EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24888/94

V.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 4 December 1998)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-19) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-14) 1

C. The present Report

(paras. 15-19)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 20-75)              3

A. Particular circumstances of the case

(paras. 20-36)              3

B. Evidence before the Commission

(paras. 37-45)              6

C. Relevant domestic law and practice

(paras. 46-71)              9

D. Relevant international texts

(paras. 72-75)              15

III. OPINION OF THE COMMISSION

(paras. 76-152) 18

A. Complaints declared admissible

(para. 76) 18

B. Points at issue

(para. 77) 18

C. As regards the trial of the applicant

(paras. 78-113) 19

Article 3 of the Convention

(paras. 81-96)              19

CONCLUSION

(para. 97) 23

Article 6 of the Convention

(paras. 98-107) 23

CONCLUSION

(para. 108) 25

Article 14 of the Convention

(paras. 109-112) 25

CONCLUSION

(para. 113) 26

D. As regards the sentence imposed

  (paras. 114-128) 26

Article 3 of the Convention

(paras. 115-120) 26

CONCLUSION

(para. 121) 28

Article 5 of the Convention

(paras. 121-127) 28

CONCLUSION

(para. 128) 29

E. As regards the tariff and review of detention

(paras. 129-145) 29

Article 6 of the Convention

(paras. 130-136) 29

CONCLUSION

(para. 137) 32

Article 5 para. 4 of the Convention

(paras. 138-144) 32

CONCLUSION

(para. 145) 34

F. Recapitulation

(paras. 146-152) 34

CONCURRING OPINION OF MR N. BRATZA 35

DISSENTING OPINION OF MR. L. LOUCAIDES              38

PARTLY DISSENTING OPINION OF MR S. TRECHSEL 40

PARTLY DISSENTING OPINION OF MR E. BUSUTTIL              41

PARTLY DISSENTING OPINION OF MR M.P. PELLONPÄÄ 42

PARTLY DISSENTING OPINION OF MR B. CONFORTI

JOINED BY MR I. BÉKÉS 43

APPENDIX: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . .44

  I. INTRODUCTION

A. The application

2 The applicant, born in 1982, is a British citizen currently serving a sentence of detention during Her Majesty's pleasure in a secure unit run by a local authority. He is represented before the Commission by John Howell & Co, solicitors, practising in Sheffield.

3 The application is directed against the United Kingdom. The respondent Government are represented by Mr Martin Eaton, as Agent, from the Foreign and Commonwealth Office.

4 The case concerns the complaints made by the applicant in respect of his trial and sentence to detention during Her Majesty's pleasure for the murder of a two year old boy. They raise issues principally under Articles 3, 5 paras. 1 and 4 and 6 para. 1 of the Convention in relation to the procedure adopted at the trial which was held in public in an adult court, the nature of the sentence imposed, the role played by the Secretary of State in fixing the punitive or "tariff" part of their sentences and the availability of review procedures concerning the continuation of their detention.

B. The proceedings

5 The application was introduced on 20 May 1994 and registered on  11 August 1994.

6 On 28 November 1994, the Commission decided to communicate the application to the Government inviting them to submit observations on the admissibility and merits.

7 On 29 March 1995, after one extensions in the time-limit, the Government submitted their observations and on 2 August 1995, the applicant submitted his observations in reply, also after two extensions in the time-limit.

8 On 19 January 1996, the Commission decided to invite the parties to make submissions at an oral hearing at Strasbourg, to be held jointly with Application No. 24724/94 T. v. the United Kingdom. The hearing was fixed for 5 September 1996. It was adjourned, with the agreement of the parties, to await the judgment of the House of Lords in the domestic proceedings. Following the judgment on 12 June 1997, the hearing was fixed for 6 March 1998.

9 On 16 February 1998, the Government submitted a written brief for the hearing. On 27 February 1998, the applicant submitted a written brief.

10 On 6 March 1998, at the hearing held in Strasbourg, the parties were represented as follows. The Government were represented by their Agent, Mr I. Christie, Mr D. Pannick QC, and Mr M. Shaw as counsel and Ms C. Price and Mr T. Morris, as advisers from the Home Office. The applicant was represented by Mr E. FitzGerald Q.C. and Mr B. Emmerson , as counsel, Mr J. Dickinson, solicitor and Mr T. Loflin , attorney at law.

11 On 6 March 1998, the Commission declared the application admissible.

12 The parties were then invited to submit any additional observations on the merits of the application.

13 On 23 April 1998, the Government submitted further observations.

14 After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention , placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.  In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.

C. The present Report

15 The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

M.P. PELLONPÄÄ

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

A. PERENIČ

K. HERNDL

E. BIELŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

Mr A. ARABADJIEV

16 The text of the Report was adopted by the Commission on 4 December 1998 and is now transmitted to the Committee of Ministers in accordance with former Article 31 para. 2 of the Convention.

17 The purpose of the Report, pursuant to former Article 31 para. 1 of the Convention, is

1)  to establish the facts, and

2)  to state an opinion as to whether the facts found disclose

    a breach by the State concerned of its obligations under

    the Convention.

18 The Commission's decision on the admissibility of the application is annexed hereto.

19 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. Particular circumstances of the case

20 The applicant's childhood was somewhat troubled as a result of his parents' separation and the mild retardation suffered by his two other siblings.  There was a history of some health problems and of "a moderate attention deficit disorder". Dr. Bentovim , who examined him at the time of trial and subsequently, noted that "he showed evidence of immaturity, behaving in many ways like a younger child emotionally".

