CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 juin 1994

.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. 21928/93                       by Abed HUSSAIN                       against the United Kingdom         The European Commission of Human Rights sitting in private on 30 June 1994, the following members being present:         MM.   C.A. NØRGAARD, President            S. TRECHSEL            A. WEITZEL            E. BUSUTTIL            G. JÖRUNDSSON            J.-C. SOYER            H.G. SCHERMERS            H. DANELIUS       Mrs. G.H. THUNE       Mr.   F. MARTINEZ       Mrs. J. LIDDY       MM.   J.C. GEUS            B. MARXER            G.B. REFFI            M.A. NOWICKI            I. CABRAL BARRETO            N. BRATZA            J. MUCHA         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 31 March 1993 by Abed Hussain against the United Kingdom and registered on 27 May 1993 under file No. 21928/93;         Having regard to:   -      reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       6 October 1993 and the observations in reply submitted by the       applicant on 1 December 1993;   -      the further observations submitted by the applicant on       15 June 1994;   -      the observations submitted by the parties at the oral hearing on       30 June 1994;         Having deliberated;         Decides as follows:   THE FACTS   a.     The particular circumstances of the case         The applicant is a Pakistani citizen born in 1962.   He is currently imprisoned at Her Majesty's Prison Doncaster in South Yorkshire.   He is represented before the Commission by Ms. Kate Akester, a solicitor working for Justice in London and Mr. Edward FitzGerald, counsel practising in London.         The facts as submitted by the parties may be summarised as follows.         In December 1978 the applicant, then aged 16, was found guilty of the murder of his younger brother aged two. He received a mandatory sentence of detention "at Her Majesty's pleasure" pursuant to section 53(1) of the Children and Young Persons Act 1933 (as amended).         The applicant appealed against both his conviction and sentence. The Court of Appeal dismissed his appeal on 5 March 1980.         Under the administrative procedures governing such sentences as that received by the applicant, a tariff period is set to fix the number of years' detention required to satisfy the requirements of retribution and deterrence.   The applicant's tariff period was set at fifteen years. The Parole Board has twice considered whether or not to recommend his release but on both occasions decided against such a course.   These decisions were communicated to the applicant in, respectively, February 1987 and February 1991.   b.     The relevant domestic law and practice         Detention at Her Majesty's pleasure         Section 53(1) of the Children and Young Persons Act 1933 (as amended) provides:         "A person convicted of an offence who appears to the Court to       have been under the age of eighteen years at the time the offence       was committed shall not, if he is convicted of murder, be       sentenced to imprisonment for life nor shall sentence of death       be pronounced on or recorded against any such person but in lieu       thereof the court shall ... sentence him to be detained during       Her Majesty's pleasure and, if so sentenced he shall be liable       to be detained in such a place and under such conditions as the       Secretary of State may direct."         Categorisation of detention "at Her Majesty's pleasure"         In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in the Divisional Court held as follows in respect of detention "at Her Majesty's pleasure":         "At the time of sentencing, the detention orders under section       53 were mandatory.   It is indeed the statutory equivalent for       young persons of the mandatory life sentence for murder.   But the       sentence itself is closer in substance to the discretionary       sentence of which part is punitive (retribution and deterrence)       and the balance justified only by the interests of public safety       when the test of dangerousness is satisfied.   The fact that the       mandatory life prisoner may be given similar rights as regards       release on licence does not alter the fact that the mandatory       life sentence is justifiable as punishment for the whole of its       period: see R. v. Secretary of State, ex.p. Doody & others [1993]       Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).   The order       for detention under section 53 is by its terms both discretionary       and indeterminate: it provides for detention 'during Her       Majesty's pleasure'. (Section 53(4) which expressly authorised       the Secretary of State to discharge the detainee on licence 'at       any time' was repealed by the Parole Board provisions of the       Criminal Justice Act 1967, but this does not, in my judgment,       alter the nature of the sentence in any material respect.)   I       would decide the present case on the narrow ground that,       notwithstanding Home Office and Parole Board practice, the       applicant should be regarded as equivalent to a discretionary       life prisoner for the purpose of deciding whether Wilson rather       than Payne governs his case."   COMPLAINTS         Article 5 para. 4         The applicant contends that the procedures governing review of his continued detention fail to comply with the requirements of Article 5 para. 4 of the Convention.   