CEDH · CASELAW;REPORTS;ENG — 11 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 21928/93                                Abed HUSSAIN                                   against                             the United Kingdom                           REPORT OF THE COMMISSION                        (adopted on 11 October 1994)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION       (paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1         A.   The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1         B.   The proceedings           (paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1         C.   The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2   II.    ESTABLISHMENT OF THE FACTS       (paras. 19-44). . . . . . . . . . . . . . . . . . . . . . . . 3         A.   Particular circumstances of the case           (paras. 19-28). . . . . . . . . . . . . . . . . . . . . . 3         B.   Relevant domestic law and practice           (paras. 29-44). . . . . . . . . . . . . . . . . . . . . . 4   III.   OPINION OF THE COMMISSION       (paras. 45-67). . . . . . . . . . . . . . . . . . . . . . . . 8         A.   Complaints declared admissible           (para. 45). . . . . . . . . . . . . . . . . . . . . . . . 8         B.   Points at issue           (para. 46). . . . . . . . . . . . . . . . . . . . . . . . 8         C.   Article 5 para. 4 of the Convention           (paras. 47-61). . . . . . . . . . . . . . . . . . . . . . 8              1. Applicability of Article 5 para. 4 to release on            licence (paras. 48-54) . . . . . . . . . . . . . . . . . 8              2. Compliance with the requirements of Article 5            para. 4 (paras. 55-60) . . . . . . . . . . . . . . . . .10              CONCLUSION            (para. 61) . . . . . . . . . . . . . . . . . . . . . . .11         D.    Article 14 of the Convention            (paras. 62-65) . . . . . . . . . . . . . . . . . . . . .11              CONCLUSION            (para. 65) . . . . . . . . . . . . . . . . . . . . . . .11         E.    Recapitulation            (paras. 66-67) . . . . . . . . . . . . . . . . . . . . .12   APPENDIX I:       HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .14   APPENDIX II:      DECISION OF THE COMMISSION AS TO THE                  ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 15   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is Abed Hussain, a Pakistani citizen born in 1962 and currently serving a sentence of imprisonment in HM Prison Doncaster. He is represented by Ms. Kate Akester, a solicitor working for Justice in London and Mr. Edward FitzGerald, counsel practising in London.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by Mr. Iain Christie, Foreign and Commonwealth Office, as Agent.   4.     The case concerns the complaints of the applicant that he is unable to obtain a review by a court of the lawfulness of his continued detention at Her Majesty's pleasure and that he has been discriminated against on the basis of his status as a person convicted of murder. The application raises issues under Article 5 para. 4 and Article 14 of the Convention.   B.     The proceedings   5.     The application was introduced on 31 March 1993 and registered on 27 May 1993.   6.     On 6 July 1993, the Commission decided to communicate the application to the respondent Government for their written observations on the admissibility and merits of the applicant's complaints under Article 5 para. 4 of the Convention.   7.     The Government submitted their written observations on 6 October 1993.   The applicant submitted his written observations in reply on 1 December 1993.   8.     On 5 April 1994, the Commission decided to invite the parties to an oral hearing on the admissibility and merits to be held consecutively with that in the case of Prem Singh v. the United Kingdom, No. 23389/94.   9.     At the hearing which was held on 30 June 1994, the Government were represented by   Mr. Iain Christie, as Agent, Mr. David Pannick Q.C., Counsel, and Mr. Harry Carter, Ms Helen Bayne and Ms Joy Hutcheon as Advisers. The applicant was represented by Mr. Edward FitzGerald, Counsel, Mr. Jonathan Cooper, Counsel, and Ms Kate Akester, Solicitor.   10.    On 30 June 1994, the Commission declared the application admissible.   11.    The parties were then invited to submit any additional observations on the merits of the application.   12.    On 26 July 1994, the Government submitted further observations.   13.    After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   14.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  N. BRATZA                  J. MUCHA   15.    The text of the Report was adopted by the Commission on 11 October 1994 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   16.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   17.    A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application as Appendix II.   18.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   19.    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) (see Relevant domestic law and practice below).   20.    The applicant appealed against both his conviction and sentence. The Court of Appeal dismissed his appeal on 5 March 1980.   21.    