21 On 24 November 1993, the applicant, aged 11, was convicted of murder and sentenced to detention during Her Majesty's pleasure.

22 The conviction related to an offence of murder committed by the applicant when he was ten years old in the company of another ten year old boy T.. The offence involved the killing of a two year old boy whom the two offenders had abducted from a shopping precinct and who was then battered to death and left on a railway line to be run over.

23 The trial of the applicant and T. took place in public in an adult Crown Court, preceded and accompanied by massive national publicity. Throughout the criminal proceedings, the arrival of applicant and T. at court was greeted by a hostile crowd. On occasion, attempts were made to attack the vehicles bringing them to court. In one incident, members of the public banged on the side of the van transporting the applicant. The names of the two boys were ordered not to be disclosed during the proceedings but the judge ordered that the names be made public at the end of the trial. Pictures of the boys were shown on television and in the press.

25 During the trial, the prosecution presented evidence for the purpose of establishing that the two defendants were criminally responsible for their actions in that they knew what they were doing was wrong. The court heard evidence from Dr Susan Bailey, a consultant psychiatrist who had written a report on the applicant on behalf of the Crown. Dr Bailey gave evidence that the applicant presented as a child of average intelligence, and would have been able in February 1993 to distinguish between right and wrong. He would have known that it was wrong to take a child from his mother, injure him and leave him on a railway line. She had seen the applicant on a number of occasions. On each occasion, he had cried inconsolably and shown signs of distress.  He was not able to talk about the events in issue in any useful way. Evidence was also heard from Mrs S., the headmistress at the school attended by T. and the applicant. She stated that from the age of 4 and 5, children were aware that it was wrong to strike another child with a weapon. She stated that T. and the applicant would have been aware that what they were doing was wrong. Another teacher, Mr. D., gave evidence to the same effect.

26 Evidence was also given by persons who had witnessed T. and the applicant in the shopping centre from which the two year old boy was taken and who had seen the three boys at various points between the shopping centre and the vicinity of the railway line, where the body was later found. The tapes of the interviews of the police with T. and the applicant were replayed in court. Neither the applicant nor T. gave evidence in court.

29 After conviction, the trial judge recommended that a period of eight years be served by the boys to satisfy the requirements of retribution and deterrence (the "tariff"). He commented that he could not determine the boys' relative culpability. He stated:

"Very great care will have to be taken before either Defendant is allowed out into the general community. Much psychotherapeutic, psychological and educational investigation and assistance will be required.

Not only must they be full rehabilitated and no longer a danger to others but there is a very real risk of revenge attacks upon them by others.

...

If the Defendants had been adults I would have said that the actual length of deterrence necessary to meet the requirements of retribution and general deterrence should have been 18 years.

However these two boys came from homes and families with great social and emotional deprivation. They grew up in an atmosphere of matrimonial breakdown where they were exposed to, saw, heard, or suffered abuse, drunkenness and violence. I have no doubt that both boys saw video films frequently showing violent and aberrant activities.

In my judgment the appropriate length of detention necessary to meet the requirement of retribution and general deterrence for the murder, taking into account all its appalling circumstances and the age of the Defendants when it was committed is 8 years ... 8 years is "very very many years" for a ten or eleven year old. They are now children. In 8 years time they will be young men."

31 The applicant made no appeal to the Court of Appeal against his conviction.

32 By letter dated 16 June 1994, the Secretary of State informed the applicant that the family of the deceased child had submitted a petition signed by 278,300 people urging him to take account of their belief that the boys should never be released, accompanied by 4,400 letters of support from the public; that a Member of Parliament had submitted a petition signed by 5,900 people calling for a minimum of 25 years to be served; that 21,281 coupons from the Sun newspaper supporting a whole life tariff and a further 1,357 letters and small petitions had been received of which 1,113 wanted a higher tariff than the judicial recommendations. His solicitors were given an opportunity to submit further representations to the Secretary of State.

33 By letter dated 22 July 1994, the Secretary of State informed the applicant that he should serve a period of fifteen years in respect of retribution and deterrence. The letter stated inter alia :

"In making his decision, the Secretary of State had regard to the circumstances of the offence, the  recommendations received from the judiciary, the representations made on your behalf and the extent to which this case could be compared with other cases. He also has regard to the public concern about this case, which was evidenced by the petitions and other correspondence the substance of which were disclosed to your solicitors by our letter of 16 June 1994, and to the need to maintain public confidence in the system of criminal justice.

The Secretary of State takes fully into account the fact that you were only 10 years old when the offence was committed. He further acknowledges that a much lesser tariff should apply than in the case of an adult.

The Secretary of State notes the representations which were made on your behalf regarding the relative culpability of yourself and your co-defendant.  The Secretary of State notes that the trial judge was unable to determine this. The Secretary of State has reached the same conclusion.

The recommendations made by the trial judge and the Lord Chief Justice were that the appropriate tariff should be 8 years, and 10 years respectively. The trial judge added that if the defendants had been adults then the appropriate tariff would have been 18 years. The Secretary of State has had regard to these views. He takes the view that this was an exceptionally cruel and sadistic offence against a very young and defenceless victim committed over a period of several hours. The Secretary of State believes that if the offence had been committed by an adult then the appropriate tariff would have been in the region of 25 years and not 18 years as suggested by the trial judge.

