CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 novembre 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. 22162/93                   by M.H.                   against the United Kingdom         The European Commission of Human Rights sitting in private on 28 November 1994, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  A. WEITZEL                  F. ERMACORA                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  E. KONSTANTINOV                  D. SVÁBY                  G. RESS              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 29 April 1993 by M.H. against the United Kingdom and registered on 6 July 1993 under file No. 22162/93;         Having regard to:   -      the reports 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 applicant may be summarised as follows.         The applicant is a United Kingdom citizen born in 1949 and is currently serving a sentence of life imprisonment in HM Prison Stocken.   A.     Particular circumstances of the case         The applicant was convicted of the murder of an elderly man in 1972.   He received a mandatory sentence of life imprisonment.         The applicant's sentence was reviewed by the Parole Board in or about 1984.   A release date was apparently set and he was transferred to a pre-release hostel under supervision.   Following a minor motoring offence, for which he was conditionally discharged by the court, he was recalled to prison.   His case was reviewed by the Parole Board in January 1986.   The Parole Board decided to defer the case until January 1988 as a result of police investigations involving the applicant.         On 1 July 1987 the applicant was charged with three offences of incest and sentenced to 4 years' imprisonment.   To date the applicant claims he is innocent of those charges.         In 1988, the Parole Board set the next review for 1990. At that review, despite favourable reports from his prison, the case was set for further review in 1992. In 1992, the Board set the next review for December 1994 but recommended the applicant's transfer to an open prison.         In a letter dated 11 May 1993 from the Life Sentence Review Section of the Prison Service, the applicant was informed that his continued detention now depended upon the assessment of the potential risk he might pose to the public if released.         The applicant was transferred to an open prison in or around late 1993 or early 1994. Since 1985 the applicant has been in six different prisons.   B.     Relevant domestic law and practice         In addition to the facts as submitted by the applicant the Commission has had regard to the outline of relevant domestic law and practice in the judgment of the European Court of Human Rights in the Wynne case (judgment of 18 July 1994, Series A no. 294-A, paras. 12-23). In particular the Commission has noted the following:         1.    Life sentences         Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965.         A life sentence may also be passed, in the exercise of the court's discretion, on a person convicted of any of the offences for which life imprisonment is provided by the relevant legislation as the maximum penalty for the offence concerned - a discretionary life sentence. Broadly speaking, the use of such a discretionary life sentence is reserved for cases where the offence is grave and it appears that the accused is a person of unstable character likely to commit such offences in the future, thus making him dangerous to the public in respect of his probable future behaviour unless there is a change in his condition.         The Criminal Justice Act 1991 ("the 1991 Act") introduced changes to the procedures for the release of discretionary life prisoners to reflect the fact that reviews, complying with Article 5 para. 4 of the Convention, are required in respect of the non-punitive period of discretionary life sentences. These changes were not extended to mandatory life prisoners.         In the course of the debate in the House of Commons in respect of what was to become the 1991 Act, the Minister of State for Home Affairs explained, inter alia, the difference between mandatory and discretionary life sentences, and described mandatory life sentences as follows:         "The nature of the mandatory sentence is different. The element       of risk is not the decisive factor in handing down a life       sentence. According to the judicial process, the offender has       committed a crime of such gravity that he forfeits his liberty       to the state for the rest of his days. If necessary he can be       detained for life without the necessity for a subsequent judicial       intervention."         However the English courts have recognised, in determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period ("the tariff") and a security period, the latter period being linked to the assessment of the prisoner's risk to the public following the expiry of the tariff.         The English courts have also recognised that there continues to be a gap between the theory and practice in respect of mandatory life sentences (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 All England Reports 92). In that case Lord Mustill, with whom the other Law Lords agreed, went on to state that, while the mandatory life sentence may be converging with the discretionary life sentence, nevertheless there remained a substantial gap between the two types of sentences and it would be a task for Parliament to further assimilate the effect of the two types of life sentences.         2.    Release of life prisoners on licence and revocation of a            licence         The Criminal Justice Act 1967 ("the 1967 Act") contained the relevant statutory provisions in respect of Parole Board reviews and the powers of the Secretary of State in this regard. These provisions have been incorporated into the 1991 Act since October 1992 and continue to apply to mandatory life prisoners.         Pursuant to the above legislation the Secretary of State may release on licence a person only if recommended to do so by the Parole Board, and after consultation with the Lord Chief Justice of England and the trial Judge if available. The decision on whether to release is, however, for the Secretary of State alone.         Broadly speaking, once a release date is fixed, a prisoner may be transferred to a pre-release hostel as part of a pre-release programme during which time the prisoner continues to be assessed.         The Secretary of State may revoke the licence of a person either on his own initiative or on the recommendation of the Parole Board. If a person subject to a licence is convicted on indictment of an offence, the trial court may, whether or not it passes any other sentence on him, revoke the licence.         