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 by the Secretary of State after consulting the trial judge and the Lord Chief Justice. In his letter to the Secretary of State, the trial judge stated, inter alia,:         "Over the two or three days immediately preceding the       baby's death, <the applicant> had undoubtedly treated him       with very considerable violence by slapping, kicking and       shaking. The baby was covered with over 60 bruises and his       brain and spine were injured. Since <the applicant> denied       ever having laid hands on him, it was not possible to       discover why he had acted with such violence.         <The applicant> is unquestionably an unscrupulous young       liar, but the most unusual feature of him was his       passivity. He demonstrated no feeling whatsoever for his       brother's injury and death. This gave me the impression       that he is very probably a very dangerous young man who is       quite unmoved by brutality. I am anxious that this aspect       of his character should be borne fully in mind whenever the       question of release arises. He still has three young       siblings and their safety must be a predominant       consideration. I am deeply concerned at the appearance of       normality this young man gives; it is probably very       misleading.         I cannot recommend any period for his detention. It will       have to continue until one can say with reasonable       certainty that maturation has rendered him safe. The       difficulty is that he is already `Old for his years', as       one police officer described him. Maturation here involves       much more than simply a young boy growing up. I can do no       more than sound this sombre note of warning."   22.    The Parole Board has considered whether or not to recommend the applicant's release on four occasions.   23.    The first Parole Board review took place in December 1986. The reports of progress were positive and, as later disclosed to him:         "the local review committee, who felt the risk was       acceptable, considered <the applicant> suitable to be given       a provisional release date".   The Parole Board did not however recommend the applicant's release but did recommend that he be transferred to a less restrictive Category C prison with a further review to commence in August 1990. At the time, the applicant did not see any of the reports before the Board and had no opportunity to appear before it.   24.    The applicant's second Parole Board review took place in 1990. A   Home Office summary of the review, disclosed later to the applicant, stated:         "The local review committee recommended that <the       applicant> should be given a provisional release date...         The Board did not recommend <the applicant's release>, but       recommended his transfer to open conditions with a further       review to commence eighteen months thereafter. However the       Secretary of State rejected the Board's recommendation and       directed that he should move to another category C prison       with a further review to commence in October 1992."   At the time, the applicant did not see any of the reports before the Board and had no opportunity to appear before it. He was given no reasons for the decisions taken.   25.    In the third review in December 1992, the Parole Board recommended that the applicant be transferred to open conditions with a further review in six months time. However the Secretary of State rejected this recommendation, directing that the applicant should remain in close conditions with a further review to commence in March 1995. The applicant was only informed in March 1993   that his release had not been recommended and about the date of his next review.   26.    In June 1993, the applicant applied for judicial review in respect of the decision communicated in March 1993 on the basis that he had not been shown the reports on him placed before the Board. He relied on the case of Prem Singh (see Relevant domestic law and practice paras.**) which had indicated that persons detained at Her Majesty's pleasure had a right to disclosure of reports.   27.    On 13 October 1993, the Parole Board gave the High Court an undertaking to reconsider the applicant's case immediately and to disclose their dossier to him so that he could make informed comments. The applicant withdrew his application for judicial review.   28.    Following the fourth review of his case, in January 1994, the Secretary of State accepted the Parole Board's recommendation to transfer the applicant to open prison conditions, which transfer took place in February 1994. The Parole Board will again consider the applicant's case in February 1996.     B.     Relevant domestic law and practice         1. Detention at Her Majesty's pleasure   29.    The notion of detention at Her Majesty's pleasure had its origins in an Act of 1800 for "the safe custody of insane persons charged with offences".   Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty's pleasure" and described their custody as being "during His Majesty's pleasure".   30.    In 1908, detention at His Majesty's pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which 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."         2. Categorisation of detention at Her Majesty's pleasure   31.    Mandatory life sentences are imposed in respect of the offence of murder committed by adults (Murder(Abolition of Death Penalty) Act 1967). Persons convicted of certain violent or sexual offences eg. manslaughter, rape, robbery may be sentenced to life imprisonment at the discretion of the trial judge. The principles underlying the passing of a discretionary life sentence 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.   