CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 juillet 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 7 July 1986,   the following members being present:                 MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   J. CAMPINOS                   H. VANDENBERGHE              Mrs. G. H. THUNE               Sir Basil HALL                 Mr. H. C. KRÜGER Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (art. 25);   Having regard to the application introduced on 21 August 1985 by M.H. against the United Kingdom and registered on 26 August 1985 under file No. 11731/85;   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 is a United Kingdom citizen, born in 1942, and at present detained in HM Prison Cookham Wood, Rochester, Kent.   She is represented before the Commission by Mr. Michael Fisher of Fisher Meredith and Partners, Solicitors, London.   On 6 May 1966 the applicant was jointly convicted of the murder of two children and further convicted of harbouring a co-accused (Ian Brady) knowing that he had committed another such murder.   Their case obtained much publicity and they were referred to as the "Moors murderers".   The applicant was sentenced to life imprisonment with no recommendation by the trial judge as to the possible date of release. In 1974, while a prisoner in Holloway Prison, the applicant pleaded guilty to the offence of conspiracy to escape and was sentenced to twelve months'imprisonment.   In 1977 she was transferred to Durham Prison, and later to Cookham Wood Prison, Rochester where she is now detained.   Life sentence prisoners are released on licence by order of the Home Secretary on the recommendation of the Parole Board and in consultation with the Lord Chancellor and, if available, the trial judge.   The Home Secretary decides when the case of a life sentence prisoner should be considered for possible release in consultation with a Joint Committee of the Parole Board and the Home Office. Unlike other prison sentences, there is no fixed period after which a life sentence prisoner's case for parole will be considered.   The Joint Committee either recommends when the first formal review of the life sentence prisoner's case should start or when his case should next be brought before it.   This Committee considered the applicant's case several times for a recommendation of its review.   In November 1978 it recommended further consideration in December 1981.   But the first actual review by the competent local review committee at the applicant's prison, which is the first stage in a formal review by the Parole Board, took place in April 1985.   According to the applicant, it was widely reported by the press and not denied by the authorities that this first review committee recommended her release.   The Parole Board did not accept the recommendation of release; no further review will take place until 1990.   On August 1980 the applicant made a first application to the European Commission of Human Rights which was registered under file No. 9089/80.   She alleged violations of Articles 3, 5 para. 4, 6 para. 1, 13 and 14 of the Convention (art. 3, art. 5-4, art. 6-1, art. 13, art. 14).   The application was declared inadmissible by the Commission on 9 December 1980.   COMPLAINTS   In the present application the applicant claims that the length of her imprisonment has been degrading treatment contrary to Article 3 (art. 3); that the review and renewal of her imprisonment in 1985 was inconsistent with the requirements of Article 5 para. 4 (art. 5-4); and that, in general, she has no effective remedy under Article 13 of the Convention (art. 13) for the breach of her Convention rights.   The applicant submits that domestic remedies have been exhausted, since the sentence of imprisonment following conviction was lawful, and the decisions of the Joint Committee and the Home Secretary, concerning the duration or remission of sentence, are not justiciable by the courts.   1.       The applicant submits that she is a victim of a violation of Article 3 (art. 3) in that the excessive length of her detention, extending to more than nineteen years, is in itself and, in the light of its physical and mental effects on the applicant, inhuman and degrading treatment.   The applicant claims that the prohibition of excessively lengthy detentions is becoming a customary rule.   Reliance is placed on the Committee of Minister's Resolution 76, para. 2 of 17 February 1976, on the practice of the Convention countries as regards the length of life imprisonment and the remission of sentence and on a 1977 report of the Parole Board.   Reference is also made to the decision in Kotälla v. Netherlands (No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238).   2.       The applicant has also alleged a violation of Article 5 para. 4 (art. 5-4) in that the lawfulness of her detention was not reviewed by a court and in that the grounds of the renewal of detention for five years in the review of April 1985 were not considered and determined by a "court" under Article 5 para. 4 (art. 5-4).   The Parole Board is neither independent from the executive and the parties, nor does it offer guarantees of judicial procedure.   3.       Finally the applicant alleges a violation of Article 13 (art. 13), since the Commission has held that Article 13 (art. 13) requires a remedy even in cases where an indivual claims to be victim of an alleged violation of the Convention.   THE LAW   The applicant has complained of the excessive length of her detention and her inability to have the lawfulness of her detention reviewed by a court.   She further complains of the lack of an effective remedy in respect of her Convention rights as required by Article 13 of the Convention (art. 13)   1.       