisonment, the earliest date of release on parole shall be after the prisoner has served 25 years, or at least 40 years, and the duration of parole shall be not less than 15 years.[36] However, the court may deny the possibility of parole for a sentence of life im-
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prisonment when the crime is related to the crimes provided by Section 44 of the Hungarian Criminal Code,[37] which was the case in Törköly v Hungary. (In this case, Tibor Törköly was convicted by the Bács-Kiskun Regional Court, as a multiple recidivist guilty of attempted grave bodily assault and of aggravated murder committed with special cruelty, and was given a life sentence with eligibility for release after 40 years, on 25 July 2014.[38]) Furthermore, if the offender is a repeat offender with a history of violence or has committed an offense defined in Section 91 Subsection (1) providing for crimes committed in the framework of a criminal organization, the court shall deny the possibility of parole for the perpetrator,[39] and thus the perpetrator will not be released from prison, as for example, in the case of László Magyar v. Hungary. In this case, László Magyar, was convicted of murder, robbery and several offences, and was sentenced to life imprisonment without eligibility for parole.[40] In this case, the ECtHR's judgement held that "Hungary would be required to reform the system of review of whole life sentences to guarantee that life prisoners can see what they must do to be considered for release and under what conditions."[41] Actually, by 2013, the Hungarian legislature had already adopted a law (Act LXXII of 2014), which was a response to the judgement in the case of László Magyar v. Hungary and modified the new Penitentiary Code's rules on life imprisonment by inserting a new subtitle for the mandatory pardon proceedings for persons sentenced to life imprisonment without the possibility of conditional re-lease.[42] The pardon process, which needs to be agreed to by the convict, is deliberated by a Pardon Committee consisting of five judges and the final decision on pardon will be made by the President of the Republic of Hungary.[43] Therefore, life imprisonment in Hungary can de jure and de facto be terminated earlier by a presidential pardon. Even though the Hungarian legislature has amended its laws and introduced a new automatic and mandatory review system of life imprisonment after the inmate has served 40 years of his or her sentence in prison, the ECtHR, in the case of T.P. and A.T. v. Hungary, held that there had been a violation of Article 3 of the ECHR. This was because a prisoner is made to wait 40 years before he or she can expect to be considered for clemency for the first time, which is too long, and such a period was significantly longer than the maximum recommended time frame (25 years).[44] Looking at life imprisonment in Germany, according to the Section 57a of the German Criminal Code, in normal circumstances, an inmate who is sentenced to life imprisonment may be released early from prison after serving 15 years of the sentence in prison if he or she has met the relevant requirements.[45] While deciding to grant early release to an inmate sentenced to life imprisonment, the second sentence of Section 57(1)and Section 57(6) shall apply mutatis mutandis,[46] i.e. the court shall particularly consider the personality of the inmate, his or her previous history, the circumstances of the offence, and any potentially relevant elements indicating his or her personal danger to others, or other factors;[47] and the court may deny early release from a life sentence if the perpetrator makes insufficient or false statements, as provided in Section 57(6).[48] If imprisonment for life has been imposed as an aggregate sentence the individual offences shall be comprehensively evaluated in determining the particular seriousness of the prisoner's case.[49] Regarding this Section on aggregated life imprisonment, there were two relevant cases, and they both appealed to the ECtHR, i.e., Streicher v. Germany and Meixner v. Germany. These two perpetrators were not released after serving 15 years of their sentence in prison. In the case of Streicher v. Germany, Dieter Streicher was convicted of murder and attempted murder and sentenced to life imprisonment, and the Ansbach Regional Court held that the perpetrator was emotionally cold, had a tendency to overreact, and was psychopathic and antisocial. Basic on these facts and relevant reports, on 25 March 2004 the Regensburg Regional Court refused to suspend his sentence on probation and decided that the "particular gravity" of the applicant's guilt and his personality warranted extending the sentence to at least 26 years' imprisonment in total.[50] In the case of Meixner v. Germany, Rolf Friedrich Meixner was convicted of a number of offences, including triple murder, which he had committed while on probation and had been sentenced to life imprisonment in 1986. In 2006, the Gießen Regional Court, the Court of Appeal and the Federal Constitutional Court subsequently refused the request from Rolf Friedrich Meixner for early release, relying on an expert's opinion which concluded that there was a high risk of the applicant again committing crimes when released, and that this warranted extending the sentence to at least 25 years' imprisonment.[51]