For these reasons, and bearing in mind your age when the offence was committed, the Secretary of State has decided to fix a tariff of 15 years in your case. The Secretary of State is satisfied that such a tariff is consistent with the tariffs fixed in other cases.

The Secretary of State is prepared to consider any fresh representations which you or your representatives might wish to make about the length of the tariff and, in the light of such fresh representations, to reduce the tariff if appropriate."

34 The applicant instituted judicial review proceedings challenging, inter alia , the tariff which has been set by the Secretary of State as being disproportionately long and fixed without due regard to the needs of rehabilitation. Leave was granted on 7 November 1994.

35 On 2 May 1996, the Divisional Court upheld part of the applicant's claims. On 30 July 1996, the Court of Appeal dismissed the appeal of the Secretary of State. On 12 June 1997, the House of Lords by a majority dismissed the Secretary of State's appeal and allowed the applicant's cross-appeal. A majority of the House of Lords found that it was unlawful for the Secretary of State to adopt a policy, in the context of applying the tariff system, which, even in exceptional circumstances, treated as irrelevant the progress and development of a child who was detained during Her Majesty's pleasure. A majority of the House of Lords also held that in fixing a tariff the Secretary of State was exercising a power equivalent to a judge's sentencing power and, like a sentencing judge, he was required to remain detached from the pressure of public opinion. Since the Secretary of State had misdirected himself in giving weight to the public protests about the level of the applicant's tariff and had acted in a procedurally unfair way, his reasons had been rendered unlawful. The tariff set by the Secretary of State was accordingly quashed.

36 On 10 November 1997, the Secretary of State informed Parliament that, in light of the House of Lords' judgment, he had adopted a new policy in relation to young offenders convicted of murder and sentenced to detention during Her Majesty's pleasure pursuant to which, inter alia , the tariff initially set would be kept under review by the Secretary of State in light of the progress and development of the offender.  The Secretary of State invited the applicant's representatives to make representations to him with regard to the fixing of a fresh tariff. At the time of the adoption of the report, no decision had been taken in this respect.

B. Evidence before the Commission

37 The parties have submitted various documents to the Commission, including the orders made by the trial judge during and at the conclusion of the trial, transcipts of parts of the trial proceedings, including the judge's summing up, materials relating to the detention of child offenders and the relevant materials relating to the judicial review proceedings and the fixing of the tariff. There are also a number of medical and psychiatric reports, including reports by the consultant psychiatrist Dr Susan Bailey, who interviewed the applicant before the trial and has been involved in the team providing him with psychiatric treatment in detention (see summaries below).

Reports of Dr Bentovim dated 23 September and 11 October 1993

38 Dr Bentovim , of Great Ormond Street Hospital for Children,  interviewed the applicant and his parents prior to the trial. He referred in these reports, inter alia , to the applicant showing post-traumatic effects and extreme distress and guilt, with fears of punishment and terrible retribution. The applicant found it very hard and distressing to think or talk about events and it was not possible to ascertain many aspects. Whatever happened, he was likely to need specific residential care in a therapeutic context.

Report of Dr Bentovim dated 31 January 1995

40 As regarded the tariff imposed, the applicant had been distraught and showed distress when he was told of the 8 and 10 year recommendations. When he was informed that 15 years had been fixed, he was devastated. He made comments that he would never be let out and had a preoccupation that he was like Myra Hindley . He felt that his life was no longer worth living and there was no point going on.

41 When the trial was mentioned, the applicant indicated his sense of shock when he saw the public let in and his considerable distress when his name and photograph were published. He was terrified of being looked at in court. Most of the time, he was not able to take part in the proceedings. For a great deal of the time, he was counting in his head or making shapes with his shoes, and he could not pay attention or process the whole proceedings. He did focus when he heard the interviews being played in court and he recalled crying. Dr Bentovim commented that in his view, because of his immaturity and age, the applicant did not have the capacity to fully take in the process of trial except for the major actions for which he was responsible. Although the applicant was chronologically over the age of 10 at the time of the action, Dr Bentovim was in no doubt that he was less mature as far as psychological or emotional age was concerned. His capacity to understand the court process was very limited. There was ongoing evidence of continuing post traumatic effects but there was evidence that he was making excellent response to therapeutic care.

Report of Dr Susan Bailey (Adolescent Forensic Service) of 11 December 1996

42 This report, compiled following an individual session, noted, inter alia , that the applicant experienced fortnightly flashbacks (this had reduced) causing him distress and that he held a sense of his own wasted life and placed blame for this on himself. He found it difficult to concentrate on any task when in his bedroom at night because thoughts in particular of the pre-trial and trial came back, in particular his weeks in the dock and his inability to recollect while at the same time wanting to recollect. He had a sense of numbness about his trial but felt physically sick. He described his inability to experience feelings  as fully as before arrest and trial. In part this related to being locked up, but he stated that even if he had not been locked up he would have lost his capacity to experience feelings in the same way. Dr Bailey suspected that the applicant viewed this as his real punishment.

Report of Dr Susan Bailey dated 17 July 1997

43 It was reported that the staff had completed the "offence work" but because of the singular nature of the events surrounding the case, the applicant was experiencing a recurrence of past themes, relating to aspects of the offence. This happened particularly when he was aware that he was being made the focus of public, legal and political issues. He had made positive progress beyond what might have been expected in the setting of the current legal process which applied to juvenile homicides. She, and the therapist, who worked with the applicant, had become increasingly aware, and were now entirely convinced, of the destructive nature of this process.  They were now entering a phase of treatment which was aimed at helping the applicant to come to terms with the events which would impact on him for the rest of his life.

