CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 décembre 1988

.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. 13183/87                       by Norman BAMBER                       against the United Kingdom             The European Commission of Human Rights sitting in private on 14 December 1988, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.C. SOYER                   H.G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE              Mrs.   G.H. THUNE              Sir   Basil HALL              MM.   F. MARTINEZ                   C.L. ROZAKIS              Mrs.   J. LIDDY                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 18 February 1988 by Norman BAMBER against the United Kingdom and registered on 7 September under file No. 13183/87;           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, Norman Bamber, is a citizen of the United Kingdom currently residing in Bristol, born in Lancashire in 1935 and a toolmaker by profession.   The facts of the case as submitted by him may be summarised as follows:           On 7 July 1965, the applicant was convicted after a trial in Bristol of murdering his girlfriend's husband with an axe while the latter was at home in bed.   He was given a mandatory sentence of life imprisonment.           On 21 April 1977, he was released on parole licence.   That licence was revoked for a period of three months in 1978 because he failed to report to his probation officer, and again for nine months between August 1979 and April 1980 because he was alleged to have failed to co-operate with the Probation Service.   It was again revoked in November 1980 whilst the applicant was awaiting trial for offences of theft and burglary, for which he was subsequently convicted on 10 April 1981 and sentenced to eighteen months' immediate imprisonment. In the event, the Parole Board recommended against revocation of his licence and he was released, after serving the fixed term, in April 1982.           On 21 September 1984, the applicant was convicted by the Bristol Crown Court of further offences relating to the fraudulent use of credit cards; on this occasion he was sentenced to three years immediate imprisonment.   By virtue of Section 62 (7) of the Criminal Justice Act 1967, the Judge at the Crown Court had the power to revoke the applicant's licence, whether or not he passed any other sentence upon him.   During the course of his observations upon sentence, however, the Judge specifically stated that he did not consider it proper to do so, bearing in mind particularly that the offences for which he was then convicted were of a qualitatively different nature to that for which the life sentence had been imposed.           Notwithstanding this, the applicant's licence was revoked by the Home Secretary in May 1985.   Under section 62 (1) of the 1967 Act, the Home Secretary may revoke the licence if recommended to do so by the Parole Board.   He also has the power to revoke the licence without consulting the Board "where it appears to him that it is expedient in the public interest to recall that person before such consultation is practicable" (Section 62 (2)), though his decision may be overruled by the Parole Board (Section 62 (5)).           In November 1985 the applicant was notified that his date of release had been set at 20 March 1987, though this was subsequently cancelled by the Home Office for reasons which the applicant alleges to be inconsistent and arbitrary.   Following a petition to the Home Secretary, the applicant was advised on 1 May 1987 that his provisional release date was now 21 September 1987, that is exactly one year later than the date on which he would ordinarily have been released from the fixed term of imprisonment of three years imposed by the Crown Court on 21 September 1984 (one third of a sentence may be remitted for industry and good conduct).   The applicant had no possibility of challenging this decision.   COMPLAINTS           The applicant complains that his continued detention, following the decision of the Home Secretary in May 1985 to revoke his parole licence, constituted a breach of Article 5 para. 1 (a) of the Convention.   He argues, notwithstanding the fact that his sentence of life imprisonment was fixed by law after conviction by a competent court, that after a passage of time where he remained free of offences and of activities which could be classed as similar in nature to his original offence, the Home Secretary lost the right to revoke his licence save in circumstances where he had grounds for believing that the applicant's continued liberty would constitute a danger to the public or to the applicant himself.   Furthermore, where a court of competent jurisdiction had had the opportunity of dealing with the question under 62 (7) of the 1967 Act, and of hearing the applicant's arguments against revocation, the Home Secretary should not have exercised his powers in a manner inconsistent with those of the court in the absence of other circumstances not then known to the court.           The applicant also alleges a breach of Article 5 para. 4 of the Convention, in that he had no opportunity to take proceedings by which the lawfulness of the revocation, and therefore of his re-detention, could be determined speedily by a court.   Nor did any court have the power to release him from detention.   In this respect, the applicant relies upon the judgment of the Court in the Weeks case (Eur.   