By comparison, life imprisonment in Japan seems more lenient than in the preceding three states, i.e. the Netherlands, Germany and Hungary. Under the Article 28 of the Penal Code of Japan, when a person sentenced to imprisonment evinces
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signs of substantial reform, the person may be paroled by a disposition of a government agency after that person has served 10 years in cases of a life imprisonment.[52] Therefore, an inmate who is sentenced to life imprisonment may be released from prison after serving 10 years of the sentence in prison if he or she satisfies the conditions for parole. However, parole may be revoked in one or more situations: i) when a further crime is committed within the period of parole and a fine or greater punishment is imposed for the crime; ii) when a fine or greater punishment is imposed for a crime committed before the parole; iii) when a fine or greater punishment is imposed for another crime before the parole is implemented; iv) when the person fails to observe any of the conditions of the parole.[53] According to a report issued by the Ministry of Justice of Japan, in the period from 1996 to 2015, there were 576 perpetrators newly sentenced to life imprisonment, and by the end of 2015, there were 1835 inmates serving a sentence of life imprisonment in prisons in Japan. In this decade, 71 inmates were released on parole; and 53 of these 71 inmates were granted parole again after their preceding parole had been revoked; 64 inmates died in prison while serving their sentence of life imprisonment in these 10 years.[54] The minimum term to be served for parole to be granted when sentenced to life imprisonment as stipulated in the Penal Code of Japan is 10 years, but the yearly average length of sentence served during life imprisonment before being released on parole is in fact more than it, i.e., it was 31 years and 6 months in 2015, 31 years and 4 months in 2014, 35 years and 2 months in 2011, 35 years and 3 months in 2010, although it was significantly less - 25 years and 1 month - in 2006.[55] By comparison, commutation, which is another way for the inmate to be earlier released from prison, seems more lenient than parole in Japan. According to Articles 66 and 67, punishment may be reduced in accordance with the extenuating circumstances of a crime, and it may only be reduced in the light of circumstances;[56] and inmates who are sentenced to life imprisonment may be released early from prison after serving 7 years of the sentence if there are one or more statutory grounds for a reduction of the punishment.[57] However, we cannot find the judicial statistical data to support these arguments.
Looking to Singapore, the provisions relating to the termination mechanism for life imprisonment are stipulated in the Constitution, the Criminal Procedure Code and the Prison Act, rather than in the Penal Code. According to Singaporean laws, the President is the only person who has the power to make a decision to grant pardon, remission, or commutation. Therefore, the procedures and details of the President's power to grant a pardon, reprieve, remission or commutation are mainly provided in the Constitution of Singapore, i.e. the President, on the advice of the Cabinet, can grant a pardon, or any reprieve or respite, either indefinitely or for such a period as the President may think fit, of the execution of life imprisonment pronounced on such an offender, or remit the whole or any part of such sentence by law.[58] The Criminal Procedure Code of Singapore briefly cites this provision and interprets the procedure, i.e., where an application is made to the President, the President may require the presiding judge of the court before or by which the person is convicted to state his opinion as to whether the application should be granted or refused, and the judge shall state his opinion accordingly, and then, if there are one or more conditions the President thinks have been fulfilled , the President may grant a pardon, reprieve or respite of the execution of life imprisonment, or remit or commute any part of the sentence of life imprisonment by law.[59] In addition, the President may commute a sentence of death to life imprisonment or a fine or both, or commute life imprisonment to a fine.[60] As for remission, the Prison Act has a special Division providing remission orders for prisoners sentenced to life imprisonment. Article 50O provides that this Division shall apply to a prisoner who is sentenced to life imprisonment for an offence committed on or after 21[st] August 1997, whether or not he or she is also sentenced to one or more terms of imprisonment; or a prisoner who is sentenced to death for an offence committed on or after 21[st] August 1997, or which has been commuted to life imprisonment; or a prisoner who is sentenced to be detained during the President's pleasure under section 213 of the repealed Criminal Procedure Code.