Report of Dr Susan Bailey dated 4 November 1997

44 As regards the pre-trial and trial period, it was noted that until the trial the events during the offence were with the applicant 98% of the time and especially every night during the trial. It took him 12 months to get over the trial itself. He still thought of it every night. He had been most scared when in the magistrates' court on the first occasion. After the first three days at the Crown Court, he was alright because he played with his hands and stopped listening. He had to stop listening because they played the police interviews with him and T. in front of everyone as if they were shouting it out. The press were laughing at him and he could tell from the faces of the jury that they would find him guilty. He still did not understand why the trial had been so long.

45 It was found that the applicant had worked through the essential stages of coming to terms with murder. He had moved through the normal sequence of psychological reactions: denial-disbelief, avoidance, sense of loss, experience of grief, ownership for his part in the murder, guilt (emerging from the process of re-enactment, the latter spanning a period of two difficult years), shame and remorse which was ongoing and would remain for ever. It was commented that the very unusual nature of the "public" and legal process as it has been applied to this child and adolescent had presented therapists and carers with the most difficult and at times insurmountable challenge. In particular, the unprecedented, continual and continuing impingement of the legal process has had a potentially devastating effect on his ongoing emotional and psychological development. It was all the more remarkable that, despite the ongoing PTSD caused by the "process of justice", the applicant had been able to make as much, if not more, clinical progress, than any other young child murderers with whom the team had worked successfully to a safe resolution, risk reduction and quality of life.

C. Relevant domestic law and practice

1. Age of criminal responsibility

46 Pursuant to section 50 of the Children and Young Persons Act 1933 (as amended in 1963), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of an offence. A child between the age of ten and fourteen is subject to a presumption that he or she is doli incapax : this presumption may be rebutted by the prosecution proving beyond a reasonable doubt that the child knew that the act was wrong as distinct from merely naughty or childish mischief (In Re C. (a minor) ( A.P. ) 16 March 1995 House of Lords).

2. Mode of trial

47 Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under 18 years must be tried summarily in the magistrates' court unless charged with homicide, manslaughter or other offence punishable if committed by an adult with fourteen or more years' imprisonment.

3. Ability to comprehend the proceedings

"It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant.. the basis of this principle is not simply that there should be corporeal presence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and if so, upon what matters relevant to the case against him."

49 In that case, the Privy Council quashed the conviction of the defendant, an uneducated peasant from Kerala in Southern India who had been sentenced to death for murder after a trial in Mauritius conducted in a language he did not understand and where the evidence was not translated for him by an interpreter.

4. Detention during Her Majesty's pleasure

Background

50 The notion of detention during Her Majesty's pleasure had its origins in an Act of 1800 for "the safe custody of insane persons charged with offences".  Section 1 provided that defendants acquitted of a charge of murder, treason or felony on the grounds of insanity at the time of the offence were to be detained in "strict custody until His Majesty's pleasure shall be known" and described their custody as being "during His pleasure".

51 In 1908, detention during His Majesty's pleasure was introduced in respect of offenders aged ten to sixteen and then extended to cover those under eighteen in 1933. The provision in force at present is Section 53 (1) of the Children and Young Persons Act 1933 (as amended) which provides:

"A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder, be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her Majesty's pleasure and, if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct."

52 At the age of 18, the child sentenced to detention during Her Majesty's pleasure becomes liable to be transferred to a Young Offender's Institution and thereafter, at the age of 21, to detention on the same basis and in the same institution as an adult sentenced to life imprisonment for murder.

Categorisation of detention "during Her Majesty's pleasure"

53 Mandatory life sentences are imposed in respect of the offence of murder committed by adults (Murder (Abolition of Death Penalty) Act 1967). Persons convicted of certain violent or sexual offences, eg . manslaughter, rape, or robbery, may be sentenced to life imprisonment at the discretion of the trial judge. The principles underlying the passing of a discretionary life sentence are:

i. that the offence is grave and

ii. that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when that danger will subside.

54 The sentence of "custody for life" is imposed where the offence of murder is committed by an individual between the ages of 18 and 21 (section 8 (1) of the Criminal Justice Act 1982).

"At the time of sentencing, the detention orders under section 53 were mandatory.  It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder.  But the sentence itself is closer in substance to the discretionary sentence of which part is punitive (retribution and deterrence) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied.  The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period: see R. v. Secretary of State, ex.p . Doody & others [1993] Q.B. 157 and Wynne v. UK (E.C.H.R. 1st December 1992).  The order for detention under section 53 is by its terms both discretionary and indeterminate: it provides for detention 'during Her Majesty's pleasure'. (Section 53(4) which expressly authorised the Secretary of State to discharge the detainee on licence 'at any time' was repealed by the Parole Board provisions of the Criminal Justice Act 1967, but this does not, in my judgment, alter the nature of the sentence in any material respect.)  I would decide the present case on the narrow ground that, notwithstanding Home Office and Parole Board practice, the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether Wilson rather than Payne governs his case."

56 The Court accordingly held that the applicant in the case, detained during Her Majesty's pleasure, should be afforded the same opportunity, as would be given a discretionary life prisoner, to see the material before the Parole Board when it decided upon whether he should be released after his recall to prison on revocation of his licence .

Release on licence and revocation of licences

58 On 1 October 1992, Part II of the 1991 Act came into force.

59 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).

