CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    The European Commission of Human Rights sitting in private on 3 March 1986 the following members being present:                 MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   G. JÖRUNDSSON                   G. TENEKIDES                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   G. BATLINER              Mrs. G. H. THUNE              Sir   Basil HALL                 Mr. H. C. KRÜGER Secretary to the Commission   Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (art. 25);   Having regard to the application introduced on 3 May 1984 by R.H. against the United Kingdom and registered on 2 September 1985 under file N° 11732/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The applicant, Mr. R.H., is a citizen of the United Kingdom, born in 1954, and at present detained in HM Prison, Featherstone, United Kingdom.   He is represented in the proceedings before the Commission by Messrs. Birnberg & Company, Solicitors, and Mr. Edward Fitzgerald, Barrister-at-law, of counsel.   In 1973 the applicant was sentenced to life imprisonment for the murder of a betting shop manageress in the course of a robbery.   The sentence of life imprisonment is a mandatory sentence for murder in the United Kingdom.   Under Section 1(2) of the Murder (Abolition of Death Penalty) Act 1965 a judge, when sentencing an offender convicted of murder to life imprisonment, can make a recommendation as to the minimum period that prisoner should serve in custody.   The recommendation is directed to the Home Secretary who has the final decision as to whether or not to release a prisoner sentenced to life imprisonment.   No such minimum recommendation was made under this provision in the applicant's case.   Early in 1983 the applicant was transferred from a closed prison to Sudbury Open Prison.   A life sentence prisoner is not moved to an open prison until he is no longer considered to be dangerous. No such decision to transfer to open conditions is taken without the positive approval of the Home Secretary, the Parole Board, and without consulting the trial judge, if available, and the Lord Chief Justice. Such a transfer is understood to be on the basis that the prisoner would   be released provided he had a satisfactory release plan and that within a period of up to two years he had exhibited no untoward behaviour.   After one year in open prison he was told by the Governor that he would be strongly recommended for parole.   He believed that he would be shortly transferred to a hostel and eventually released on licence by early 1985.   On 11 October 1983 the applicant was transferred back to a closed prison (Winson Green Prison, Birmingham).   He was told that there was no question of any allegation of misbehaviour on his part playing a part in this decision.   On the same day the Secretary of State for the Home Department announced a new parole policy in a speech to the Conservative Party Conference.   This policy was further elaborated in a statement to the House of Commons on 13 November 1983.   He stated that he was attentive to   "growing public criticism of the gap between the length of sentence passed and length of the sentence actually served ...   That gap can endanger public confidence in our criminal justice system.   People want to know with some certainty what a sentence that has been passed actually means in practice."   He indicated that he intended to exercise his discretion so that murderers of police or prison officers, terrorist murders, sexual or sadistic murderers of children and murders by firearms in the course of robbery can normally expect to serve at least 20 years in custody. The policy is intended to exclude release on parole for those who have committed any of the aforementioned types of murder unless there are "wholly exceptional circumstances".   The Secretary of State explained that, immediately prior to the introduction of the policy, a few life sentence prisoners had been returned from open to closed prisons.   Their release in the near future would not have accorded with his view of the gravity of their offences.   The applicant, together with other prisoners, introduced proceedings for judicial review of the Home Secretary's decision.   He claimed that the policy was contrary to the object and purpose of the parole system under the Criminal Justice Act 1967 since it fettered the discretion conferred on the Parole Board and the Home Secretary, thereby preventing a proper consideration of individual cases on their merits. He also alleged a breach of Art. 7 of the European Convention on Human Rights (art. 7), claiming that the effect of the policy was to introduce a retrospective punishment by providing that a minimum period of custody would be served when no such minimum period had been recommended by the trial judge under the 1965 Act.   His application was rejected by the High Court on 13 April 1984.   An appeal to the Court of Appeal was also dismissed on 6 July 1983 as was a further appeal to the House of Lords on 15 November 1984.   Lord Scarman, delivering the judgment of the House of Lords, upheld the lawfulness of the new policy as follows:   "The question, therefore, is simply did the new policy constite a refusal to consider the cases of prisoners within the specified classes?   