[61] According to Article 50P, where a prisoner to whom the Division applied has served 20 years of his sentence, the Minister shall review the prisoner's case and may direct the Commissioner to make a remission order in respect of the prisoner, and then the prisoner may be released on this remission.[62] When a remission order is made, any default sentence to which the prisoner was sentenced shall be remitted; the sentence of life imprisonment and any other sentence of imprisonment imposed on the prisoner shall be suspended and the sentence shall be remitted when the remission order expires.[63]
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When we look at the termination mechanisms for life Imprisonment in China, there is certainly a difference from the preceding five states. In the present Criminal Law, a twin-track approach is adopted to terminate life imprisonment, i.e. LWPR and LWOR. As regards LWPR, an offender who is sentenced to life imprisonment can be released from prison through commutation and/or parole, both of which can be applied at the same time. According to Article 78, commutation operates in two situations, namely, discretionary commutation and mandatory commutation. Discretionary commutation of life imprisonment refers to a situation in which the penalty "may" be commutated if the offender conscientiously observes prison regulations, accepts education and reform through labour and shows true repentance or performs meritorious services while serving his sentence,[64] but commutation is not certain to be granted and its likelihood is lower than with mandatory commutation, which is a situation in which the penalty "shall" be commutated, and this is certain to be granted by law if the perpetrator performs any of the major meritorious services provided in the Criminal Law. The sentence of life imprisonment may be commuted to a fixed-term imprisonment of 22 years if the offender's performance meets the conditions for discretionary commutation;[65] but if the offender shows true repentance and performs major meritorious services, the sentence may be commuted to a fixed-term imprisonment of 19 to 20 years.[66] In addition, life imprisonment reduced from the death penalty with reprieve may be reduced to a fixed-term imprisonment of 25 years after the offender has served two years of the sentence if he/she shows true repentance or performs meritorious services. Parole is another significant method of early release from prison. In accordance with Article 81 of the Criminal Law, an offender sentenced to life imprisonment who has actually served not less than 13 years of imprisonment may be granted parole if he/she conscientiously observes the prison regulations, accepts education and reform through labour, shows true repentance and is not likely to commit any crime again. As for LWOR, according to Article 44(4) of the Ninth Amendment to the Criminal Law of China, for a convict who commits the crimes of embezzlement or bribery and is sentenced to the death penalty with reprieve, the court may, depending on the circumstances of the crime, at the same time decide, after commuting the suspension of execution to life imprisonment on the expiry of the two year period, to imprison him or her for life, without commutation or parole.[67] In accordance with the judicial interpretation made on 28[th] March 2016, a convict who has embezzled or taken bribes of not less than 3 million Yuan (CNY), may, in a case where the circumstances are especially serious, the social impact is especially severe and heavy losses are caused to the state and the people, be sentenced to the death penalty. But, if he/she surrenders voluntarily, performs any meritorious service, confesses the crime and so on, and if immediate execution is not deemed necessary, the death penalty with a two year suspension of execution may be pronounced, and at the same time a decision taken to prohibit commutation and parole after the death penalty with reprieve commuted to life imprisonment, according to the circumstances.[68] So far, this has already been applied to three convicts.[69]
In many states, not only has the death penalty been removed from their penal system, but life imprisonment has also been outlawed. According to the SPGC, "thirty three countries set maximum sentences at a limited number of years";[70] Norway and Portugal are two of these 33 countries. Even though long-term imprisonment is not in fact life imprisonment, a joint long-term imprisonment in some cases may last beyond the duration of a person's natural life; conversely, even though a prisoner may be sentenced to life imprisonment, he or she may be released earlier after serving a certain term of the sentence; in another words, he or she will serve a long-term imprisonment de facto rather than an imprisonment for life. Therefore, this section will examine long-term imprisonment and take Norway and Portugal as examples.