60 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.

61 For the purposes of the 1991 Act, persons detained during Her Majesty's pleasure or serving mandatory sentences of life imprisonment or custody for life are not regarded as discretionary life prisoners. In relation to these prisoners, the Secretary of State continues to decide the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view (R. v. Secretary of State for the Home Department, ex parte Doody [1993] 3 AER 92).

62 As regards release on licence , these categories of prisoners are subject to section 35 of the 1991 Act, which provides as relevant:

"(2) If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner."

63 Section 39 provides as relevant:

"(1) If recommended to do so by the Board in the case of a long term or life prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison...

(3) A person recalled to prison under subsection (1) or (2) above

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Board -

(a) the case of a person recalled under subsection (1) above who makes representations under sub-section (3) above...

(5) Where on a reference under subsection (4) above the Board -

(a) directs in the case of a discretionary life prisoner;

or

(b) recommends in the case of any other person,

his immediate release on licence under this section, the Secretary of State shall give effect to the direction or recommendation."

64 On 27 July 1993, the Secretary of State made a statement of policy in relation to mandatory life prisoners, stating, inter alia , that before any such prisoner is released on licence he

"will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice".

Fixing of the tariff for sentences of detention during Her Majesty's pleasure

66 Lord Steyn held:

"The starting point must to be inquire into the nature of the power to fix a tariff which the Home Secretary exercises. Writing on behalf of the Home Secretary the Home Office explained that: 'The Home Secretary must ensure that, at all times, he acts with the same dispassionate fairness as a sentencing judge.' The comparison between the position of the Home Secretary, when he fixes a tariff representing the punitive element of the sentence, and the position of the sentencing judge is correct. In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed a discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power."

67 Lord Hope held:

"But the imposition of a tariff, which is intended to fix the minimum period in custody is, in itself, the imposition of a form of punishment. This has, as Lord Mustill observed in R.v . Secretary of State for the Home Department, ex parte Doody at p. 557A-B, the characteristics of an orthodox judicial exercise, which is directed to the circumstances of the offence and those of the offender and to what, having regard to the requirements of retribution and  deterrence, is the appropriate minimum period to be spent in custody. The judge, when advising the Secretary of State about the tariff, must and does confine his attention to these matters...

"If the Secretary of State wishes to fix a tariff for the case - in order to replace the views of the judiciary with a view of his own about the length of the minimum period - he must be careful to abide by the same rules;...

68 Lord Hope also commented on the imposition of a tariff on a child offender in the same way as on an adult prisoner:             

"A policy which ignores at any stage the child's development and progress while in custody as a factor relevant to his eventual release date is an unlawful policy. The practice of fixing the penal element as applied to adult mandatory life prisoners, which has no regard to the development and progress of the prisoner during this period, cannot be reconciled with the requirement to keep the protection and welfare of the child under review throughout the period while he is in custody."

"... if the Secretary of State implements a policy of fixing a penal element of the sentence of a mandatory prisoner pursuant to his discretionary power under section 35, he is to this extent exercising a function which is closely analogous to a sentencing function with the effect that, when doing so, he is under a duty to act under the same restraints as a judge will act when exercising the same function. In particular, should he take into account public clamour directed towards the decision in the particular case which he has under consideration, he will be having regard to an irrelevant consideration which will render the exercise of his discretion  unlawful.

In so holding I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment...."

Recent developments

70 On 1 October 1997, section 28 of the Crime (Sentences) Act 1997 was brought into force in order to implement the judgment of the Court in the Hussain and Singh cases (Eur. Court HR, Hussain v. United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 252 and Singh v. United Kingdom judgment of 21 February 1996, Reports 1996-I, p. 280). The section provides that, after the tariff period has expired, it shall be for the Parole Board (and not, as previously, for the Secretary of State) to decide whether it is safe to release on life licence an offender serving a sentence of detention during Her Majesty's pleasure for an offence of murder committed before that offender reaches the age of 18.

71 On 10 November 1997, the Secretary of State announced that, in light of the House of Lords decision of 12 June 1997 in the applicant's case, he would adopt the following policy in respect of persons convicted of murder and detained during Her Majesty's pleasure:

"I shall continue to seek the advice of the trial judge and that of the Lord Chief Justice in deciding what punishment is required in any case of a person convicted under section 53(1) of the Children and Young Persons Act 1933. I shall then set an initial tariff with that advice, and the offender's personal circumstances, in mind; I shall continue to invite representations on the prisoner's behalf and give reasons for decisions.

Officials in my Department will receive annual reports on the progress and development of young people sentenced under section 53(1) whose initial tariff has yet to expire. Where there appears to be a case for considering a reduction in tariff, that will be brought to the attention of Ministers.

When half of the initial tariff period has expired, I, or a Minister acting on my behalf, will consider a report on the prisoner's progress and development, and invite representations on the question of tariff, with a view to determining whether the tariff period originally set is still appropriate...."

D. Relevant international texts

The United Nations Convention on the Rights of the Child

"1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be  treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the reintegration and the child's assuming a constructive role in society.

2. To this end... the States Parties shall, in particular, ensure that:

...

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

...

vii. To have his or her privacy fully respected at all stages of the proceedings

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions, specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:

(a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal laws;

(b) whenever appropriate and desirable, measures for the dealing with such children without resorting to judicial proceedings, providing that human rights are fully respected."

"(a) ... Neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below 18 years of age.