The answer is clearly "no". Consideration of a case is not excluded by a policy which provides that exceptional circumstances or compelling reasons must be shown because of the weight to be attached to the nature of the offence, the length of the sentence and the factors of deterrence, retribution, public confidence, all of which it was the duty of the Secretary of State to consider.   And the Secretary of State accepted the invitation of the board to continue to refer to the board all cases of eligible prisoners notwithstanding the adoption of the new policy."   As regards the submission that the new policy operated as a punishment or penalty, Lord Scarman stated:   "...   The sentence of the court is in law the punishment.   The disappointment of the expectation which prisoners may have that under the parole system they will not have to serve the whole of a sentence in prison may be distressing but is not a punishment or penalty which goes beyond the sentence of the court.   Thus one is thrown back to the question of the lawfulness of the policy to be followed in the consideration of their cases.   If the policy be lawful, the disappointment of the expectation can be no ground for judicial review:   if it be unlawful, the prisoner's case for relief does not depend upon a description of his disappointment as a punishment."   The applicant's case has subsequently been reviewed by the Parole Board in accordance with the new policy.   He has received a covering letter informing him that he would have to serve at least 15 years' imprisonment.   He has also written to the Home Secretary submitting that his case be treated as "exceptional" because of his defeated expectations.   This petition has met with no success.   The procedure which will now apply to the review of the applicant's case for release on parole is as follows:-   -        His case will next be referred to the Parole Board at a date         which the Home Secretary considers appropriate from the         point of view of retribution and deterrence.   In determining         this date the Home Secretary will principally have regard         to his 20 year minimum rule, although he will also consult         the judiciary;   -        The Home Secretary's agreement to continue to refer to the         Parole Board all cases that were previously referred to it         is on condition that the Parole Board take account of the         new parole policy.   COMPLAINTS AND SUBMISSIONS   Article 7 (art. 7)   The applicant complains that the effect of the Home Secretary's policy constitutes a breach of Art. 7 of the Convention (art. 7) since it serves to impose on him a penalty that is harsher than that originally imposed on him at the time of sentence, and applicable at the time of his crime.   He makes the following submissions:   -        That the drastic restriction of the eligibility of prisoners for release in a way not contemplated by the legislation renders the penalty more severe than at the time of its imposition.   -        His sentence must be seen as premissed upon the parole machinery set up under the Criminal Justice Act 1967.   Under this system his sentence provided for earlier release at such time as accorded with the views of both Parole Boad and the Home Secretary. Moreover, at the time of his life sentence it was contemplated that his case would be reviewed in the light of various mitigating factors such as age, the lack of premeditation, capacity for reform and other factors concerning the offence.   The effect of the policy of a minimum 20-year sentence is to render the sentence more harsh than that originally imposed.   -        The trial judge could have made a minimum recommendation under Section 1(2) of the Murder (Abolition of death penlty) Act 1965. Where there was no such recommendation, a prisoner was entitled to assume that his case would not be decided by reference to a fixed term of years.   The effect of the Home Secretary's 20-year minimum rule is the same as if the trial judge had recommended a minimum sentence.   Finally, he refers to the decision of the U.S. Supreme Court in Marrero v.   Warden of Louisberg Penitentiary (1974) 417 U.S. 653 where it was decided that the introduction of new legislation withdrawing parole eligibity constituted the imposition of an additional penal sanction.   Article 5, para. 4 (art. 5-4)   It is submitted that the continued detention of a prisoner without the possibility or availability of parole may, after the lapse of a considerable length of time, give rise to an issue as to whether the continued detention of the prisoners is justified under Art. 5, para. 1, sub-para. a of the Convention (art. 5-1-a).   Accordingly there must be provision for review of the continued lawfulness of the applicant's detention by a court.   Since the Parole Board does not conform to the necessary requirements of a "court" for the purposes of Art. 5, para. 4 (art. 5-4), the applicant has been denied the right to have the lawfulness of his continued detention reviewed as provided for in Art. 5, para. 4 (art. 5-4).   Article 3 (art. 3)   The applicant submits that on the particular facts of his case the unexpected reversal of his legitimate expectations of release constitutes a breach of Art. 3 (art. 3) since it amounts to inhuman and degrading treatment or punishment.   THE LAW   1.       