CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 octobre 1995

.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. 21848/93                       by T.M.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 18 October 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 23 November 1992 by T.M. against the United Kingdom and registered on 13 May 1993 under file No. 21848/93;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      6 July 1994 and the applicant's observations in reply dated      20 March 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1959 and is currently serving a prison sentence of discretionary life imprisonment in HM Prison Lindholme. He is represented before the Commission by Mr. David Watson, who is also serving a sentence of life imprisonment.   A.    The particular circumstances of the case        The facts as submitted by the parties may be summarised as follows.        From the age of seven, the applicant was in the care of a local authority during which time he suffered emotional, physical and sexual abuse. He developed a drink problem and a history of self-mutilation and attempted suicide.        At the age of 17, the applicant who had been drinking was involved in the killing of 2 women. He pleaded guilty to manslaughter and received a discretionary life sentence on 13 October 1978. He recalls that the judge stated that he would be released when it was safe.        After serving about four and a half years, the applicant recalls being informed that he would not be considered for release for another nine years. He later was shown a letter from the Secretary of State stating that he might be considered three years earlier.        His tariff (the part of his sentence attributable to deterrence and punishment) had been fixed after his trial at 18 years. This was reduced by the Secretary of State to 15 years in 1987. The applicant was not informed of these matters at the time.        In a letter dated 21 July 1992 on behalf of the Secretary of State, the applicant was informed that the "relevant part <tariff> of your sentence is 15 years, which expires on 6 May 1993". At that date his case would be referred to the Parole Board under the provisions of the Criminal Justice Act 1991.        The Parole Board considered the applicant's case on 1 February 1994 and recommended that the applicant be transferred to open prison conditions and his case be reviewed in eighteen months, which recommendation was accepted by the Secretary of State.   B.    Relevant domestic law and practice        Release on licence and revocation of licences        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        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."        The applicable procedures were the subject of examination in judicial review proceedings in the Handscomb case (R. v. Secretary of State for Home Department, ex parte Handscomb and others (1988) 86 Cr. App. R. 59) in which the Divisional Court noted that the Lord Chief Justice and the trial judge were being asked to provide a tariff representing the number of years which a discretionary life prisoner should be detained to serve the twin purposes of retribution and deterrence and that the views of the judges as to tariff were intended to have a decisive bearing in all cases as regarded the fixing of the review procedures.        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.        ii. From 1 October 1992        On 1 October 1992, Part II of the Criminal Justice Act 1991 (the 1991 Act) came into force.        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).        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.   COMPLAINTS        The applicant complains under Article 3 of the Convention of the treatment which he received while in care of the local authority referring to physical and sexual abuse and a denial of information in relation to his family.        The applicant also complains about the length of his sentence as fixed by the tariff. He invokes Article 5 para. 1 (a) of the Convention in that the 15 year tariff was in effect fixed by a committee sitting in private in or about 1983 five years after his trial. Since this committee did not constitute an independent and impartial tribunal and its decision was not made public or reached within a reasonable time, he invokes Article 6 of the Convention. He also invokes Article 3 as regards the cruelty of being kept in prison under these circumstances.        The applicant further complains that the he did not obtain a proper review of the lawfulness of his continued detention by the previous Parole Board as required by Article 5 para. 4 and that he has no possibility of speedy review by the new Parole Board in view of the huge waiting list of cases. He claims compensation under Article 5 para. 5 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 3 December 1992 and registered on 13 May 1993.        On 19 October 1993, the Commission decided to communicate the application to the Government and to ask for written observations on the admissibility and merits of the application in respect of issues arising under Article 5 paras. 4 and 5.        The Government's observations were submitted on 6 July 1994 and the applicant invited to make submissions in reply by 20 September 1994. On the applicant's representative failing to respond, the Secretariat informed him by letter dated 7 November 1994 that in the absence of any response the Commission might proceed to an examination of the case as it stood. By a registered letter dated 6 December 1994, the Secretariat referred to the continuing lack of response and warned that in the absence of any explanation the Commission might proceed to strike the case from its list.        Following a letter from the applicant's representative dated 24 January 1995, in which he stated he wished to continue with the application, the Commission on 22 February 1995 agreed to an extension in the time-limit for submission of observations on behalf of the applicant. The applicant's representative submitted observations in reply on 20 March 1995.   THE LAW   As to the delay concerning review by the new Parole Board   1.    The applicant complains of the delay between the expiry of his tariff and the review of his detention by the Parole Board. He alleges a violation of Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention which provide 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 the 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."        Article 26 (Art. 26) of the Convention: exhaustion of domestic remedies        The Government consider that the applicant has not exhausted domestic remedies since he could have applied to the courts for judicial review of delay in respect of the listing of the case, or in respect of delay in the hearing of the case once it had been listed.        