32.    The sentence of "custody for life" is imposed where the offence of murder is committed by an individual between the ages of 18 and 21 (section 8 (1)Criminal Justice Act 1982).   33.    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."   34.    The Court accordingly held that the applicant in the case, detained at Her Majesty's pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence.         3. Release on licence and revocation of licences   35.    Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained at Her Majesty's pleasure have a "tariff" set in relation to that period of imprisonment they should serve to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in recent years, in particular, following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991 Act).         i. Prior to   1 October 1992   36.    Section 61 (1) of the Criminal Justice Act 1967 provided inter alia:         "The Secretary of State may if recommended to do so by the Parole       Board, release on licence a person serving a sentence of       imprisonment for life or a person detained under section 53 of       the Children and Young Persons Act 1933 (young offenders       convicted of grave crimes), but shall not do so in the case of       a person sentenced to imprisonment for life or to detention       during Her Majesty's pleasure or for life except after       consultation with the Lord Chief Justice of England together with       the trial judge if available."   37.    A statement of policy issued by the Secretary of State on 13 November 1983 indicated that detention following expiry of the "tariff" depended on whether the person was considered no longer to pose a risk to the public.   38.    In a parliamentary written answer to the House of Commons on 23 July 1987, the Secretary of State stated that in respect of discretionary life prisoners the tariff would be fixed in accordance with the judicial view which would be sought as soon as practicable after sentence. In respect of mandatory life prisoners, he stated that he would take into account the judicial view as to "tariff" as one factor amongst others, including the need to maintain public confidence in the system of justice.         ii. From 1 October 1992   39.    On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force.   40.    The 1991 Act instituted changes to the regime applying to the release of discretionary life prisoners following the decision of the Court in the Thynne, Wilson and Gunnell case (Eur. Court H.R., judgment of 25 October 1990, Series A no. 190-A).   41.    Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After the tariff has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order his release if it is satisfied that it is no longer necessary for the protection of the public that he be detained. Pursuant to the Parole Board Rules 1992 which came into force on 1 October 1992, a prisoner is entitled to an oral hearing, to disclosure of all evidence before the panel and to be legally represented. There is provision enabling a prisoner to apply to call witnesses on his behalf and to cross-examine those who have written reports about him.   42.    For the purposes of the 1991 Act, persons detained at Her Majesty's pleasure or serving mandatory sentences of life imprisonment or custody for life are not regarded as discretionary life prisoners. In relation to these prisoners, the Secretary of State continues to decide the length of the tariff. The view of the trial judge is made known to the prisoner after his trial as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 AER 92).   43.     As regards release on licence, these categories of prisoners are subject to section 35 of the 1991 Act, which provides as relevant:         "(2) If recommended to do so by the Board, the Secretary of State       may, after consultation with the Lord Chief Justice together with       the trial judge if available, release on licence a life prisoner       who is not a discretionary life prisoner."   44.    On 27 July 1993, the Secretary of State made a statement of policy in relation to mandatory life prisoners, stating, inter alia, that before any such prisoner is released on licence he         "will consider not only, (a) whether the period served by       the prisoner is adequate to satisfy the requirements of       retribution and deterrence and (b) whether it is safe to       release the prisoner, but also (c) the public acceptability       of early release. This means I will only exercise my       discretion to release if I am satisfied that to do so will       not threaten the maintenance of public confidence in the       system of criminal justice."     III.   OPINION OF THE COMMISSION   A.     Complaints declared admissible   45.    The Commission has declared admissible the applicant's complaints that he is unable to obtain the review by a court of the lawfulness of his continued detention at Her Majesty's pleasure and that he has been subject to discrimination on the basis of his status as a person convicted of murder.   B.     Points at issue   46.    