In fact, long-term imprisonment in these two states is the maximum penalty and also the severest punishment, and, generally, it is only provided for serious crimes. The Penal Code of Norway makes imprisonment one of the 6 ordinary penalties in Sections 29 and 33.[71] Imprisonment may be imposed for a term of 14 days to 15 years, or in the cases dealt with in sections 60a, 61 and 62 for a term not exceeding 20 years; in cases in which it is specially provided, it shall be for a term not exceeding 21 years.[72] Imprisonment in this Penal Code means imprisonment for a limited period
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unless it is otherwise expressly stated.[73] Section 62 provides that "if any person has by one or more acts committed more than one felony or misdemeanour punishable by imprisonment or detention, a joint custodial sentence shall be imposed which must be more severe than the highest minimum penalty prescribed for any of the felonies or misdemeanours and must in no case be more than twice the highest penalty prescribed for any of them."[74] That means the joint sentence of imprisonment could not be more than 42 years for the special cases. Based on a thorough analysis of the Norwegian Penal Code, the longest term of imprisonment in some provisions for certain felonies generally features two expressions, i.e., "not exceeding 15 years" and/or "not exceeding 21 years". These two expressions will be taken as the criteria when analysing long-term imprisonment in the Penal Code of Norway, in which there are 33 provisions providing for felonies punishable by long term imprisonment.[75] These account for 9.42% of a total of 350 provisions providing for felonies and misdemeanours in Parts II and III of the Penal Code. Among these 33 provisions, there are 8 provisions providing for felonies against the independence and security of the State, and 8 provisions providing for felonies against public safety, and 6 provisions providing for felonies in the public service. Considering the Penal Code of Portugal, the duration of imprisonment is also strictly provided for, i.e. "imprisonment penalty usually has a minimum duration of one month and a maximum duration of 20 years and in the cases prescribed by law the maximum limit of imprisonment is 25 years and in no case should it be exceeded."[76] In this case, it seems that the maximum duration of imprisonment in Portugal is longer than in Norway. Furthermore, the Portuguese Penal Code provides that if the perpetrator has committed several crimes before the sentence for any of them has become definite, he or she will be sentenced to a single penalty, and if the applicable penalty has the sum of the penalties concretely applied to the various crimes, its maximum limit will not exceed 25years of imprisonment.[77] Under this provision, the maximum duration of a joint sentence of imprisonment is 25 years, in another word, if the perpetrator is given a joint sentence of imprisonment for his or her various crimes, he or she will be released after serving 25 years of the sentence in prison. In the Portuguese Penal Code, there are four long terms, serving as the maximum penalty, stipulated respectively for certain relatively serious crimes, i.e., "less than 15 years", "less than 16 years", "less than 20 years" and "less than 25 years". It therefore may be stated that imprisonment for more than 15 years is a long-term imprisonment. Based on these criteria, we can see there are 21 provisions providing for crimes punishable by imprisonment for more than 15 years in the Portuguese Penal Code,[78] which account for 8.20% of a total of 256 provisions providing for crimes in the Specific Part. Among these 21 provisions, there are 5 provisions providing for crimes against national independence and integrity, 3 for crimes against national military and defence capabilities, 3 for crimes against humanity, and 3 for crimes against personal liberty.
As regards the restrictions on the application of long-term imprisonment, in the Norwegian Penal Code, long-term imprisonment not exceeding 21 years cannot be imposed on a perpetrator who is younger than 18 years when he or she commits the crime, and the penalty should be reduced to lighter one.[79] There is also a similar restriction on the application of the penalty provided in the Portuguese Penal Code, i.e., long-term imprisonment can only be applicable if the crime is committed before the perpetrator has completed 25 years of age and he or she has fulfilled a minimum of 1 year of imprisonment.[80]
As for the conditions for passing a sentence of long-term imprisonment, in both the Norwegian and the Portuguese Penal Code, long-term imprisonment is mainly imposed on a perpetrator in two cases: 1) long term imprisonment can be applied for action crimes. This situation is also the same with the previously mentioned life imprisonment in the abolitionist and retentionist states. In this case, long-term imprisonment may be imposed on a perpetrator if he or she has committed a certain act prescribed in the relative provisions in the Penal Code; for example, Section 83 of the Norwegian Penal Code provides that any person who unlawfully attempts to cause Norway or any part of the realm to be brought under foreign rule or incorporated into another State, or any part of the realm to be detached, or who aids and abets thereto, shall be liable to imprisonment for a term not exceeding 21 years.[81] These provisions account for 24.24% of a total of 33 provisions providing for crimes punishable by long-term imprisonment. These crimes provided in the Norwegian Penal Code are mainly related to felonies against the
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independence and security of the State, against the constitution of Norway and the Head of State, felonies concerning the exercise of civil rights and felonies in the public service. By comparison, the proportion of action crimes punishable by longterm imprisonment in Portugal is higher than in Norway. In the Portuguese Penal Code, there are 8 provisions relating to crimes punishable by longterm imprisonment, accounting for 38.10% of a total of 21 provisions. These kinds of action crime are serious crimes, such as murder, slavery (bringing another person to the state or condition of a slave), genocide (intent to destroy, in whole or in part, a national, ethnic, racial or religious group).[82] 2) Long term imprisonment can be applied to an offender under certain legally-prescribed circumstances according to the law. Specifically, these circumstances provided in the Norwegian Penal Code may include criminal behaviour which causes serious heavy damage to the country or death, or results in severe damage to the defence of the realm, or death or serious injury to the body, or brings other results,[83] or where the criminal behaviour obstructs the public authority, or seriously interferes with public servants, as for instance, in Section 97; and where the criminal behaviour is committed by use of a special instrument or method, such as armed force or by exploiting the fear of intervention by a foreign power.[84] In the Portuguese Penal Code, these legally-prescribed circumstances are also similar, i.e., they include criminal behaviour resulting in the victim's death or which causes other danger or harm to another person or the public; for example, Article 132 provides for homicide which causes another person to die in circumstances that show perversity.[85] They also include the criminal means; for example, Article 160 deals with "means of violence, or threat",[86] and Article 214 deals with "damage with violence".[87] In all, there are 12 provisions legally prescribing circumstances as applicable conditions for long term imprisonment, accounting for 57.14% of a total of 21 provisions.