The effect of the revocation of a licence, whether by a Secretary of State or a court, is that the person is liable to be re-detained in pursuance of his original sentence (formerly section 62(9) of the 1967 Act).   COMPLAINTS         The applicant complains under Article 3 of the Convention in relation to alleged mental distress caused by the length of his detention and the delays between each Parole Board review. He also complains under Article 5 paras. 4 and 5 of the Convention as regards the procedure for determining the continued lawfulness of his detention. Next he complains of a violation of Article 6 paras. 1, 2 and 3 of the Convention in relation to the alleged absence of a fair trial by an independent and impartial tribunal, the length of proceedings, the presumption of innocence and the right to a proper defence.         The applicant then claims under Articles 7, 8 and 14 of the Convention, and Article 1 of Protocol No. 1 to the Convention, that he has served a heavier penalty than was applicable at the time the offence was committed; that his family life has been interrupted; that he has been discriminated against (as regards fixed term prisoners and civilians) and that the peaceful enjoyment of his possessions has been interrupted.         Finally, the applicant invokes Articles 1 and 2 of Protocol No. 4 and Articles 3 and 4 of Protocol No. 7 to the Convention, as well as Article 13 of the Convention, the latter on the basis that allegedly he has no effective remedy before a national authority.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 29 April 1993 and was registered on 6 July 1993.         On 11 October 1993 the Commission decided to communicate the applicant's complaints under Article 5 para. 4 of the Convention to the respondent Government without requesting observations.         By letter dated 4 August 1994 the Secretariat of the Commission provided the applicant with a copy of the judgment of the Court in the Wynne case (Eur. Court H.R., Wynne judgment of 18 July 1994, Series A 294-A), requesting the applicant to inform the Commission whether, in light of that judgment, the applicant wished to maintain his case.         By letter received on 18 August 1994 the applicant confirmed that he wished to continue with his application.         On 3 September 1994 the Commission decided to continue its examination of the admissibility of the application without seeking the observations of the Government.   THE LAW   1.     The applicant complains under Article 3 (Art. 3) of the Convention in relation to the mental distress caused by the length of his ongoing detention and the delays between each Parole Board review.         Article 3 (Art. 3) of the Convention reads as follows:         "No one shall be subjected to torture or to inhuman or degrading       treatment or punishment."         The Commission recalls that Article 3 (Art. 3) of the Convention cannot be read as requiring that an individual serving a sentence of life imprisonment must have that sentence reconsidered by a national authority (judicial or administrative) with a view to its remission or termination (No. 11635/85, Dec. 3.3.86, D.R. 46 p. 237). In the present case the Commission notes that the applicant is serving a sentence of life imprisonment.         As to whether there are particular factors in the present case which would bring the applicant's detention within the scope of Article 3 (Art. 3) of the Convention the Commission recalls that, according to the constant case-law of the Convention organs, the treatment in respect of which an applicant complains must attain a minimum level of severity if it is to fall within the scope of Article 3 (Art. 3) of the Convention. The assessment of the minimum is relative and depends, therefore, on all the circumstances of the case (see, for example, No. 8463/78, Dec. 9.7.81, D.R. 26 p. 49 and Eur. Court H.R., Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 162).         The Commission has examined all of the submissions of the applicant but does not consider that, in the circumstances of this case, the treatment of which the applicant complains reaches the threshold of severe ill-treatment prohibited by Article 3 (Art. 3) of the Convention. The Commission therefore finds the applicant's complaint under Article 3 (Art. 3) of the Convention manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant complains under Article 5 para. 4 (Art. 5-4) of the Convention in relation to the Parole Board reviews which have been conducted in respect of his detention. He also complains under Article 5 para. 5 (Art. 5-5) of the Convention that he has no enforceable right to compensation in this regard.         Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention read as follows:         "4. 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 his detention is not lawful.         5. Everyone who has been the victim of arrest or detention in       contravention of the provisions of this Article shall have an       enforceable right to compensation."         The Commission recalls the judgment of the European Court of Human Rights in the case of Wynne v. the United Kingdom (Eur. Court H.R., judgment of 18 July 1994, Series A no. 294-A). In that case the applicant received a mandatory life sentence and was released on licence, which licence was subsequently revoked. It was found by the Court that the legal basis for his continuing detention was a mandatory life sentence (although "supplemented" by a subsequent discretionary life sentence).         The applicant in the Wynne case submitted that the distinction between mandatory and discretionary life sentences, set out in the Thynne, Wilson and Gunnell case (Eur. Court H.R., Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190), was no longer valid referring in support of his arguments to recent domestic practices, case-law and official pronouncements. Therefore, the applicant in the Wynne case argued that he was entitled to a review complying with Article 5 para. 4 (Art. 5-4) of the Convention. The Court in the Wynne case (loc. cit., paras. 35-36), however, found as follows:         "..... the fact remains that the mandatory life sentence belongs       to a different category from the discretionary sentence in the       sense that it is imposed automatically as the punishment for the       offence of murder irrespective of considerations pertaining to       the dangerousness of the offender ..... That mandatory life       prisoners do not actually spend the rest of their lives in prison       and that a notional tariff period is also established in such       cases - facts of which the Court was fully aware in Thynne,       Wilson and Gunnell ..... - does not alter this essential       distinction between the two types of life sentence .....         ..... Against the above background, the Court sees no cogent       reasons to depart from the finding in the Thynne, Wilson and       Gunnell case that, as regards mandatory life sentences, the       guarantee of Article 5 para. 4 (Art. 5-4) was satisfied by the       original trial and appeal proceedings and confers no additional       right to challenge the lawfulness of continuing detention or re-       detention following revocation of the life sentence .....       Accordingly, in the circumstances of the present case, there are       no new issues of lawfulness which entitle the applicant to a       review of his continued detention under the original mandatory       life sentence."         In the present case the Commission notes that the applicant was sentenced to a mandatory life sentence and was released on licence, which licence was revoked following his conviction for another offence. It is also noted that the applicant was then re-detained in pursuance of the original mandatory life sentence (section 62 (9) of the 1967 Act and the equivalent provision in the 1991 Act).         The Commission further notes that the applicant has submitted no evidence to demonstrate that the character of the mandatory life sentence has changed in domestic law. It remains a sentence imposed automatically as punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. The Commission therefore finds, as did the Court in the above-mentioned Wynne case, that the applicant has advanced no cogent reason to depart from the finding in the Thynne, Wilson and Gunnell case (loc. cit.).         Accordingly, the Commission concludes that the guarantees provided by Article 5 para. 4 (Art. 5-4) of the Convention were satisfied by the original trial and appeal proceedings (if any) of the applicant. It finds that no new issues of lawfulness arose in relation to the applicant's detention which entitled the applicant to a review under Article 5 para. 4 (Art. 5-4) of the Convention.         As no appearance of a violation of either paragraph 4 or paragraphs 1 to 3 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the Convention has been established in the present case, the applicant is not entitled to an enforceable right to compensation under Article 5 para. 5 (Art. 5-5) of the Convention.         It follows that the Commission must reject the complaints of the applicant under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention as manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant next complains under Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3) of the Convention, but does not specify the nature of the alleged violation of these provisions.         Insofar as the applicant raises Article 6 (Art. 6) of the Convention in relation to the conduct of the Parole Board reviews, the Commission notes that it has already considered this aspect of the case in the context of Article 5 para. 4 (Art. 5-4) of the Convention, being the lex specialis in the matter. The Commission does not find it necessary, therefore, to reconsider it in the light of Article 6 (Art. 6) of the Convention.         Insofar as the applicant raises Article 6 (Art. 6) of the Convention in relation to his conviction in 1988, the Commission recalls its constant case-law to the effect that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf., for example, No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45). However the Commission considers that the applicant, apart from professing his innocence of the relevant charges, has not raised any matter in his application that would demonstrate that his trial or conviction in 1988 involved a violation of any provision of the Convention.         In conclusion, the Commission has examined the case-file, but finds no evidence which might disclose any appearance of a violation of Article 6 paras. 1, 2 or 3 (Art. 6-1, 6-2, 6-3) of the Convention. The Commission must therefore reject the complaints of the applicant under Article 6 (Art. 6) of the Convention as manifestly ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.   4.     The applicant also complains that he has served a heavier sentence than was applicable at the time of his conviction, that his family life has been disrupted, that he has been discriminated against and that the peaceful enjoyment of his possessions has been interrupted. He invokes Articles 7, 8 and 14 (Art. 7, 8, 14) of the Convention and Article 1 of Protocol No. 1 to the Convention in this regard, which guarantee, inter alia, freedom from retroactive criminal penalties, the right to respect for private and family life, freedom from discrimination in the securement of Convention rights and the right to the peaceful enjoyment of possessions, respectively.         However, the Commission finds no element of retroactivity in the sentences imposed on the applicant for his crimes. It also finds no evidence in the case of any interference with the applicant's right to respect for private and family life which would not be justified in a democratic society for the prevention of disorder or crime. Nor does it find any evidence of discrimination or unjustified interference with the applicant's property rights.         It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.     The applicant then complains under Articles 1 and 2 of Protocol No. 4 and Articles 3 and 4 of Protocol No. 7 (P4-1, P4-2, P7-3, P7-4) to the Convention, which concern, inter alia, detention on civil matters, liberty of movement, compensation for a miscarriage of justice and the principle of "ne bis in idem", respectively.         However, the Commission notes that the United Kingdom has not ratified these two Protocols to the Convention. Therefore, the Commission has no competence to deal with this aspect of the applicant's case, which must be rejected as being incompatible ratione personae with the provisions of the Convention, pursuant to Article 27 para. 2 (Art. 27-2).   7.     Finally, the applicant invokes Article 13 (Art. 13) of the Convention, claiming that he does not have an effective remedy before a national authority in respect of his complaints.         Article 13 (Art. 13) of the Convention provides as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         However, the case-law of the Convention organs establishes that Article 13 (Art. 13) does not require a remedy in domestic law for all claims alleging a breach of the Convention; the claim must be an arguable one (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52). In the light of the above conclusions concerning the applicant's other complaints under the Convention and Protocols, the Commission finds that the applicant does not have an arguable claim of a breach of his rights and freedoms which warrants a remedy under Article 13 (Art. 13).         It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission        President of the Commission                 (H.C. KRÜGER)                      (C.A. NØRGAARD)