CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1991

.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. 13195/87                       by M. P., V. K.                       and C. G.                       against the United Kingdom             The European Commission of Human Rights (First Chamber) sitting in private on 14 October 1991, the following members being present:                 MM. J.A. FROWEIN, President of the First Chamber                   F. ERMACORA                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK                   J.-C. SOYER                   H. DANELIUS              Sir   Basil HALL              MM.   C.L. ROZAKIS                   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 23 July 1987 by M.P., V.K. and C.G. against the United Kingdom and registered on 3 September 1987 under file No. 13195/87;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The first applicant is a citizen of the United Kingdom, born in 1960.   He is, at present, serving a life sentence of imprisonment in H. M. Prison, L.           The second applicant is a citizen of the United Kingdom, born in 1945.   He is, at present, serving a life sentence in H. M. Prison, D.           The third applicant is also a citizen of the United Kingdom, born in 1955.   He is, at present, detained at H.M. Prison, B.           The applicants are represented before the Commission by Mr.   P. Ashman, legal officer of Justice (British Section of the International Commission of Jurists), London.           The facts, as agreed by the parties, may be summarised as follows:   The first applicant           On 30 June 1978 the first applicant pleaded guilty at the Northampton Crown Court to three offences of possession of a firearm with intent to endanger life, three offences of possession of a firearm with intent to resist arrest and one offence of burglary.   He was sentenced to life imprisonment for the first six offences and three years' imprisonment for the burglary.           On 10 July 1979 the Court of Appeal (Criminal Division) dismissed the first applicant's appeal and upheld the sentence of the applicant's imprisonment.   Lord Justice Lane, giving the judgment of the Court, stated as follows:   "This man suffers from a psychopathic disorder.   He is highly dangerous.   He has an explosive temper which is likely to flare up at any minute, with consequences which can be disastrous.   There is no need to say more than that. The prognosis is uncertain, ...   If, therefore, a determinate sentence is to be imposed what length should it be?   No-one can answer that.   If it is too long it is not fair to the appellant.   If it is too short it may very well mean that some innocent member of the public will lose his life as a result.   On the one hand we have the appalling prospect for a young man of 19, as he now is, of an indeterminate sentence of imprisonment stretching into the future.   On the other hand there is the difficulty, if not the impossibility, of forming a prognosis in relation to his mental condition.   There is the fact that this man is undoubtedly highly dangerous ..."           On 29 June 1990 the Secretary of State authorised the applicant's release on licence, subject, inter alia, to the conditions that he could only reside or work where approved by his probation officer.   The first applicant was released on 6 July 1990. The licence may be varied or revoked by the Secretary of State at any time.     The second applicant           On 15 November 1976 the second applicant pleaded guilty at the Plymouth Crown Court to one offence of burglary and one offence of arson. The Court had wanted to find a place for him in a hospital but none was available, and on 3 December 1976 it passed sentences of three years' imprisonment for the burglary and life imprisonment for the arson.   The first applicant appealed, arguing that his sentence was based on his past crimes and his history of sub-normality in relation to sexual fantasies with eight-year-old girls.           On 18 November 1977 the Court of Appeal (Criminal Division) dismissed the applicant's appeals against the sentences.   Lord Justice Bridge, giving the judgment of the Court, stated as follows:   "Passing sentence the [first instance] court said: 'It may be right that it is correct for us to sympathise with you rather than condemn you, but we have got a duty to protect the public and it is quite clear that this is a case where the public have to be protected from you at least for the time being.   We cannot see into the future, and the only way we can deal with this matter is by way of what is called an indeterminate sentence,...'.   When one analyses it, [the argument of counsel for the applicant] really comes to this,...   Before the court can impose a protective sentence, in the sense of a sentence which is appropriate to protect the public against this man, it must wait until an offence of the worst kind, which the doctors apprehend will be committed against a young girl, is committed.   In our judgment the court would be totally abdicating its responsibility, looking at this matter realistically, if it did that.   It is clear to us that the indeterminate sentence the court imposed was the only sentence which could properly be imposed and the appeal against it is accordingly dismissed."           