With long-term imprisonment, the inmate is normally certain to be released from the prison where they serve their sentence when the period of the sentence has expired. However, there is another way for the inmate to be released early, namely release on probation. For instance, Section 39f of the Norwegian Penal Code states that "releasebefore expiry of the period of preventive detention shall be effected on probation with a probation period of from one to five years";[88] when the convicted person or the prison and probation service applies for release on probation, the prosecuting authority shall submit the case to the District Court, which will decide it by a judgment;[89] if the prosecuting authority consents to a release on probation, the prison and probation service may decide on such a release;[90] when a release on probation is effected by the court such conditions may be imposed as in the case of a conditional sentence prescribed in the Penal Code; the court may also impose a condition to the effect that the convicted person shall be monitored by the prison and probation service.[91] Section 42 of the Norwegian Execution of Sentences Act makes a further regulation, "the Correctional Service may release a convicted person on probation when the said person has served two-thirds of the sentence and not less than 60 days, including any period spent remanded in custody."[92] By this provision, the prisoner who is sentenced to long-term imprisonment may be released early after serving two-thirds of their sentence in prison. If half the sentence of imprisonment has been served in prison, including any period spent remanded in custody, the Correctional Services may release a convicted person on probation if there are special reasons for doing so.[93] However, a convicted person who has been sentenced abroad to imprisonment for a term exceeding 21 years, and who is transferred to Norway to serve the sentence there, may be released on probation after serving a term of not less than 14 years' imprisonment.[94] According to the Annual Report of 2015, 12 inmates or prisoners were released from prison after serving 10 to 15 years of their sentences; and 51 inmates or prisoners, accounting for 0.8% of the total, were released after serving 5 to 10 years of their sentence in prisons.[95] In the same year, 24 convicted persons were sentenced to imprisonment for 15 to 17 years, according to the Annual Report of 2015.[96] In comparison, the Portuguese Penal Code states that "until two months before reaching the minimum limit of the relatively undetermined penalty, the prison administration sends the court its grounded opinion about the concession of conditional release;"[97] and, with the convict's consent, the court sets him or her at conditional liberty when two-thirds of the penalty, and a minimum of six months, has been fulfilled. If conditional release is not granted, or is revoked, the court will apply provisions relating to security measures.[98] Furthermore, under Article
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127, the penalty may also be annulled by amnesty, pardon or indult.[99] According to the Portuguese Constitution, the Assembly of the Republic of Portugal has the power to grant generic amnesties and pardons. [100] According to the Portuguese Annual Internal Security Report of 2016, as of31st December 2016, there were 13,799 prisoners serving their sentence in Portuguese different prisons, and around 5% of them had been sentenced to more than 12 years but less than 20 years, while 2.5% of them had received sentences of more than 20 years but not more than 25 years.[101]
The life imprisonment systems in continental Europe and Asia are very different because of the history and culture of these two regions, but there are certain similarities due to the development of the international community and the integration of the world in term of legal systems. Based on the above analysis, there is a relatively low proportion of crimes punishable by life imprisonment in these three European states and two Asian states, except in China, where the proportion is the highest and where most of these crimes are also punishable by death. As an important punishment, life imprisonment can be applied in two main situations, i.e., it can be applied to serious action crimes, and it can be applied under certain legally-prescribed circumstances, according to the law. In these six states, the proportion of the former is lower than that of the latter. In all six states, an inmate given life imprisonment may normally be conditionally released early from prison after serving a certain number of years of the sentence, but the release conditions are very different, as are the number of years to be served. In addition, in China, an inmate who has committed corruption-related crimes and has been sentenced to the death penalty with reprieve when it is commuted to life imprisonment cannot be released. As regards Norway and Portugal, long term imprisonment is the maximum punishment in the penalty system, and the proportion of crimes which can be punished in this way is relatively low; it can be applied in the same two situations as life imprisonment. Generally, an inmate who is sentenced to long term imprisonment can be conditionally released early after serving a certain number of years of the sentence. ■
NOTES
[1] See the German Criminal Code, which is the version promulgated on 13 November 1998, Federal Law Ga-zette[Bundesgesetzblatt] I p. 3322, last amended by Article 1 of the Law of 24 September 2013, Federal Law Gazette I p. 3671, and by the text of Article 6(18) of the Law of 10 October 2013, Federal Law Gazette I p. 3799. These provisions include Sections 80, 81, 94, 100, 176, 176a, 178, 211, 212, 239a, 251, 306, 306, 306b, 307, 308, 309, 316a, and 316c.