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;"

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules)

"4. Age of criminal responsibility

4.1 In those legal systems recognizing the concept of the age of criminal responsibility for juveniles,the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity.

Commentary

The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour . If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of criminal responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc). Efforts should therefore be made to agree on a reasonable lowest age limit that is applicable.

...

8. Protection of privacy

8.1 The juvenile's privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling .

8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.

...

17. Guiding principles in adjudication and disposition

17.1 The disposition of the competent authorities shall be guided by the following principles:

(a) The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and the needs of the child as well as to the needs of the society;

(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;

...

(d) The well being of the juvenile shall be the guiding factor in the consideration of her or his case."

Commentary

"...Rule 17(1)b implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and future of the young person."

Committee on the Rights of the Child: Consideration of reports submitted by States Parties under Article 44 of the Convention

75 In its concluding observations in respect of the United Kingdom (CRC/C/15/add.34) dated 15 February 1995, the Committee set up by the United Nations to monitor compliance with the Convention on the Rights of the Child, stated, inter alia :

"35. The Committee recommends that law reform be pursued to ensure that the system of the administration of juvenile justice is child-oriented. ...

36. More specifically, the Committee recommends that serious consideration be given to raising the age of criminal responsibility throughout the areas of the United Kingdom. ..."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

76 The Commission has declared admissible the applicant's complaints that:

- the circumstances in which he was tried, and was held criminally responsible, constituted inhuman and degrading treatment or punishment;

- he was deprived of a fair trial by the procedures adopted and the attendant circumstances;

- he was discriminated against in respect of the trial process applicable to him at his age;

- the sentence imposed on him constituted inhuman and degrading treatment or punishment;

- he was deprived of his liberty in an arbitrary manner;

- his sentence was not fixed by an independent and impartial tribunal in a judicial procedure since his tariff was fixed by the Secretary of State;

- there has been no judicial review of the lawfulness of his continued detention.             

B. Points at issue

77. The issues to be determined in the present case are:

- whether there has been a violation of Article 3 in respect of his trial;

- whether there has been a violation of Article 6 para. 1 in respect of his trial;

- whether there has been a violation of Article 14 in conjunction with the above provisions in respect of his trial;

- whether there has been a violation of Article 3 in respect of the sentence imposed on him;

- whether there has been a violation of Article 5 para. 1 in respect of the sentence imposed on him;

- whether there has been a violation of Article 6 para. 1 in respect of the tariff-fixing procedure;

- whether there has been a violation of Article 5 para. 4 in respect of the alleged lack of review of the lawfulness of continued detention.

C.    As regards the applicant's trial

78. The applicant has raised complaints concerning the procedure by which he was required to stand trial as a child of eleven in respect of a crime committed at the age of ten. He invokes Articles 3, 6 and 14 of the Convention.

Article 3 of the Convention

81. Article 3 of the Convention provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

82. The applicant submits that he suffered inhuman or degrading treatment  in that he was exposed to full criminal liability for an offence committed at an age when he clearly lacked full understanding of his act and the full maturity and emotional control of an adult. The process was rendered inhuman by virtue of the fact that he was tried in public in an adult criminal court and his name was revealed to the world. The applicant submits that the trial process caused trauma and psychiatric damage both at the time and subsequently.

83. The applicant submits that the age of criminal responsibility, though it varies from country to country, is subject to international standards and universal principles. He refers to Rule 4 of the Beijing Rules and its commentary (see para. 74) and states that by those standards a child aged ten cannot be considered as fully responsible for his actions. While domestic law requires that the prosecution must prove that a child aged 10 to 14 knows the difference between right and wrong, this is a purely intellectual test and takes no account of the limited emotional and psychological development of such a child. He argues that, as in the case of a mentally handicapped adult he required protection from the full criminal liability and process.

84. The applicant argues that the process of an accusatorial, public trial in adult court was an ordeal, lasting three weeks during which he was required to sit in a raised dock  in the centre of the courtroom in the full view of the national and international press and the public. There was the full formality of an adult trial, with twelve adult jurors, a judge, court clerk and lawyers in formal court attire and wigs. He refers also to the attacks on the prison van from the public. This whole procedure inflicted on him an elaborate and prolonged process of public humiliation. The judge's decision to release his name after the trial led to further trauma and an on-going process of intimidation and persecution. He refers to international texts which indicate that it is of crucial importance to safeguard the private lives of children tried in court.

87. The Commission recalls that the case-law of the Convention organs establishes that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the age of the applicant, the duration of the treatment and its physical or mental effects (see eg . Eur. Court H.R., Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, para. 162). Further, in considering whether a punishment or treatment is "degrading" within the meaning of Article 3, the Court has regard to whether its object is to humiliate and debase the person concerned and whether it adversely affected his or her personality, in a manner incompatible with Article 3, by, for example, humiliating them in their own eyes or the eyes of others (see eg . Eur. Court HR, Raninen v. Finland judgment of 16 December 1997, to cited in Reports 1997, para. 55).

88. The Commission re-iterates that Article 3 prohibits inhuman and degrading treatment in absolute terms, irrespective of the victim's conduct ( eg . Eur. Court HR, Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V p. 1831, at p. 1855, paras. 79-80). The Commission understands the shock and revulsion provoked by the crime committed in this case. However, its examination of this case must have regard only to those elements relevant to the consideration of whether the treatment of the applicant was compatible with the standards imposed by Article 3, which enshrine one of the most fundamental values of  democratic society.

