CEDH · CASELAW;REPORTS;ENG — 4 septembre 1996

.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                            FIRST CHAMBER                        Application No. 21848/93                                  T. M.                                 against                           the United Kingdom                        REPORT OF THE COMMISSION                    (adopted on 4 September 1996)                            TABLE OF CONTENTS                                                             Page I.    INTRODUCTION      (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-12) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13-17). . . . . . . . . . . . . . . . . . .2     II.   ESTABLISHMENT OF THE FACTS      (paras. 18-26) . . . . . . . . . . . . . . . . . . . . .3        A.    The particular circumstances of the case           (paras. 18-23). . . . . . . . . . . . . . . . . . .3        B.    Relevant domestic law and practice           (para. 24-26) . . . . . . . . . . . . . . . . . . .3     III. OPINION OF THE COMMISSION      (paras. 27-45) . . . . . . . . . . . . . . . . . . . . .5        A.    Complaints declared admissible           (para. 27). . . . . . . . . . . . . . . . . . . . .5        B.    Points at issue           (para. 28). . . . . . . . . . . . . . . . . . . . .5        C.    As regards Article 5 para. 4 of the Convention           (paras. 29-38). . . . . . . . . . . . . . . . . . .5             CONCLUSION           (para. 39). . . . . . . . . . . . . . . . . . . . .7        D.    As regards Article 5 para. 5 of the Convention           (paras. 40-42). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 43). . . . . . . . . . . . . . . . . . . . .7        E.    Recapitulation           (paras. 44-45). . . . . . . . . . . . . . . . . . .7     APPENDIX: DECISION OF THE COMMISSION AS TO THE           ADMISSIBILITY OF THE APPLICATION. . . . . . . . . .8   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 a British citizen, born in 1959. He was represented before the Commission by Mr. David Watson, who is also serving a sentence of life imprisonment.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr. M. Eaton of the Foreign and Commonwealth Office, London.   4.    The case, as declared admissible, concerns the applicant's complaints regarding the speed of the review by the Parole Board of his continued detention and the absence of any enforceable right to compensation.   The applicant invokes Article 5 paras. 4 and 5 of the Convention.   B.    The proceedings   5.    The application was introduced on 3 December 1992 and registered on 13 May 1993.   6.    On 19 October 1993 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 5 paras. 4 and 5 of the Convention and to adjourn examination of other complaints.   7.    The Government's observations were submitted on 6 July 1994 and the applicant was invited to make submissions in reply by 20 September 1994.   8.    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.   9.    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.   10.   On 18 October 1995 the Commission declared admissible the applicant's complaints relating to the speed of review of his detention by the Parole Board under Article 5 paras. 4 and 5 of the Convention. The remaining complaints were   declared inadmissible. The text of the Commission's decision on admissibility was sent to the parties on 27 October 1995 and they were invited to submit such further information or observations on the merits as they wished.   11.   The applicant's representative submitted further observations and information on 8 November 1995, 14 December 1995, 17 January 1996 and 10 March 1996.   12.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   13.   The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             Mrs. J. LIDDY, President           MM.   M.P. PELLONPÄÄ                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS                G.B. REFFI                B. CONFORTI                N. BRATZA                I. BÉKÉS                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL   14.   The text of this Report was adopted on 4 September 1996 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   16.   The Commission's decision on the admissibility of the application is annexed hereto.   17.   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.    The particular circumstances of the case   18.   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.   19.   At the age of 17, the applicant who had been drinking was involved in the killing of two 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.   20.   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.   21.   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.   22.   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.   23.   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   24.   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). In its judgment, the Court had found a violation of Article 5 para. 4 in that the applicants, serving discretionary life sentences of imprisonment, had no opportunity to obtain judicial control of the lawfulness of their continued detention after the expiry of their tariff (the part of sentence attributable to deterrence and punishment) when risk, or prevention, became the basis for further detention.   25.   Pursuant to section 34 of the 1991 Act, after the tariff of a discretionary life prisoner   has expired, the prisoner may require the Secretary of State to refer his case to the Parole Board (known in this context as the Discretionary Life Panel "DLP") 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.   26. The operation of the procedure has been described by the Prison Service as follows (A.T. v. the United Kingdom, Comm. Rep. 29.11.95 para. 24).        "... Referral of cases to the Board        Section 34 (5) of the 1991 Act enables a discretionary life      prisoner to require the Secretary of State to refer his case to      the Board after he has served the relevant part of his sentence      <tariff> and every two years thereafter beginning with the      disposal of that reference.        In practice, it is never necessary for a prisoner to invoke this      provision because, as a matter of policy, the Secretary of State      refers a case to the Board on, or shortly after, expiry of the      relevant part.   The DLP hearing then follows some 23 weeks (see      the next paragraph) later.   (In certain very exceptional cases      where the prisoner has made rapid and impressive progress and has      already been adequately and successfully tested in open      conditions before expiry of the relevant part, the Secretary of      State may exercise his discretion to refer such cases to the      Board before expiry so that the hearing may be held on or shortly      after the relevant part expires.)        The significance of the 23 week period is that this is the time      generally required for the timetable of events leading up to a      DLP hearing. ...For any second and subsequent reviews, the case      is referred to the Board some 81 weeks following the previous      hearing (ie 104 weeks minus 23 weeks), thus enabling that hearing      to take place on the second anniversary of the disposal of the      previous reference."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   27.   The Commission has declared admissible the applicant's complaints that the review of the lawfulness of his detention after the expiry of his "tariff" was not taken "speedily" and that he has no enforceable right to compensation in respect of that failing.   