[2] These 316 provisions specifically refer to the provisions from Section 142 to Section 457. These 23 provisions include Sections 142, 143, 144, 148, 149, 155, 160, 176, 177, 179, 190, 192, 254, 257, 258, 260, 284, 314, 320, 322, 326, 442, and 445. See Act C of 2012 of the Criminal Code of Hungary, promulgated on 13 July 2012.
[3] These 32 provisions include Sections 92, 93, 94, 95, 95a, 97, 97a, 98a, 102, 108, 114a, 115, 117, 120a, 121, 140a, 157, 161 quarter, 164, 166, 168, 170, 174, 176a, 282a, 282b, 288, 288a, 289, 304a, 385a, and 415a. See the Act of 3 March 1881, the Criminal Code of the Netherlands.
[4] Act No.45 of 1907, the Penal Code of Japan. These 14 provisions include: Articles 77 (1), 82, 108, 119, 126, 146, 148, 154, 181, 199, 225-2, 240, and 241.
[5] These provisions include: Articles 77, 82, 108, 119, 126, 146, 199 and 241. See ibid.
[6] See the Statutes of the Republic of Singapore: Penal Code (chapter 224), Original Enactment: Ordinance 4 of 1871, the revised edition of the Laws Act (Chapter 275), in force from 01.04.2015. These 35 provisions include: Sections 121, 121A, 121B, 122, 124, 125, 128, 130, 130B, 130E, 131, 132, 194, 195, 222, 225, 302, 304, 305, 307, 311, 313, 314, 326, 329, 364, 371, 396, 400, 409, 412, 430A, 436, 438, and 449.
[7] "Chart Showing the New Crimes in the Criminal Law", available at: <http://www.zuiming.net/51.html .> (Last visited: September 2nd, 2017). Criminal Law of People Republic of China, Order No. 30, 2015.
[8] See the German Criminal Code, above no.1, section 80.
[9] Ibid, sections 81 and 211.
[10] These stipulations include Sections 92, 93, 94, 95, 95a, 97, 97a, 98a, 102, 108, 114, 120a, 140a, 176a, 288, 288a, 289, 304a, and 415a. See the Criminal Code of the Netherlands, above no.3.
[11] These provisions include Sections 142, 143, 148, 149, 155, 254, 260, and 314. See the Hungarian Criminal Code, above no.2. Considering that Section 149 does not only provide for life imprisonment for action crimes, but also provides that life imprisonment can be applied to an offender under certain legally prescribed circumstances according to the law, here I count24 provisions, although in fact, there are only 23.
[12] These provisions include Articles 77 (1.ii), 82, 108, 126 (1), 148, 154, 199, 225-2, 240 and 241. See Penal Code of Japan, above no.4.
[13] See the Singaporean Penal Code, above no. 6. These 28 provisions include Articles 121, 121A, 121B, 122, 124, 125, 128, 130, 130B, 130E, 131, 132, 194, 195, 302, 305, 311, 313, 364, 371, 396, 400, 409, 412, 430A, 436, 438 and 449.
[14] These provisions include sections 94, 100, 176, 176b, 177, 212, 239a, 251, 306, 306a, 306b, 307, 308, 309 and 316. See the German Criminal Code, above no.1.
[15] These provisions include Sections 144, 149, 160, 176, 177, 179, 190, 192, 257, 258, 284, 320, 322, 326, 442 and 445. See the Hungarian Criminal Code, above no.2.