Court H.R., Weeks judgment of 2 March 1987, Series A, No. 114).           The applicant further complains under Article 5 para. 4 that he was not entitled to present his case for release or to challenge the decision of the Home Office to cancel his original release date of 20 March 1987.     THE LAW   1.       The applicant has complained that his continued detention as a result of the Home Secretary's decision in May 1985 to revoke his parole licence constituted a violation of his rights under Article 5 par. 1 (a) (Art. 5-1-a) of the Convention, which provides 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;   ..."           The applicant points out that the Home Secretary revoked his licence in May 1985 after a court of competent jurisdiction had considered it inappropriate to do so on the grounds that the offences for which he was then convicted were of a qualitatively different nature to that for which the life sentence had been imposed.   He submits that in these circumstances and after a passage of time where he remained free of offences and of activities which could be classed as similar in nature to his original offence, the Home Secretary lost the power to revoke his licence save in circumstances where he had grounds for believing that the applicant's release would constitute a danger to the public or to the applicant himself.           The Commission first recalls that there is no incompatibility with the Convention in the imposition of a life sentence in a particular case or in a decision to keep a recidivist or habitual offender at the disposal of the Government (e.g.   No. 7994/77, Kotälla v. the Netherlands, Dec. 6.5.78, D.R. 14 p. 238).   Nor does the Convention confer, in general, a right to release on licence or require that parole decisions be taken by or subject to review by a court, and it is clear in this respect that the executive must enjoy a certain discretion in implementing or executing decisions of the courts entrusted to its supervision (see Weeks v. the United Kingdom, Comm.   Report 7.12.84, para. 73, Eur.   Court H.R., Series A No. 114 p. 43).           It is established in this connection that the justification for a person's continued detention or redetention on the basis of a life sentence previously imposed on him is normally considered to have been provided by the original conviction and appeal procedures, and that such detention therefore constitutes a "lawful detention ... after conviction by a competent court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention (e.g., No. 9089/80, Dec. 9.12.80, D.R. 24 p. 227).           It is true that there are certain exceptional cases in which the clearly stated purpose for which a life sentence is imposed, taken together with the particular facts pertaining to the offence for which a person is convicted, places the sentence in a "special category" which may subsequently give rise to an issue under Article 5 para. 1 (a) (Art. 5-1-a) of the Convention when a person is redetained in reliance upon it (see Weeks judgment, loc. cit., para. 46, p. 24).           However in the Weeks case the Court stressed in particular, that the applicant was given a discretionary life sentence not because of the inherent gravity of the offence he had committed but because he was considered to be a danger to the public.   For this reason the Court found that his case was assimilable to that of the habitual offender who is kept at the disposal of the executive (loc. cit., para. 47).           The Commission finds that the present case, on the other hand, cannot be said to fall within this category of cases, because the applicant was sentenced to mandatory life imprisonment in 1965 on account of the inherent gravity of his offence, namely murder.           In consequence, the Commission finds that the applicant's continued detention as a result of the decision to revoke his parole licence was a "lawful detention ... after conviction by a competent court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.           It follows that this aspect of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained that he had no opportunity to take proceedings by which the lawfulness of the revocation of his licence, and therefore of his continued detention, could be determined by a court, and further, that he could not challenge the decision of the Home Secretary in respect of the original date of his release on parole.   He invokes Article 5 para. 4 (Art. 5-4) of the Convention, which provides as follows:     "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 has found above that the applicant's continued detention was justified under Article 5 para. 1 (a) (Art. 5-1-a) as "the lawful detention of a person following conviction by a competent court".   It is established in this respect that the necessary supervision of the lawfulness of such detention under Article 5 para. 4 (Art. 5-4) is incorporated at the outset in the applicant's original trial and possible appeal against conviction and sentence (Eur.   Court H.R., De Wilde, Ooms and Versyp case, judgment of 18 June 1971, Series A No. 12 para. 76, p.40).           Furthermore, the applicant in the present case cannot derive from Article 5 para. 4 (Art. 5-4) of the Convention a right to release on parole or to judicial review of parole decisions (see No. 9089/80, loc. cit.)           It follows that this aspect of the application is also 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)