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. 15767/89                       by Arnold Ernest CLARKE                       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 9 October 1989 by Arnold Ernest Clarke against the United Kingdom and registered on 15 November 1989 under file No. 15767/89;           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 facts as submitted by the parties may be summarised as follows:           The applicant is a citizen of the United Kingdom, born in 1955.   He is a salesman by profession.   He is at present detained in HM Prison Long Lartin, England.           The applicant was sentenced to life imprisonment in January 1984 in Preston Crown Court on one charge of rape.   Psychiatric evidence was adduced by the prosecution during his trial that he suffered from a personality disorder.   He was thus given a discretionary life sentence by the court, as opposed to a fixed term sentence, on the basis that he was a danger to the public.   An appeal against sentence was rejected by the Court of Appeal (Criminal Division) in 1985.           The applicant states that the tariff part of his sentence was completed in 1988 and that his case was reviewed by the Parole Board in September 1988.   The Parole Board was unable to recommend his release on this occasion.   His case will be reviewed again in December 1991.     COMPLAINTS           The applicant complains under Article 5 para. 4 of the Convention that he is unable to have the lawfulness of his continued detention reviewed by an independent tribunal.   He states that he is being kept in prison because he is considered to be a risk to the public.   He states that he has not been examined by a doctor since his court appearance in 1984 and that there has been no attempt at rehabilitation whilst in prison.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 9 October 1989 and registered on 15 November 1989.           On 13 March 1990 the Commission decided to bring the application to the attention of the respondent Govenment but not to invite them to submit any observations pending the outcome of the Thynne, Gunnell and Wilson case (Eur.   Court H.R. Thynne, Gunnell and Wilson judgment of 25 October 1990, Series A no. 190) before the Court.           On 2 March 1991 the Commission invited the Government to submit observations on the admissibility and merits of the application.   The Government's response was submitted on 13 May 1991 and the applicant's observations were submitted on 6 June 1991.           On 1 July 1991, the Commission referred the application to the First Chamber.   THE LAW           The applicant, who is serving a discretionary life sentence, complains of the absence of any procedure under domestic law by which he can have reviewed by a court the continued lawfulness of his detention.   He invokes 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 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 of the case.         Secretary to the First Chamber           President of the First Chamber                 (M. de SALVIA)                           (J.A. FROWEIN)