89. The Commission observes that the applicant relies on the cumulative effect of a number of features deriving from the imposition of criminal responsibility and the public, adult and accusatorial nature of the proceedings.

90. It finds, first of all, that there is no commonly accepted minimum age for the imposition of criminal responsibility. While many countries have set a higher age-limit than the United Kingdom, there are countries with the same or lower limit. The United Nations texts have regard to the differing considerations that can apply and recommend the fixing of an age consonant with children's emotional, mental and intellectual development, without specifying what that could be. The Commission notes that the test applied in United Kingdom law for children such as the applicant, aged between 10 and 14, is whether they knew what they did was wrong. As the applicant has argued, the Commission considers that this is an intellectual test which could in theory render intelligent children as low as the age of five responsible under the criminal law, which would appear to contravene the spirit of the international guidelines.

91. The Commission has had regard to the underlying and fundamental principle in international texts concerning children's rights and in the case-law of the Convention, that law should protect children's welfare and afford them the protection necessitated by their vulnerability and lack of maturity. This is reflected in the domestic law of Contracting States, which make provisions for social protection. It is to be noted that they also impose a different legal regime as regards civil legal capacities, ages of consent for marriage and consensual sexual relations, eligibility for voting etc, in which the intellectual skills of any particular child, or its ability to carry out particular acts, are generally irrelevant.

92. The Commission observes that the age-limit of 10 imposed in this case must be regarded as relatively low. However, the Commission considers that the imposition of criminal responsibility cannot of itself disclose treatment contrary to Article 3 of the Convention. The question is whether the consequences of that attribution inflicted treatment incompatible with Article 3.

94. The Commission accepts the Government's submissions that there was no intentional element of inflicting distress or humiliation on the applicant from the above measures. It also gives weight to the steps taken by the authorities to mitigate the proceedings and make allowance for the young age of the applicant, in particular, by cutting short the court sittings.

95. There is some evidence before the Commission as to the psychological effect that the proceedings had on this applicant. The reports of the doctors who examined the applicant before and after the trial indicate that he was suffering post-traumatic stress disorder symptoms both at the time and since. The process of trial, in particular its length and public nature, appear to have had a significant effect. The doctor currently supervising the applicant's treatment expresses in strong terms what she considers to be the destructive nature of this process and the obstacles it posed to rehabilitative work.  The Commission would note however that there is no doubt that a significant part of the distress suffered by the applicant is attributable simply to the fact that he committed a horrific crime and was being brought to face the consequences. It is accordingly not possible to state that the trial process caused any particular psychological condition or the exact extent to which it augmented the already existing distress. The Commission would observe that since the trial the applicant appears to have made remarkable progress under psychiatric supervision.

96. In these circumstances, the Commission is not persuaded that the trial procedures inflicted treatment of such severity as to fall within the scope of Article 3 of the Convention.

CONCLUSION

Article 6 of the Convention

"1. 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.  Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

99. The applicant submits that he was unable to participate effectively in the proceedings. While he might have had the intellectual capacity to understand some elements, he lacked the emotional strength to follow the trial or to take decisions in his own best interests. This was due partly to his own state of trauma and partly to the conditions in which he was put on trial. He was unable to give evidence on his own behalf. The proceedings did not comply with the Beijing rules since they were not conducted in a spirit of understanding, which allow the juvenile to participate and express herself or himself freely. It is submitted that the concept of fair trial in respect of children requires a modified procedure which treats the best interests of the child as a primary consideration.

102. An equally crucial ingredient of the concept of "fair trial" however is the principle that the trial process should provide for the effective participation of the accused, who must be given an adequate and proper opportunity to exercise defence rights ( eg . Eur. Court HR, Lüdi v. Switzerland, op. cit., p. 21, paras. 47-50, Stanford v. the United Kingdom judgment of 23 February 1994, Series A 280-A, para. 26). In this context, the Commission recalls that the Convention is intended to guarantee rights which are not theoretical or illusory  but rights which are practical and effective, an interpretative approach of particular relevance  to the rights of the defence , given the prominent place held in a democratic society by the right to a fair trial (see, amongst other authorities, Eur. Court HR, Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 16, para. 33).

103. The Convention organs have rarely been faced with issues as to the application of the above principles to juveniles. In Nortier v. the Netherlands (Eur. Court HR, judgment of 24 August 1993, Series A no. 167), which concerned the compatibility with the requirements of independence and impartiality in respect of the participation of a judge in the pre-trial stages and trial of a juvenile offender, the various opinions of the judges of the Court and the members of the Commission  reflect the concern that the special considerations applying to young persons should not be allowed to dilute the fundamental guarantees of Article 6.  However, the Commission is of the opinion that where a child is faced with a criminal charge and the domestic system requires a fact-finding procedure, with a view to establishing guilt, it is essential that his age, level of maturity and intellectual and emotional capacities be taken into account in the procedures followed.

