CEDH · PRESS;GENERAL;ENG — 10 décembre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7E795CD9 { width:43.48pt; display:inline-block } .sFD66A3C5 { width:259.54pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     631   10.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENT CONCERNING the United Kingdom   The European Court of Human Rights has today notified in writing the following Chamber judgment, which is not final: [1]   Section 4   Waite v. the United Kingdom (no. 53236/99)   Violation Article 5 §§ 4 and 5     No violation Articles 5 § 1 and 14 Neville Charles Waite, a United Kingdom national, was born in 1964 and lives in London.   Aged 16, he was convicted of the murder of his grandmother on 12 October 1981. At his trial, he had unsuccessfully raised the defence of diminished responsibility, as he had been addicted to glue sniffing for several years. He was sentenced to detention at Her Majesty’s Pleasure under section 53(1) of the Children and Young Persons Act 1933. His tariff (the portion of sentence representing punishment and deterrence) was set at 10 years.     On 26 January 1994, aged 29, he was released on life licence.   On 21 July 1997, the Secretary of State accepted a recommendation from the Parole Board to revoke the applicant’s licence and recall him to prison on the grounds that he had been misusing illegal drugs, having a sexual relationship with a minor, failing to maintain contact with his supervising officer and that he had attempted suicide. On 5 September 1997, the Parole Board considered the applicant’s case, without holding an oral hearing, and, on 14 October 1997, upheld the decision to revoke his licence.   In July 1998, the applicant received his parole dossier. On seeking legal advice prior to his Parole Board review, the applicant was advised that the Prison Service had failed to apply the procedure applicable to his recall under the interim arrangements implemented pending the entry into force of the Crime Sentences Act 1997. Under those administrative provisions, he should have received an oral hearing. On 30 September 1998, the applicant applied for judicial review. Leave was granted on 6 October 1998. An oral hearing was held by the Parole Board on 27 October 1998, at which the applicant was present and represented. He was released on 17 November 1998.   On 21 December 1999, the applicant was again recalled to prison, following his arrest for possession of a Class A drug (ecstasy) and a Class B drug (cannabis). His recall was recommended by the Parole Board. He is currently being detained in an open prison.   The applicant alleged that he had no oral hearing when he was recalled to prison, that the grounds of his recall were discriminatory, not connected with the purpose of his sentence and that he had no opportunity to obtain compensation or any remedy. He relied on Articles 5 §§ 1, 4 and 5 (right to liberty and security), 13 (right to an effective remedy) and 14 (prohibition of discrimination) of the European Convention on Human Rights.   Concerning Article 5 § 4 (right to have lawfulness of detention decided speedily by a court), the European Court of Human Rights noted that, while the Parole Board considered the applicant’s written representations concerning his recall on 5 September 1997, no oral hearing took place and the applicant had no opportunity to examine or cross-examine witnesses relevant to the allegations that his conduct posed a risk to the public. The applicant should in fact have received such a hearing under the administrative provisions which applied at that time. As the applicant’s personality and level of maturity and reliability were of importance in deciding on his dangerousness, Article 5 § 4 required an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.   The Court therefore held, unanimously, that there had been a violation of Article 5 § 4.   The Court further held, unanimously, that, as there was no possibility of obtaining compensation at the time concerning the breach of Article 5 § 4, there had also been a violation of Article 5 § 5 (right to compensation).   Concerning Article 5 § 1, the Court recalled that the applicant’s conduct prior to his recall was causing concern to his supervising probation officer on a number of grounds. The Court was satisfied that the decision to recall was, to a decisive degree, influenced by the applicant’s arrest for drugs possession and his admission that his drugs habit was beyond his control. This, combined with his failure to co-operate with his probation officer, provided rounds for concluding that he was no longer reliable and that his conduct was unpredictable. Having regard, in particular, to the fact that the offence of murder in 1981 was committed against a background of substance abuse, the Court found sufficient connection between the recall and the original sentence for murder in 1981 to justify his recall. The Court held, unanimously, that there had been no violation of Article 5 § 1.   Regarding Article 14, the Court noted that the decision for the applicant’s recall included reference to his relationship with a minor, who was male. At that time, the age of consent for male consensual adult homosexual relations was set at 18, while the age of consent for heterosexual relations was 16. The Court did not consider that it must necessarily be assumed that it would not have been of concern to the probation service if the applicant, a prisoner on life licence, had become involved in a relationship with a girl of 16 years. In their assessment of any risk of dangerousness to the public of a person convicted of murder, it would have been inevitable that his relationships would have come under scrutiny, whether contrary to criminal law or not. Furthermore the relationship was known about for some months without any action being taken. It appeared that it was the applicant’s arrest for drugs offences and his failure to keep in contact with his probation officer which gave rise to serious alarm. While therefore the relationship was referred to in the reports, the Court did not find that it could be considered as playing a determinative role in his recall to prison. It had therefore not been established that the applicant had been treated differently in the enjoyment of his rights on the grounds of sexual orientation. The Court therefore held, unanimously, that there had been no violation of Article 14.   The Court also found that no separate issue arose under Article 13.   It awarded the applicant EUR 2,500 for non-pecuniary damage and EUR 8,000 for costs and expenses. (The judgment is available only in English.)   ***   This summary by the Registry does not bind the Court. The full text of the Court’s judgment is accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.