The applicant complains that a sudden change in parole policy in the United Kingdom effectively increased his sentence from that applicable at the time his offence was committed and from that imposed at his trial.   He submits that the change in policy whereby he will only become eligible for release on parole after having served 20 years of his sentence of imprisonment raises issues under Arts. 7, 5, para. 4, and 3 of the Convention (art. 7, art. 5-4, art. 3).   As regards Article 7 (art. 7)   2.       Art. 7 provides as follows (art. 7):   1.       No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.   Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.   2.       This Article (art. 7) shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.   3.       The Commission recalls that the applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery.   It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Art. 7 (art. 7) arises in this respect.   4.       Furthermore, in the opinion of the Commission, the "penalty" for purposes of Art. 7, para. 1 (art. 7-1), must be considered to be that of life imprisonment.   Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years' imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the sentence as opposed to the "penalty" which remains that of life imprisonment.   Accordingly, it cannot be said that the "penalty" imposed is a heavier one than that imposed by the trial judge.   As regards Art. 5, para. 4 (art. 5-4),   5.       The applicant complains that he is unable to have the lawfulness of his continued detention reviewed by a court as required by Art. 5, para. 4 (art. 5-4).   6.       This provision provides as follows:   "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."   7.       However, the Commission recalls that where a person is detained following conviction by a competent court the supervision of the lawfulness of his detention under Art. 5, para. 4 (art. 5-4) is incorporated at the outset in his criminal trial and the appeal from it.   The Commission does not consider, therefore, that the applicant can derive from Art. 5, para. 4 of the Convention (art. 5-4) a right to judicial review of his sentence in the light of a change in parole policy which does not alter the legal basis of his detention (see Eur. Court H.R., Vagrancy Case, judgment of 18.6.71, para. 76; also Dec. No. 9089/80, D.R. 24 pp. 227-231).   As regards Article 3 (art. 3)   8.       Finally, the applicant complains that the unexpected reversal of his expectations of release constitutes inhuman and degrading treatment or punishment in breach of Art. 3 (art. 3).   9.       Art. 3 (art. 3) states:           "No one shall be subjected to torture or to inhuman         or degrading treatment or punishment."   10.      The Commission has held that the notion of inhuman treatment includes at least such treatment as deliberately causes severe suffering, whether mental or physical, and that an individual's treatment may be said to be degrading if it grossly humiliates him before others or drives him to act against his own will or conscience (See Ireland v. the United Kingdom, Comm. Rep. 25.1.76, Yearbook 19 pp. 745 and 752).   11.       However, the European Court of Human Rights has stressed that "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art. 3 (art. 3).   The assessment of this minimum is, in the nature of things, relative.   It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim".   (Eur. Court H.R., Ireland v. the United Kingdom, 18.1.78, para. 162).   12.       The Commission recalls that the applicant was detained in an open prison at the time of the change in parole policy and enjoyed a reasonable prospect of release on parole within a period of two years. It has no doubt that his recall to a closed prison and the sudden change of parole policy and consequent frustration of his expectations of release must have caused him real distress.   13.       However, in the opinion of the Commission, the weight to be attached in penal policy to such factors as retribution and deterrence and the determination of the public interest are matters which fall within the wide discretion of the competent authorities.   In addition, the Commission has previously found that Art. 3 (art. 3) cannot be read as requiring that an individual serving a sentence of life imprisonment must have that sentence reconsidered by a national authority, judicial or administrative, with a view to its remission or termination (Dec. No. 7994/77, 6.5.78, D.R. 14 p. 240).   Finally, in the circumstances of the present case, the Commission notes that the applicant's case will in any event continue to be referred for consideration to the Parole Board, albeit within the context of the new parole policy.   14.       Against this background, the Commission does not consider that the change in parole policy falls into a category of treatment which could constitute a breach of Art. 3 (art. 3) as that provision has been understood by the Commission and Court.   15.       Accordingly, the Commission considers that the application must, as a whole, be rejected as manifestly ill-founded within the meaning of Art. 27, para. 2, of the Convention (art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission          President of the Commission   (H. C. KRÜGER)                        (C. A. NØRGAARD)