[16] These provisions include Sections 115, 117, 157, 161 quarter, 164, 166, 168, 170, 174, 282a, 282b and 385. The Criminal Code of the Netherlands, above no.3.
[17] See the Penal Code of Japan, above no.4, Article 77 (1.ii).
[18] See ibid, Article 119.
[19] See ibid.
[20] See the Singaporean Penal Code, above no. 6. These 7 provisions include Articles 222, 225, 304, 307, 314, 326 and 329.
[21] Ibid.
[22] Ibid.
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[23] Ibid.
[24] The Criminal Law of China, above no.7.
[25] Connie de la Vega, Amanda Solter, Soo-Ryun Kwon and Dana Marie Isaac: "Cruel and Unusual: U.S. Sentencing Practices in a Global Context", University of San Francisco (USF) School of Law's Center for Law and Global Justice, May, 2012, 21. Available at <https://www.cpcjalliance.org/wpcontent/uploads/2013/04/Cruel-And-Unusual.pdf .> (Last visited September 8[th], 2017).
[26] Ibid,25. See also, Davide Galliani, "The Reducible Life Imprisonment Standard from a Worldwide and European Perspective" Global Jurist, vol.16, issue 1, 2016, 84.
[27] "The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Report about the Prison in Netherlands", Council of Europe, CPT/Inf (2017)1, Strasbourg, 19 January 2017, 31. Available at:
< https://rm.coe.int/16806ebb7c > (Last visited September 8[th], 2017).
[28] Ibid.
[29] Murray v. The Netherlands, (Application no. 10511/10), Judgment, Strasbourg, 26 April 2016.
[30] Ibid, 71.
[31] The Constitution of the Kingdom of the Netherlands 2008, Article 122.
[32] See CPT Report, above no.27, 31.
[33] Ibid.
[34] Ibid, 6.
[35] The Hungarian Criminal Code, above no.2, Section 42.
[36] Ibid, Section 43.
[37] Ibid, Section 44 (1).
[38] See Törköly v Hungary, application no. 4413/06, ECtHR (Second Section), Decision of 05.04. 2011.
[39] Hungarian Criminal Code, above no.2, Section 44 (2).
[40] See László Magyar v. Hungary, application no. 73593/10,
[20] May,2014.
[41] Ibid.
[42] See Bárd Petra, "The Hungarian Life Imprisonment Regime in front of Apex Courts I.", Blogsite of the Institute for Legal Studies (18 June 2015), available at: <http://jog.tk.mta.hu/en/blog/2015/06/the-hungarian-life-imprisonment > (Last visited: September 11[th], 2017).
[43] Ibid.
[44] T.P. and A.T. v. Hungary, application nos. 37871/14 and 73986/14.
[45] The German Criminal Code, above no.1, Sections 57a(1) and 57(1).
[46] Ibid, Section 57a (1)2nd sentence.
[47] Ibid, Section 57(1) 2nd sentence.
[48] Ibid, Section 57 (6).
[49] Ibid, Section 58.
[50] Streicher v. Germany, application no. 40384/04, 2009.
[51] Meixner v. Germany, application no. 26958/07, 2009.
[52] Penal Code of Japan, above no.4, Article 28.
[53] Ibid, Article 29.
[54] Ministry of Justice of Japan, "The Status of Execution of Life Imprisonment and the Status of Release the Inmates Imposed on Life Imprisonment on Parole", available at <http://www.moj.go.jp/content/001208315.pdf > (Last visited: September 15[th], 2017).
[55] Ibid.
[56] See Penal Code of Japan, above no.4, Articles 66 and 67.
[57] Ibid, Article 68.
[58] See The Statutes of the Republic of Singapore: Constitution of the Republic of Singapore (Chapter const), Original enactment: S 1/63, the revised edition of the Laws Act (Chapter 275), 1st July, 1999, Article 22P (1).
[59] See The Statutes of the Republic of Singapore: Criminal Procedure Code (Chapter 68), original enactment: Act 15 of 2010, revised edition of the Laws Act (Chapter 275), 31st August 2012, Article 333(1).
[60] See Ibid, Article 334.
[61] The Statutes of the Republic of Singapore: Prison Act (Chapter 247), original enactment: Ordinance 17 of 1933, the revised edition of the Laws Act (Chapter 275), 30th December 2000, Article 50O.
[62] Ibid, Article 50P (1).
[63] Ibid, Article 50Q.
[64] The Criminal Law of China, above no.7, Article 78.