As regards Article 3 (art. 3)   The applicant has submitted that the excessive length of her detention constitutes a breach of Article 3 of Convention (art. 3) in itself and because of the adverse physical and psychological effects it has on her. Article 3 (art. 3) provides:   "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".   The Commission notes that the life sentence imposed on the applicant is a sentence imposed by a national court in full compliance with national law.   However, in the application referred to by the applicant, Kotälla v. Netherlands (No. 7994/77, Dec. 6.5.78, D.R. 14 p. 238), the Commission held that issues may arise under Article 3 (art. 3) "in relation to any lawful sentence of imprisonment as regards the manner of its execution and length".   Nevertheless, in the same decision the Commission held that life imprisonment, in itself, is not prohibited under Article 3 (art. 3) or any other Article of the Convention.   The Commission also notes that in the present case the applicant's case was reviewed by the Parole Board in 1985 and will be reviewed again in 1990.   Although the applicant claims that the length of the detention has affected her physically and psychologically in an adverse manner, the Commission recalls that the European Court of Human Rights in the case of Ireland v. United Kingdom (Eur. Court H.R. Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, para. 162) held that "ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (art. 3)".   In the case of Tyrer v. United Kingdom the Court has also held that "the humiliation or debasement" suffered by an individual in order to fall within Article 3 (art. 3) "must attain a particular level and must be in any event other than the usual element of humiliation involved in all judicial punishment" (Eur. Court H.R. Tyrer judgment of 25 April 1978, Series A no. 26, para. 30).   Having regard to the circumstances of the applicant's case, the Commission does not find any evidence that the applicant has suffered inhuman or degrading treatment contrary to Article 3 (art. 3) as these concepts have been interpreted by the Commission and the Court.   2.       As regards Article 5 para. 4 (art. 5-4)   The Applicant has submitted that her rights under Article 5 para 4 (art. 5-4) to a periodic review of the length of her continued detention have been violated since neither the Parole Board nor any of the auxiliary bodies constitute "courts" within the meaning of Article 5 para. 4 (art. 5-4) in that they are not independent from the executive and the parties and they fail to provide sufficient procedural guarantees to the prisoner.           The provisions of Article 5 of the Convention (art. 5) which are relevant to the applicant's contentions read as follows:   "1.   Everyone has the right to liberty and security of person.   No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:   a) the lawful detention of a person after conviction by a competent court;     ...   4.   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."   The Commission recalls that in the applicant's previous application (No. 9089/80, Dec. 9.12.80, D.R. 24 p. 227) it held that no further judicial review of the applicant's detention is required under the Convention since the applicant's detention was justified under Article 5 para. 1 (a) (art. 5-1-a) as "the lawful detention of a person after conviction by a competent court".   The supervision of the lawfulness of such detention under Article 5 para. 4 (art. 5-4) is incorporated at the outset, in the applicant's criminal trial and possible appeal against conviction and sentence (Eur. Court H.R., Vagrancy Case, judgment of 18 June 1971, Series A no. 12, para. 76).   However, the applicant claims that the review of April 1985 by the local review committee and the Parole Board amounted, in fact, to the renewal of the detention for five years and therefore should have been undertaken by a "court" satisfying the requirements of Article 5 para. 4 (art. 5-4), namely independence of the parties, sufficient procedural guarantees and speediness of proceedings.   The Commission, however, finds that it is clear from the facts of the case that the Parole Board did not renew the applicant's sentence but merely refused to recommend her release.   The Commission concludes that, in the present case, the requirements of Article 5 para. 4 (art. 5-4), are incorporated in the applicant's trial and appeal from it.   3.       As regards Article 13 (art. 13)   Finally the applicant has complained that she has no effective remedy at her disposal in respect of her claims.   She has invoked Article 13 (art. 13) which provides that :   "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."   The Commission recalls that the European Court of Human Rights has held in the Silver case that an individual is entitled to an effective remedy before a national authority if he has an arguable claim to be a victim of a breach of one of the provisions of the Convention (Eur. Court H.R., judgment of Silver and others of 25 March 1983, Series A no. 61, para. 113).   The Commission finds, however, that the applicant has not an arguable claim under Article 3 (art. 3) or Article 5 para. 4 (art. 5-4) in respect of which she should have an effective remedy before a national authority.   The Commission concludes that an examination of the applicant's complaints does not therefore disclose any appearance of a violation of the Articles 3, 5, para. 4 and 13 (art. 3, art. 5-4, art. 13) involved by the applicant.   It follows that the applicant's complaints under these provisions should be rejected as manifestly ill-founded within the meaning of Article 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)