The Commission recalls that the same argument was raised in the case of A.T. v the United Kingdom (No. 20448/92, dec. 28.6.95) which also concerned a complaint of delay in the review given to a discretionary life prisoner by the new Parole Board. In its decision on admissibility the Commission noted that an application for judicial review would have been alleging that the priorities set by the Home Secretary for putting the cases of discretionary life prisoners   were irrational or otherwise "Wednesbury unreasonable".   The Commission found that insuperable barriers were in the way of any such application since, for example, there was no indication that the priorities set up by the Home Secretary were in any way unreasonable and it was not possible to challenge the provisions of a statute such as the Criminal Justice Act 1991 by way of judicial review.        The Commission finds that the same considerations apply in the present case. It therefore concludes that the applicant has not failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention.        As regards the substance of the complaints        The Government explain that, on the coming into force of the Criminal Justice Act 1991, the authorities established a priority list of cases to be heard, with precedence being given to prisoners whose tariffs had expired before 1 October 1992 (when the Act came into force). The delay in hearings for prisoners whose tariff expired after that date was, in their submission, slight and an inevitable consequence of the large number of prisoners who became eligible for review at the same time. Further, steps were taken to minimise any delay by, inter alia, adding 22 new members to the Parole Board to cope with the new workload.        The applicant's representative submits that a discretionary life sentence does not authorise imprisonment beyond the tariff date   unless there is evidence of dangerousness and that Article 5 para. 4 (Art. 5-4) requires that this element be reviewed speedily which should, in his opinion, be a matter of days not months. He points out that time before the expiry of tariff can be used to prepare for a hearing and that proper sentence planning can prevent undue delays on expiry of tariff periods.        The Commission finds that the present complaints under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) involve serious issues of law under the Convention, the determination of which must be reserved to an examination of the merits.        This part of the application cannot therefore be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention,   no other ground for declaring it inadmissible having been established.   As to the remaining complaints   2.    The applicant complains also of a lack of a proper review prior to the new system coming into force and invokes Article 5 para. 4 (Art. 5-4) of the Convention also in this respect.        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" part 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 notes that in the present case the applicant's tariff expired on 6 May 1993 after the new system had come into force. In these circumstances, the Commission finds that the applicant's complaints about a lack of proper review prior to this date fail to disclose a violation of Article 5 para. 4 (Art. 5-4) of the Convention (eg. No. 18757/91, dec. 14.10.92, to be published in D.R.). It follows that this part of the application must be rejected as manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant also makes a number of complaints relating to the tariff fixed in respect of his sentence. He complains of it being excessively long and that it was fixed by a committee rather than a judicial body fulfilling the necessary judicial guarantees. He invokes Articles 3, 5 paras. 1 (a) and 6 (Art. 3, 5-1-a, 6) of the Convention.        Insofar as the applicant complains of the length of the tariff, the Commission notes that matters of the fixing of the appropriate length of sentence for particular offences generally fall outside the scope of the Convention. Even assuming an issue could arise as regards the imposition of a sentence excessively disproportionate to the crime charged, the Commission is satisfied that the facts of the present case would not fall within that category. The Commission also finds that the applicant's complaints with regard to the cruelty of his continued detention do not disclose ill-treatment of a nature or degree to fall within the scope of Article 3 (Art. 3) of the Convention.        As regards the applicant's complaints as to the fixing of the tariff by a committee and not a court, the Commission recalls that the basis of the applicant's detention is his conviction by a competent court, which sentenced him to a term of discretionary life imprisonment. Further it appears that the practice since 1983 has been for the Secretary of State to accept the judicial view of tariff. While there may have been some confusion in the applicant's case as to whether the tariff was 18 or 15 years, there is no indication that the Home Secretary departed from the view of the judiciary in this case.        Consequently, the Commission finds that the applicant's complaints in this regard fail to disclose any appearance of a violation of Article 5 para. 1 (a) or Article 6 para. 1 (Art. 5-1-a, 6-1) of the Convention.        It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant, lastly, complains under Article 3 (Art. 3) of the Convention of the treatment which he received while in care of the local authority, referring to physical and sexual abuse and a denial of information in relation to his family.        The Commission, however, is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision, 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". Where no remedies exist in relation to the complaints in issue, the six month period runs from the date of the act complained of.           In the present case, even assuming that the applicant has exhausted any domestic remedies which might have been available to him in relation to his treatment while in care, the Commission notes that the applicant left the care of the local authority in or about 1977 whereas the application was submitted to the Commission on 23 November 1992,   that is, more than six months after this period had ended.   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 ADMISSIBLE the applicant's complaints under Article 5      paras. 4 and 5 (Art. 5-4, 5-5) of the Convention regarding the      speed of the review before the Parole Board, without prejudging      the merits of the case;        DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber            President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)