[65] The Supreme People's Court's Provisions on Several Legal Issues concerning the Specific Application of the Law in Handling Commutation and Parole Cases, Legal Interpretation No.23, 2016, Articles 7 and 8.
[66] Ibid, Article 7.
[67] The Ninth Amendment to the Criminal Law of the People's Republic of China, Order No.30, 2015, Article 44(4).
[68] The Supreme People's Court's and Supreme People's Procuratorate's Interpretation of Several Legal Issues Concerning the Specific Application of the Law in Handling Criminal Cases of Embezzlement and Bribery, Legal Interpretation No.9, 2016, Articles 3 and4.
[69] These three convicts are Bai Enpei, Wei Pengyuan and Yu Tieyi. All of them are sentenced to the death penalty with reprieve for having committed corruption crimes, and are not allowed to be granted commutation and parole after the death penalty with reprieve is reduced to life imprisonment. See "Three arch corrupt officials, such as Bai Enpei, are sentenced to life imprisonment without release. What kinds of signals are released?", available at: Pengpai News <http://www.szxinghan.cn/Social/13972494.html > (Last visited: September 22[nd], 2017)
[70] Connie de la Vega, Amanda Solter, Soo-Ryun Kwon and Dana Marie Isaac, above no.25, 25.
[71] The General Civil Penal Code, Act of 22 May 1902 No.10, amended by the Act of 19 June 2015 No.65, Section 15.
[72] Ibid, Section 17.
[73] Ibid.
[74] Ibid, Section 62.
[75] These provisions include Sections 83, 84, 86, 86b, 88, 97, 98, 99, 99a, 100, 101, 102, 110, 117, 117a, 147a, 148, 151a, 152, 152b, 153, 154, 162, 169, 192, 196, 225, 231, 232, 233, 245, 268 and 317.
[76] Código Penal Português (the Portuguese Penal Code), Article 41.
[77] Ibid, Article 77.
[78] Ibid, these provisions include Articles 131, 132, 158, 159, 160, 210, 214, 223, 239, 241, 244, 287, 300, 308, 309, 310, 313, 317, 325, 326, and 327.
[79] The General Civil Penal Code, above no.71, Section 55.
[80] See Código Penal Português (the Portuguese Penal Code), above no.76, Article 85.
[81] The General Civil Penal Code, above no.71, Section 83. This case can also include Sections 86, 100, 117a (not exceeding 15 years), 148, 151a, 153 and 225.
[82] See Código Penal Português (the Portuguese Penal Code), above no.76. These crimes are dealt with in the Articles 131, 159, 239, 244, 287, 300, 309, and 327, respectively.
[83] See The General Civil Penal Code, above no.71. These include Sections 84, 86b, 88, 102, 110, 117a, 147a, 152, 153, 154, 231, 268 and 317.
[84] Ibid. These include Sections 98; 232, 233 and 245.
[85] Código Penal Português(the Portuguese Penal Code), above no.76, Article 132.
[86] Ibid, Article 160.
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[87] Ibid, Article 214.
[88] The General Civil Penal Code, above no.71, Section 39f.
[89] Ibid.
[90] Ibid.
[91] Ibid, Section 38g.
[92]The Execution of Sentences Act, Section 42. Available at< http://www.kriminalomsorgen.no/getfile.php/2018208.823.ytdxsvbtbe/Straffegjennomf%C3%B8ringsloven+engelsk.pdf > (Last visited: September 29[th], 2017)
[93] Ibid.
[94] Ibid.
[95] Kriminalomsorgen, "Kriminalomsorgens årsstatistikk -2015", 6. Available at <http://www.kriminalomsorgen.no/publikasjoner.242465.no.html > (Last visited: September 29[th], 2017)
[96] Ibid, 39.
[97] Código Penal Português (the Portuguese Penal Code), above no.76, Article 90.
[98] Ibid, Articles 90, 92 and 94.
[99] Ibid, Article 127.
[100] Portugal's Constitution of 1976 with Amendments through 2005, Article 161.
[101] Ministry of Justice of Republic of Portugual (Ministra da Justiça), "Annual Internal Security Report 2016 (Relatório Annual de Segurança Interna 2016)", 133. Available at <http://www.portugal.gov.pt/pt/pm/documentos/20170331-pm-rasi-2016.aspx > (Last visited: September 29[th], 2017).
Lábjegyzetek:
[1] The Author is PhD Candidate, University of Debrecen Géza Marton Doctoral School of Legal Studies.
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