CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 1992

.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. 18757/91                       by D.M.                       against the United Kingdom             The European Commission of Human Rights sitting in private on 14 October 1992, the following members being present:                MM.    J.A. FROWEIN, President of the First Chamber                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            Mr.    M.P. PELLONPÄÄ                  B. MARXER                    Mr. M. de SALVIA, Secretary to the First Chamber                  assisted by K. Reid.           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 December 1990 by D.M. against the United Kingdom and registered on 2 September 1991 under file No. 18757/91;         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 applicant is a citizen of the United Kingdom, born in 1953 and detained in H.M. Prison Albany, Newport, Isle of Wight.         The facts of the present case, as submitted by the parties, may be summarised as follows.         In 1988 the applicant was found guilty, at Sheffield Crown Court, of two counts of aggravated burglary, one of attempted rape and one of indecent assault. On 16 May 1988, he received three discretionary life sentences and also a 6 year sentence to run concurrently. The judge commented in sentencing that the applicant, who had a history of offences of violence against women, would probably be a danger to the opposite sex for a long time to come.         The applicant's application for an extension of time in which to appeal against conviction and sentence was dismissed on 17 February 1989 by the Court of Appeal, which commented that in any case the applicant had no ground for complaint.         The tariff period of the applicant's sentence was fixed after consultation with the judiciary at eight years.     RELEVANT DOMESTIC LAW AND PRACTICE         By virtue of section 37 of, and Schedule 2 to, the Sexual Offences Act 1956, the maximum punishment for rape is life imprisonment. Pursuant to section 10 of the Theft Act 1960, the maximum penalty for aggravated burglary is life imprisonment.         The principles underlying the passing of a discretionary sentence of life imprisonment are:         (i)   that the offence is grave and         (ii) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.     The procedure for review         The policy for the review and release of life sentence prisoners is the responsibility of the Home Secretary who is answerable to Parliament.         Since the introduction in 1983 of a new parole policy in respect of life sentences, the Home Secretary consults the Lord Chief Justice and the trial judge as to the period of detention necessary to satisfy the requirements of retribution and deterrence, i.e. the tariff period. As indicated in the Handscombe judgment (R. v. Secretary of State for the Home Department, ex parte Handscombe and others, (1988) 86 Cr. App. R. 59 at p. 74-75) :           "... the Lord Chief Justice and the trial judge are being asked       to provide ... a figure (the tariff) representing a term of years       during which a prisoner should be detained to serve only the twin       purposes of retribution and deterrence.   They are in other words       asked to say what would have been an appropriate tariff in the       circumstances of the case if a determinate and not a life       sentence could have been and had been passed when the prisoner       was sentenced, without considering risk.   The risk element is of       course present in the judicial mind when a discretionary life       sentence is passed.   The element of continuing risk, I should       add, is the concern of the prison authorities and doctors, the       local review committee, the Parole Board and finally the Home       Secretary.   Fourthly, the views of the judges as to tariff are       intended to have a decisive bearing in all cases upon the       decision as to when the first reference to the local review       committee will take place, i.e. three years before the end of the       tariff period.   Special circumstances may serve to bring forward       that time".           Under the Criminal Justice Act 1967 (the 1967 Act) the Secretary of State may only release on licence a person sentenced to life imprisonment if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice and the trial judge if he is available.     Recent legislation         Under Section 34 of the Criminal Justice Act 1991, which will come into force in October 1992, a discretionary life prisoner will be able to require that his case be referred to the Parole Board after he has served the "tariff" part of his sentence. The Board will have the power to direct the prisoner's release and the Secretary of State will then be under a duty to release the prisoner on licence.     COMPLAINTS         The applicant complains in effect that he has no possibility of a review of the lawfulness of his continued detention as required by Article 5 para. 4 of the Convention.         The applicant also complains of his conviction and sentence.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 December 1990 and registered on 2 September 1991.         On 2 April 1992, the Commission (First Chamber) requested the respondent Government to provide information concerning the application.         The Government submitted the information on 5 June 1992 and the applicant submitted a letter in reply on 29 June 1992.   THE LAW   1.     The applicant complains that he has no possibility of a review of the lawfulness of his continued detention contrary to the requirements of 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 Commission recalls that the case-law of the Commission and Court establishes that prisoners serving a discretionary life sentence are entitled under the above provision to take proceedings to have the lawfulness of their detention decided by a court where the punitive or "tariff" period of their sentence has expired (see Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114 and Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190).         The Commission recalls that in the present case the applicant is still serving the tariff part of his sentence which does not expire until 1996.   The Commission also notes that when the applicant becomes eligible for the review of his continued detention a different system, with new procedures, will be in force. In these circumstances, the Commission finds that the applicant cannot claim at the present time to be a victim of a violation of Article 5 para. 4 (Art. 5-4) of the Convention.          It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     2.     The applicant also complains of his conviction and sentence.         The Commission however is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".         In the present case the decision of the Court of Appeal which was the final decision regarding the subject of this particular complaint, was given on 17 February 1989, whereas the application was submitted to the Commission on 4 December 1990, that is, more than six months after the date of this decision.   Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period.         It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber          President of the First Chamber       (M. de Salvia)                         (J.A. FROWEIN)