In particular he complains that:         (i)   he has no right to periodic review of his case to determine       the justification for continuing detention;         (ii) the ultimate decision rests with the executive and not a       judicial body independent of the executive;         (iii) he has no right to an oral hearing or to question the       witnesses against him in person and call his own witnesses;         (iv) he has no acknowledged right to see the reports placed       before the Parole Board and the Home Secretary.         The applicant submits that   the sentence under which he is held should attract the safeguards of Article 5 para. 4 since there is no distinction in domestic law between a mandatory life sentence and a discretionary one and, secondly, even if there is, a sentence of detention "at Her Majesty's pleasure" should be equated with a discretionary sentence.         Article 14         The applicant also complains of a violation of Article 14 in that he is irrationally discriminated against on the basis of his status as a person convicted of murder, because the review procedures governing continued detention of individuals sentenced to discretionary life sentences are not subject to the same restrictions as those governing the applicant's detention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 31 March 1993 and registered on 27 May 1993.         On 6 July 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the complaints under Article 5 para. 4 of the Convention.         The Government's observations were submitted on 6 October 1993 and the applicant's observations in reply were   submitted on 1 December 1993.         On 21 January 1994, the Commission decided to grant legal aid to the applicant.         On 5 April 1994, the Commission decided to invite the parties to an oral hearing to be held consecutively with the hearing in the case of Prem Singh v. the United Kingdom, Application No. 23389/94.         At the hearing, which took place on 30 June 1994, the parties were represented as follows:   For the Government   Mr. Iain Christie            Agent Mr. David Pannick Q.C        Counsel Mr. Harry Carter             Adviser Ms Helen Bayne               Adviser Ms Joy Hutcheon              Adviser   For the applicant   Mr. Edward FitzGerald        Counsel Mr. Jonathan Cooper          Counsel Ms Kate Akester              Solicitor Mr. Rodney King              Adviser   THE LAW         The applicant, who is serving a sentence of detention at Her Majesty's pleasure, complains of the absence of any procedure under domestic law by which he can have reviewed by a court the lawfulness of his continued detention. He also complains of discrimination in the procedures which are applied to persons convicted of murder. He invokes Articles 5 para. 4 and 14 (Art. 5-4, 14) of the Convention.         Article 5 para. 4 (Art. 5-4) 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."         Article 14 (Art. 14) provides:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any ground       such as sex, race, colour, language, religion, political or other       opinion, national or social origin, association with a national       minority, property, birth or other status."         The respondent Government submit that detention at Her Majesty's pleasure is to be equated with the term of mandatory life imprisonment for adults and is in effect the equivalent sentence imposed on juveniles. It is therefore to be regarded as a sentence fixed by law in respect of the gravity of the offence concerned. They submit that mandatory and discretionary life sentences differ in fundamental respects, both in nature and applicable procedures. Pursuant to the judgments of the Court, Article 5 para. 4 (Art. 5-4) does not grant an entitlement   to a prisoner serving a mandatory life sentence to periodic judicial assessment of the grounds for his detention after the expiry of his tariff (cf. 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-A). The requirements of Article 5 para. 4 are accordingly satisfied by the original trial and appeal proceedings of the applicant.         The applicant submits that detention at Her Majesty's pleasure is a wholly indeterminate sentence based on the special factor of youth. It should be assimilated to discretionary life sentences for adults in respect of which the European Court of Human Rights has held that Article 5 para. 4 of the Convention requires judicial rather than executive control after the expiry of the punitive or "tariff" part of their sentence. Since the only justification for his detention is risk or "dangerousness", which is a factor susceptible to change, the applicant submits that he should have a review of the lawfulness of his continued detention by a body satisfying the guarantees of Article 5 para. 4 (Art. 5-4) of the Convention.         The applicant submits that the procedure for release on licence of detainees at Her Majesty's Pleasure does not satisfy the requirements of Article 5 para. 4 (Art. 5-4) since the Parole Board, save immediately after recall, is unable to order release, the ultimate decision resting with the executive. An applicant also has no right to an oral hearing before the Board or to call his own witnesses or to question the witnesses against him.         The Commission has taken cognizance of the submissions of the parties concerning the complaints raised by the applicant. It considers that the complaints raise serious issues of fact and law the determination of which should depend on an examination on the merits. The application cannot therefore be regarded as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other ground for declaring it inadmissible has been established.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION ADMISSIBLE, without prejudging the       merits of the case.   Secretary to the Commission             President of the Commission         (H.C. KRUGER)                          (C.A. NØRGAARD)