The issues to be determined are:         - whether there has been a violation of Article 5 para. 4       (Art. 5-4) as regards the lack of review by a court of the       lawfulness of the applicant's continued detention;         - whether there has been discrimination contrary to Article 14       (Art. 14) in conjunction with Article 5 para. 4 (Art. 5-4) of the       Convention.   C.     Article 5 para. 4 (Art. 5-4) of the Convention   47.    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."         1. Applicability of Article 5 para. 4 (Art. 5-4) to release procedures   48.    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 (Art. 5-4) 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.   49.    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, with no distinction in law and practice from that applied to adults. 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; Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A and Wynne judgment of 18 July 1994, Series A no. 294-A). The requirements of Article 5 para. 4 (Art. 5-4) are accordingly satisfied by the original trial and appeal proceedings of the applicant.   50.    The Commission recalls that in its case-law the Court has distinguished between mandatory and discretionary sentences of life imprisonment. Mandatory life imprisonment is imposed because of the inherent gravity of the offence (ie. in cases of murder) and applied automatically regardless of considerations pertaining to the dangerousness of the offender. No right to review of subsequent release on licence arises in such cases.The discretionary life sentence has a special indeterminate character and has been developed as a measure to deal with mentally ill and unstable offenders. The discretionary sentence serves a preventative rather than a punitive purpose and because of the presence of factors (eg. dangerousness, instability) which are susceptible of change with the passage of time, new issues of lawfulness of continued detention may arise which require the possibility of recourse to a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., Weeks judgment; Thynne, Wilson and Gunnell judgment and Wynne judgment, loc.cit.).   51.    The Commission notes that sentences of detention at Her Majesty's pleasure are imposed automatically in the cases of murder by juveniles (under eighteen years). To that extent, the detention has a similarity with the mandatory sentence imposed in respect of murder by adults. The adult sentence however is fixed at the term of life: detention at Her Majesty's pleasure is on its face indeterminate. Though impliedly a sentence of detention may authorise detention for life, the Commission considers that a distinction must be drawn between a sentence which is fixed by the judiciary at a maximum of life leaving a discretion to the executive as to whether the individual is released earlier and a sentence which has no fixed term and the limits of which are to be defined by the executive.   52.    The Commission has had regard to the origins of the term "detention at Her Majesty's pleasure" which applied in 1800 to the detention of insane offenders and in which context it had a clearly preventative purpose. Juveniles under eighteen have been excluded from the regime of mandatory life imprisonment and also from the notion of "custody for life" which applies to offenders between 18 and 21. The application of the term of detention at Her Majesty's pleasure to juveniles would appear to the Commission to reflect an intention of imposing a distinct regime of detention geared to the special considerations which apply in dealing with very young offenders who are potentially dangerous but who still have formative years ahead of them and may change with maturation.   53.    The applicant has submitted that if this type of detention is regarded as equivalent to a mandatory life sentence fixed punitively to reflect the gravity of the offence this would raise issues under Article 3 (Art. 3) of the Convention in respect of the inhumanity of imposing life sentences on children (which he also points out is forbidden under Article 37 para. a of the United Nations Convention on the Rights of the Child). The Commission considers it unnecessary to examine this issue. It finds that detention at Her Majesty's pleasure is, by its nature and objective, a term of indeterminate detention based primarily on considerations of a preventative, rather than punitive character: the Commission notes in this context the comments of the trial judge in this case with regard to the dangerousness of the applicant.   54.    The Commission recalls that the applicant was sentenced at the age of 16 and has spent 16 years in prison - half of his life and a significant part of his adolescence and young adulthood. The element of his sentence attributed to the purpose of retribution has expired and consideration of risk and dangerousness would appear to be determining factor in his continuing detention. Since, therefore, issues may arise with the passage of time relating to the justification for the applicant's continued detention, the Commission finds that he is entitled under Article 5 para. 4 (Art. 5-4) to have the lawfulness of that detention decided by a court.         2. Compliance with the requirements of Article 5 para. 4       (Art. 5-4)   55.    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 witnesses against him.   56.    The Government have made no submissions on the point, taking the view that the requirements imposed by Article 5 para. 4 (Art. 5-4) as to the supervision of lawfulness of the applicant's detention were satisfied by the original trial and appeal procedure.   