The second applicant has been reviewed for parole three times unsuccessfully.   The Parole board did not give any reasons for its refusals.   The case was to be reviewed again in July 1991.   The third applicant           On 14 June 1984 the third applicant pleaded guilty, at the Manchester Crown Court, to offences of rape, robbery and attempted rape.   In committing these offences, he was in breach of a suspended sentence for assault.   He was sentenced to life imprisonment for the offences of rape and attempted rape, five years' imprisonment for the robbery and twelve months' imprisonment for the breach of the suspended sentence.   Before sentencing the judge ordered medical reports on the third applicant which showed that the he had no mental disorder, so prison was the only alternative.   After sentencing, the following exchange between the applicant and the trial judge took place:   Mr.   Justice Griffiths: "You are a serious danger to the public, and that there is every likelihood that if you were free to do so you would commit similar offences.   You are clearly at present a danger to the public."   The prisoner: "No, I am not."   Mr.   Justice Griffiths: "Until such time as the passing of years alters your character it is clear that you will continue to be so.   In these circumstances my duty is to protect the public from you - and, in particular, women.   I do this by passing upon you in respect of the two counts of rape and the one count of attempted rape a concurrent sentence of life imprisonment."   The prisoner: "That's fair enough with me."   Mr.   Justice Griffiths: "This will permit those in authority to review your condition and to consider whether at some time in the future it will be safe to set you at large again."             On 12 December 1974, the third applicant's appeal against his life sentence was dismissed.   The Court of Appeal did, however, change the sentence of life imprisonment for the attempted rape to seven years, that being the maximum possible for attempted rape.           The third applicant has not been released on life licence, but he is now a category B prisoner.   His case was reviewed in March and October 1987, August 1988 and December 1989 by the Local Review Committee.       COMPLAINTS AND SUBMISSIONS           The applicants allege that it is apparent from the judgment in each case that punishment was not the reason for the life sentence imposed.   The major consideration was the personality disorder from which the respective applicants suffered.   Hospital places were not available, or not appropriate, and indeterminate sentences enabled the authorities to keep the cases under review so that the applicants could be released when it was safe to do so.   The applicants submit that their cases fall within the principles laid down by the European Court of Human Rights in the Weeks case (Eur.   Court H.R., Weeks judgment of 2 March 1987, Series A no. 114), in that they, too, fall within the same "special category" of detention as Weeks.   They allege violations of Article 5 para. 4 of the Convention.       PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 23 July 1987 and registered on 3 September 1987.           On 13 October 1989, the Commission decided to bring the application to the notice of the respondent Government but not to invite any observations pending the outcome of the Thynne, Gunnell and Wilson cases before the Court (Eur.   Court H.R. Thynne, Gunnell and Wilson judgment of 25 October 1990 Series A no. 190).           On 2 March 1991, the Commission decided to invite the respondent Government to submit observations on the admissibility and merits.           The Government's response was submitted on 15 May 1991 and observations from the applicants were submitted on 20 June 1991.           On 1 July 1991, the Commission referred the application to the First Chamber.   THE LAW           The applicants, who are serving discretionary life sentences, complain of the absence of any procedure under domestic law by which they can have reviewed by a court the continued lawfulness of their detention.   They invoke Article 5 para. 4 (Art. 5-4) of the Convention, which provides :           "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 Government have made no objection to admissibility.           The Commission recalls that in the Thynne, Gunnell and Wilson cases (Eur.   Court H.R., Thynne, Gunnell and Wilson judgment of 25 October 1990, Series A no. 190) the Court held that the applicants who were serving discretionary life sentences were entitled under Article 5 para. 4 (Art. 5-4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court.   The Court found that neither judicial review nor the Parole Board satisfied these requirements.           Consequently, the Commission considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on the merits.   It must therefore be declared admissible, no other ground for declaring it inadmissible having been established.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits.       Secretary to the First Chamber           President of the First Chamber                 (M. de SALVIA)                           (J.A. FROWEIN)