CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1987

.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 }                    AS TO THE ADMISSIBILITY OF                     Application No. 12118/86                   by Peter WEBSTER                   against the United Kingdom             The European Commission of Human Rights sitting in private on 4 March 1987,   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                   H. VANDENBERGHE                   F. MARTINEZ                 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;           Having regard to the application introduced on 7 December 1985 by Peter WEBSTER against the United Kingdom and registered on 17 April 1986 under file N° 12118/86;           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 citizen of the United States of America, born in 1945, who at the time of lodging his application was detained in H.M. Prison Maidstone, Kent.   He was apparently released and deported to France in February 1986.           The applicant served a five year prison sentence during which he was refused parole, in August 1985.   The applicant lodged a petition of complaint to the Home Secretary against this refusal, in which petition he relied on his deteriorating physical health and the fact that arrangements could easily be made for him to rejoin his family in France on his deportation from the United Kingdom.   He also made allegations of discrimination in respect of the grant of parole to foreign prisoners when deportation is not contested.   In respect of his latter allegations he was apparently allowed access to certain prison records at Maidstone prison, which records he claims substantiate his complaint.           The Home Secretary replied to the applicant's petition on 3 December 1985 informing him as follows:           "No person is excluded from parole consideration and early         release on licence by his race or nationality.   These are         not factors determining a man's suitability for release         on licence ....           You are advised that as each case is considered on its         individual merits you will not find it helpful to compare         your case with that of another prisoner ....           The Secretary of State is satisfied that you have received         the appropriate medical care treatment and advice throughout         your sentence, and understands that there has been little         change in your general physical condition.   He also understands         that you declined a transfer to Wormwood Scrubs where there         were physiotherapy facilities not available at Maidstone.           I am afraid that medical circumstances alone cannot determine         a parole decision."           The Secretary of State therefore refused to order a further review of the applicant's requests for parole.           Pursuant to a request for information from the Rapporteur as to the parole opportunities of foreign prisoners (Rule 40 para. 1 of the Commission's Rules of Procedure), the Government provided the following information:   "There is a local Review Committee for every prisoner which, by virtue of the Local Review Committee Rules 1967 (S.I. 1967/1462), is charged with the responsibility of reviewing the case of all prisoners who are eligible for release on licence under section 60 of the Criminal Justice Act 1967.   That section provides that the Home Secretary cannot release any prisoner on licence unless recommended to do so by the Parole Board or, in certain classes of cases agreed with the Parole Board, by the prison's Local Review Committee."           All Local Review Committee members and all members of the Parole Board are given the following note following their appointment:   "PAROLE AND DEPORTATION   Note by the Home Office   All prisoners, whatever their nationality, who are serving determinate sentences of more than about ten and a half months' imprisonment are eligible for parole consideration after they have served one-third of the sentence or six months from the date of sentencing whichever expires the later.   The general policy on parole and deportation is that prisoners should not have their chances of parole reduced because they are liable for deportation and may have no realistic plans for release in this country.   Where it is evident during the review, therefore, that deportation is a possibility (e.g. where a prisoner has been recommended for deportation by the court) no account should be taken of the possibility of deportation when a prisoner's suitability for release on licence is being considered.   Each case should be assessed on its individual merits against the general criteria for parole selection but, in those cases where (due to the liability for deportation) no realistic plans for release in this country are available, consideration should proceed as if, in effect, the release plans were satisfactory.   The Home Secretary has a dual responsibility for both parole and deportation but it is   not until a favourable recommendation has been made and accepted that final consideration can be given to any further action which might be appropriate under the Immigration Act 1971.   Because of this, it is not the usual practice to advise a prisoner of the outcome of a parole review until the question of possible deportation has been examined. Generally speaking a prisoner will not be released on licence until the decision has been made as to whether he or she is to be removed from the country but, in some cases, it may be considered acceptable to allow parole to proceed although the decision on deportation has not been reached.   Where a prisoner is not to be removed from the country at the time of release on licence, it will be necessary to establish and approve release plans before a release date can be agreed.   Contrary to the advice given in paragraph 402 of the Local Review Committee Notes for Guidance, it will not be necessary for the LRC to reconvene to consider the suitability of release plans obtained by the Parole Unit.   Such consideration will be undertaken at the Home Office - in consultation, as appropriate with the Parole Board - in order to reduce the delay in completing the review.   Those prisoners who are released on licence before deportation consideration has been concluded are advised prior to release that their release on licence will not affect their liability to be deported.   In those cases where the Home Secretary considers a prisoner should not be released on licence pending the outcome of deportation proceedings but eventually decides that deportation is the proper course, a deportation order is made and put into effect on the day on which that person would otherwise have been released on parole.   There is no need for release plans to be obtained in these cases.   If, on the other hand, a potential deportee whose parole had been considered without a release plan appeals successfully against deportation, release on licence in this country will proceed only when a suitable release plan has been constructed and approved by the Home Office in consultation, as appropriate, with the Parole Board."           The applicant commented that this note fails to specify whether or not in practice prospective deportees do receive a similar rate of parole, compared with United Kingdom nationals.   He contends that the statistics which he collected "strongly indicate that they do not, i.e. that foreign nationals are discriminated against in the application of parole law under which prisoners are deprived of liberty.   Administrative details, such as the order in which parole and deportation decisions are generally taken (mentioned in the Home Office Note) constitute no justification whatever for the unequal and discriminatory application of law."     COMPLAINTS           The applicant complains, on behalf of himself and other prisoners who are not United Kingdom citizens and who have or had deportation recommendations as part of their sentence, that foreign prisoners are discriminated against by the Home Office Parole Board. He claims that statistically the rate of parole is far less for foreign prisoners, but that there is no justification in law for such a practice.   The applicant contends that he has been a victim of a violation of Article 5 of the Convention, read in conjunction with Article 14.     THE LAW           The applicant has alleged that the Home Office operates a discriminatory parole policy against prisoners who are not United Kingdom citizens.   He claims to have been a victim of that policy, not having been granted parole, unlike other prisoners of United Kingdom citizenship at Maidstone Prison.   He also brings his case on behalf of other foreign prisoners who were in a similar position to himself.           According to the information submitted by the Government, a prisoner's nationality is of no relevance in the considerations of the parole authorities.           The Commission has examined the applicant's claim in so far as he may have been personally affected.   The Commission cannot examine his abstract complaint on behalf of prisoners who are also not United Kingdom citizens.           The Commission notes that the applicant was detained in accordance with a procedure prescribed by law after conviction by a competent court, pursuant to Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. According to that conviction the applicant could have been expected to serve his full five year sentence.   The Commission considers, nevertheless, that if a prison pre-release scheme were operated in a discriminatory manner, an issue could arise under Article 5 of the Convention, read in conjunction with Article 14 (Art. 5+14).   Article 14 (Art. 14) guarantees freedom from discrimination in the securement of Convention rights such as the right to liberty and security of person laid down in Article 5 (Art. 5).           The Commission finds, however, that the applicant's claim of discrimination against foreign prisoners in respect of parole is unsubstantiated.   The statistics that the applicant has provided as regards the prison where he was detained do not adequately reflect the personal circumstances of the prisoners concerned, which circumstances are essential in determining a grant of parole.   Moreover the Government's instructions to the parole authorities show clearly that a prisoner's nationality is not to be taken into consideration when reviewing his suitability for such release on licence.           In these circumstances the Commission concludes that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission             DECLARES THE APPLICATION INADMISSIBLE.     Secretary to the Commission            President of the Commission               (H.C. KRÜGER)                             (C.A. NØRGAARD)