57.    The Commission recalls that the Court in the Weeks and Thynne, Wilson and Gunnell cases (loc. cit. above) found that neither the Parole Board (pre-1992) nor the possibility of judicial review satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the Convention in respect of prisoners serving terms of discretionary life imprisonment. The Court held in the Weeks case (loc. cit.) that the Parole Board which could only recommend release lacked the necessary power of decision. Further, in view of the failure to provide prisoners with full disclosure of the adverse material before the Board the procedures did not allow the proper participation of the person adversely affected by the contested decision and could not be regarded as judicial in character. It did not find it necessary to rule on whether an oral hearing would be required.   58.    The Commission has found above that when considering whether to recommend the release of a person detained at Her Majesty's pleasure the Parole Board is dealing with issues relating to the lawfulness of a deprivation of liberty of an individual. In this context, the `court' required by Article 5 para. 4 (Art. 5-4) should have the power to order release and it is essential that the procedures followed should afford proper guarantees that enable an individual to participate effectively in the proceedings before it (see eg. Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33 at p. 24, para. 60). Where questions arise involving, for example, the assessment of character or personal attitudes, it may be essential for the proper and fair examination of the issues that the detained person be given the opportunity to participate in an oral hearing and, if there are disputed issues of fact, the possibility to have witnesses examined and cross-examined and their credibility established in person (see mutatis mutandis   Eur. Court H.R., Kremzow judgment of 21 September 1993, Series A. 268-B at p. 16, para. 67).   59.    The Commission notes that, since October 1992, a new Parole Board has been instituted which has the power to make decisions and which pursuant to its rules has the power to hold oral hearings. Introduced in view of the findings of the Court with regard to discretionary life prisoners, these changes do not however apply to other categories of prisoner. The Parole Board as it presently functions in respect of the applicant still has no decision-making power. Its procedure has however been modified pursuant to the case of Prem Singh (see paras. 33-34 above) to provide for the disclosure of the documents before the Parole Board. There is no provision for oral hearing or for examination and cross-examination of witnesses.   60.    Consequently, the Commission finds that the applicant does not have the possibility of obtaining a review of the lawfulness of his continued detention before a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention.         Conclusion   61.    The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.   D.     Article 14 (Art. 14) of the Convention   62.    Article 14 (Art. 14) of the Convention 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."   63.    The applicant submits 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.   64.    In view of its conclusion in para. 60 above, the Commission does not consider it necessary to examine the complaint that the applicant suffered discrimination contrary to Article 14 (Art. 14) (cf. mutatis mutandis eg. Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A no. 234-A, p. 29, para. 81).         Conclusion   65.    The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 14 (Art. 14) in conjunction with Article 5 para. 4 (Art. 5-4) of the Convention.   E.     Recapitulation   66.    The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 61).   67.    The Commission concludes, unanimously, that it is not necessary to examine whether there has been a violation of Article 14 (Art. 14) in conjunction with Article 5 para. 4 (Art. 5-4) of the Convention (para. 65).   Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                          (C.A. NØRGAARD)                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                   Item ________________________________________________________________   31.03.93               Introduction of the application   27.05.93               Registration of the application   Examination of admissibility   06.07.93               Commission's decision to invite the parties to                       submit observations on the admissibility and                       merits   06.10.93               Government's observations   01.12.93               Applicant's reply   21.01.94               Commission's grant of legal aid   05.04.94               Commission's decision to invite the parties to                       an oral hearing   16.06.94               Applicant's further submissions   30.06.94               Hearing on admissibility and merits   30.06.94               Commission's decision to declare the application                       admissible   Examination of the merits   30.06.94               Commission's deliberations   26.07.94               Government's observations on the merits   11.10.94               Commission's deliberations on the merits, final                       votes and adoption of the Report