CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.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. 39047/97                       by Abdul Quayyam RAJA                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 20 May 1998, the following members being present:              MM.    E. BUSUTTIL, Acting President                  N. BRATZA                  A. WEITZEL                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs    M. HION            Mr     R. NICOLINI              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 8 April 1997 by Abdul Quayyam RAJA against the United Kingdom and registered on 19 December 1997 under file No. 39047/97;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen born in 1956 and currently serving a sentence of life imprisonment in Long Lartin prison, Evesham. Before the Commission, he is represented by Mr. Idris Mir, a solicitor practising in Bradford.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In February 1985, the applicant pleaded guilty to the false imprisonment of an Indian diplomat. The diplomat, who had been kidnapped and held hostage by the Jammu and Kashmir Liberation Front in order to be exchanged for a Kashmiri freedom fighter held in India, had been killed. The applicant was tried on a murder charge and convicted by the jury. The prosecution case had been that the applicant, a lesser member of the conspiracy, had been present at the time the murder was carried out by one of the leaders of the conspiracy.        In sentencing, the judge acknowledged that the applicant's role in the conspiracy was a lesser one. He sentenced the applicant to eighteen years' for false imprisonment. In respect of the mandatory sentence of life imprisonment imposed for the murder charge, the judge made no recommendation as to the minimum time that should be served. On appeal, the Court of Appeal on 6 December 1985 reduced his sentence on false imprisonment to 15 years.        In August 1988, the applicant was informed by the prison authorities that his first Local Review Committee review would be in 2001, after he had served 17 years but he was told that this should not be taken as implying that twenty years has been set as the tariff period necessary to meet the requirements of retribution and deterrence in this case.        In June 1993, the applicant applied for judicial review to challenge the length of his tariff and establish his right to know the advice   the Secretary of State had received from the judiciary before fixing the tariff as well as any other relevant factual matters. Following the House of Lords' decision in the case of R. v. Secretary of State ex parte Doody (1992 3 AER 92), the proceedings terminated on 28 July 1993, with the Secretary of State undertaking to disclose the length of the existing tariff and the substance of any judicial advice and recommendations, and to reconsider the tariff in light of any representations made by the applicant.        On 27 August 1993, the Home Office informed the applicant that his tariff had been originally fixed at 25 years and that the trial judge had recommended 15 years and the Lord Chief Justice 21 years. The applicant made representations, supported by various persons, to the effect that a tariff of 15 years was more appropriate.        In a letter of 20 December 1993, the Home Office informed the applicant that a tariff of 25 years had been fixed.        In March 1994, the applicant commenced judicial review proceedings, claiming, inter alia, that the decision-making process in fixing the tariff was unfair since there had not been full disclosure of the materials before the Secretary of State. Leave was granted on 24 March 1994. The Secretary of State proceeded to disclose to the applicant's solicitor various documents, including the full text of the judicial comments and a report from the police.        In its judgment of 16 December 1994, the Court of Appeal quashed the Secretary of State's decision to set the tariff at 25 years. The applicant made further representations to the Secretary of State in respect of his tariff. By letter dated 15 October 1996, the applicant was informed that the tariff was set at 25 years.        A further application for leave to apply for judicial review was refused on 12 May 1997.     COMPLAINTS        The applicant submits that the process whereby the tariff of a mandatory life sentence prisoner is fixed by the Secretary of State is so closely akin to a sentencing exercise as to attract the application of Article 6 para. 1. The requirements of Article 6 para. 1 are not complied with by the administrative procedure, in particular, because the tariff is set by the Secretary of State, not by a court or tribunal independent of the executive and it is fixed without the benefit of a fair, open and public hearing.     THE LAW        The applicant complains that he did not receive a fair hearing complying with the requirements of Article 6 para. 1 (Art. 6-1) in respect of the procedure by which the Secretary of State fixed the tariff.        Article 6 para. 1 (Art. 6-1) of the Convention provides in its first sentence:        "In the determination of his civil rights and obligations or of      any criminal charge against him, everyone is entitled to a fair      and public hearing within a reasonable time by an independent and      impartial tribunal established by law."        The Commission notes that the applicant submits that the tariff- fixing procedure applied in respect of his sentence for murder is akin to a sentencing exercise. It recalls that the tariff is set as representing the minimum period to be served by the prisoner, inter alia, to satisfy the requirements of retribution and deterrence.        While Article 6 para. 1 (Art. 6-1) clearly applies to the sentencing part of the determination of a criminal charge, the Commission considers    that, where life imprisonment is imposed in respect of murder, the sentencing is carried out by the trial judge after the accused has been convicted. Life imprisonment for murder is a mandatory sentence automatically imposed by law with regard to the severity of the offence irrespective of considerations of the dangerousness of the offender (Eur. Court HR, Wynne v. the United Kingdom judgment of 18 July 1994, Series A no. 294-A, p. 14, para. 35). It is in a distinct category from discretionary life sentences and sentences of detention during Her Majesty's pleasure which are indeterminate and whose character and purpose are identifiably different being justified primarily by considerations of the offenders' character, mental state or age and their resulting dangerousness, which factors may change over time (eg. Eur. Court HR, Thynne, Wilson and Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no. 190-A, p. 30, para. 76 and Hussain v. the United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252 at p. 269, paras. 53-4).   The tariff-fixing procedure in respect of mandatory life prisoners therefore must be regarded as an administrative procedure governing the implementation of the sentence and not as part of the determination of the sentence itself.        Consequently, the Commission finds that Article 6 para. 1 (Art. 6-1) does not apply to the fixing of the tariff of the mandatory life sentence of the applicant. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.     M.F. BUQUICCHIO                                 E. BUSUTTIL      Secretary                                  Acting President to the First Chamber                          of the First Chamber