B.    Points at issue   28.   The issues to be determined are:   -     whether there has been a violation of Article 5 para. 4      (Art. 5-4) of the Convention;   -     whether there has been a violation of Article 5 para. 5      (Art. 5-5) of the Convention.   C.    As regards Article 5 para. 4 (Art. 5-4) of the Convention   29.   Article 5 para. 4 (Art. 5-4) of the Convention provides as follows.        "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."   30.   The applicant submits that a lack of sentence planning resulted in a failure to prepare him for release in advance of his tariff date and thus enable the question of his "dangerousness" to be dealt with promptly and avoid an unjustified and prolonged detention after the expiry of his tariff . He contends that had he been subject to a preliminary review three years before the expiry of tariff (as is now the current practice) he would have been held in open conditions at the time of the Parole Board's consideration of his case in February 1994 and in such circumstances it is likely that he would have been released.   31.   The Government point to the large amount of work which had to be done before the DLPs could operate, from providing the statutory framework to creating procedures and staff for a body which would, in an initial phase, have to consider the cases of all 600 discretionary life prisoners.   They consider that the backlog was precisely of the temporary nature referred to by the European Court of Human Rights in the case of Zimmermann and Steiner (Eur. Court H.R., judgment of 13 July 1983, Series A no. 66), in the context of civil cases.   They consider that in ensuring that the first DLP hearings could be held in early October 1992, and the applicant's case in February 1994, they acted diligently and speedily.   32.   The Commission recalls that the review required by Article 5 para. 4 (Art. 5-4) of the Convention is generally incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceedings, but that the provision may require the possibility of subsequent review of the lawfulness of detention by a court.   This is so in the case of the continuing detention of a person sentenced to an discretionary life sentence in the United Kingdom where the tariff, or the period of confinement necessary to satisfy the requirements of retribution and deterrence, has expired (see   Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A).   33.   The "tariff" in the applicant's case expired on 6 May 1993.   From that date the applicant was entitled to take proceedings by which the lawfulness of his detention would be determined speedily by a court (see, in this connection, No. 18757/91, Dec. 14.10.92, unpublished, where the Commission found that the complaint by a discretionary life prisoner that he could not challenge the lawfulness of his detention was premature because his tariff had not expired).   34.   The first review of the lawfulness of the applicant's detention by the Parole Board, which pursuant to the 1991 Act had power to order his release, was held on 1 February 1994, eight months and 24 days after expiry of the applicant's tariff.   The Commission must therefore decide whether that decision was taken "speedily" within the meaning of Article 5 para. 4 (Art. 5-4) of the Convention.   35.     Since that review was the first time that the question of risk, or danger, as the basis of the applicant's continued detention was before the Parole Board, such a review must, in the Commission's opinion, be dealt with particularly expeditiously (see eg. A.T. v. the United Kingdom, No. 20488/92 Comm. Rep. 29.11.95, para. 34, unpublished).   36.   The Commission recalls that the Court has considered the "speediness" of review under Article 5 para. 4 (Art. 5-4) on several occasions.   For example, in its E. v. Norway judgment the Court recalled - in the context of a first challenge to a newly decided ground for detention -that the notion of "promptly" in Article 5 para. 3 (Art. 5-3) of the Convention indicated greater urgency that the notion of "speedily" in Article 5 para. 4   (Art. 5-4) (Eur. Court H.R.,judgment of 29 August 1990, Series A no. 181-A, p. 13, para. 30 and p. 27 para. 64).   Having examined the circumstances of the case, it nevertheless found that a period of eight weeks could not be reconciled with the notion of "speedily" (p. 28, paras. 65 - 67).   37.   In the present case, as observed by the Commission in the case of A.T. (loc. cit. para. 36), the entire system of court review of the lawfulness of discretionary life prisoners' detention was new.   The system was brought into being by the Criminal Justice Act 1991, which was enacted on 25 July 1992 and the relevant parts of which entered into force on 1 October 1992.   The Commission does not underestimate the size of this operation, and appreciates the need for criteria to determine the order in which to deal with the "old" cases - that is, the cases of those whose tariff expired before, or (like the applicant's) soon after, 1 October 1992.   The Commission has already commented, in its final decision on admissibility in the case of A.T. (No. 20448/92, dec. 7.9.95), that there was no indication that the priorities were unreasonable.   38.   However, the Commission notes that a two-year period elapsed between the judgment in the case of Thynne, Wilson and Gunnell and the entry into force of the relevant parts of the Criminal Justice Act 1991.   It considers that there was time for contingency planning of the logistical measures to be taken if the law was passed.   Further, it recalls the importance of the right to liberty in a democratic society (cf. in connection with Article 5 para. 1 (Art. 5-1) of the Convention, Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 16, para. 37 with further references). In the context of a first decision on the risk posed by a person whose "tariff" has expired, the Commission finds that the above considerations (para. 37 above) cannot justify a period of over eight months before such a first review.        CONCLUSION   39.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards the delay in the review of the applicant's continued detention.   D.    As regards Article 5 para. 5 (Art. 5-5) of the Convention   40.   The applicant further complains of a violation of Article 5 para. 5 (Art. 5-5) of the Convention in that he does not have an enforceable right to compensation in respect of the violation of Article 5 para. 4 (Art. 5-4) in his case.   41.   Article 5 para. 5 (Art. 5-4) of the Convention provides as follows:        "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."   42.   In the present case, the   Commission has found a violation of Article 5 para. 4 (Art. 5-4) of the Convention. It is not contested by the Government that this violation could not give rise to an enforceable claim for compensation before the domestic courts.        CONCLUSION   43.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention.   E.    Recapitulation   44.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention as regards the delay in the review of the applicant's continued detention (para. 39).   45.   The Commission concludes, unanimously, that there has been a violation of Article 5 para. 5 (Art. 5-5) of the Convention (para. 43).        M.F. BUQUICCHIO                            J. LIDDY      Secretary                                President to the First Chamber                     of the First Chamber