105. Nonetheless, while the Government have emphasised the necessity for the public trial in the interests of justice, the Commission does not find this a compelling argument, particularly where domestic law has recognised , in the case of other serious crimes (such as rape, grievous bodily harm or robbery), that a child offender requires to be dealt with in special proceedings in a youth court, in which the elements of formality and publicity have been modified. It considers that the public trial process in an adult court with attendant publicity must be regarded in the case of an eleven year old child as a severely intimidating procedure. The way in which the trial placed the applicant, in a raised dock, as the focus of intense public attention over a period of three weeks, must have seriously impinged on his ability to participate in the proceedings in any meaningful manner. The Commission finds it significant that neither of the children in the proceedings gave evidence. On the basis of the material before it, the Commission is satisfied that their psychological state was such that they could not realistically have been expected to do so in a public, highly charged court room.  In these circumstances, the primary purposes of the proceedings, the establishment of the facts of the case and the allocation of responsibility, were impaired. The Commission recalls that the trial judge was unable at the conclusion of the trial to determine the relative culpability of the two defendants. It acknowledges that it can never be required, whatever the form of procedure, that an accused give evidence. However, where the alleged offender is a child, the procedures adopted must be conducive to an active participation, as opposed to passive presence. Otherwise the trial risks presenting the appearance of an exercise in the vindication of public outrage.

106. The Commission has considered carefully the counter argument of the Government that there was a crucial public interest in conducting an open trial and that a closed trial would have given  unsatisfactory assurances to the public, and in particular perhaps, the victim's family. It would note however that a modified procedure could provide, in a variety of ways, for selected attendance rights and appropriate reporting. It would also adopt in this context the distinction drawn in the present case by the majority of the House of Lords between the considerations of "public clamour " and "public interest" (see para. 61).

107. The Commission concludes that, having regard to the age of the applicant the application of the full rigours of an adult, public trial, deprived him of the opportunity to participate effectively in the determination of the criminal charges against him. In consequence, he did not receive a fair trial as required by Article 6 of the Convention.

CONCLUSION

108. The Commission concludes by 14 votes to 5, that there has been a violation of Article 6 of the Convention in respect of the trial of the applicant.

Article 14 of the Convention

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

110. The applicant submits that he was discriminated against in that he was held fully criminally responsible whereas a younger child under ten or an adult with similar mental capacities would not. The age-limit is imposed arbitrarily without regard to whether, for example, the ten year old child has the emotional maturity to match his age. An adult whose mental age was fourteen, suffering from "arrested development", would attract a defence of diminished responsibility.

112. The Commission recalls its finding above under Article 6 of the Convention, that the applicant did not receive a fair trial in that the procedure was not compatible with his age. In the circumstances, it considers that no separate issue arises under Article 14 of the Convention.

CONCLUSION

113. The Commission concludes, by 15 votes to 4, that no separate issue arises under Article 14 of the Convention.

D.    As regards the sentence imposed on the applicant

Article 3 of the Convention

115. Article 3 of the Convention provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

116. The applicant submits that the sentence of detention during Her Majesty's pleasure is a mandatory penalty with a substantial punitive element that exposes a child detainee to potential lifelong detention. This penalty is imposed irrespective of the youth of the offender or any mitigating circumstances.  The sentence is not terminable at any stage since even if a child detainee is released, this is conditional and he is subject to possible revocation of his licence for the rest of his life. He argues that this is incompatible with UN Convention on the Rights of the Child and the Beijing Rules, which emphasise that detention for children should be for the shortest appropriate time and governed by the well-being of the individual child, not by the perceived requirements of retribution. He is also liable to be transferred at the age of 18 to a  young offenders' institution and at the age of 21 to an adult prison, which will place him at physical and psychological risk, with the likelihood that any beneficial effects of his current treatment will be lost. He submits that it is inhuman to punish him as an adult for an offence committed at age ten.

117. The Government submit that in respect of an offence of murder, horrifying on its facts, the imposition of a sentence of detention cannot be regarded as reaching the threshold of severity incompatible with Article 3. They point out that the applicant is held in conditions, appropriate to his age and needs, about which no complaints are made. Further the sentence is not a life sentence. The applicant will only be detained for so long as is appropriate to the punishment fitting to the offence and unless and until it is safe to release him back into the community. This form of detention, and the inclusion of a punitive element in respect of a grave criminal offence does not offend the UN Convention. They submit that there can be nothing inhuman and degrading about transferring offenders at age 18 and 21 to institutions holding prisoners of their own age. To retain them in juvenile institutions would be inappropriate and potentially humiliating. In any event, the complaints in this respect are premature.

120. The Commission concludes that the sentence imposed on the applicant does not disclose inhuman or degrading treatment or punishment contrary to Article 3 of the Convention.

CONCLUSION

Article 5 of the Convention

122. Article 5 of the Convention provides, as relevant:

"1. Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;"

123. The applicant submits that the imposition of a penalty on a child which involves potentially lifelong detention without any opportunity for the consideration of the individual circumstances of the offender and the offence, is arbitrary and contrary to the basic principle of discretionary and individualised sentencing for juveniles. It fails, inter alia , to distinguish between the penalty appropriate for a ten year old and a seventeen year old, ignoring the vastly differing levels of psychological, emotional and social maturity. Nor does it permit the judge to take into account in sentencing any evidence of social or emotional deprivation. This is contrary to the international principles that a sentencer must take into account the individual circumstances of the child.

124. The Government submit that the purpose and effect of the sentence of detention during Her Majesty's pleasure is to enable consideration to be given to the applicant's individual circumstances. The specific circumstances of the individual case determines how long the offender should be detained. It is a sentence which requires the release of the offender once he has served his tariff and once it is safe to release him.

125. The Commission recalls that detention, to be in conformity with Article 5 para. 1, must satisfy the requirements of lawfulness and fall within one of the specified exceptions to the right to liberty. Lawfulness essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see, amongst other authorities, Eur. Court HR, Bizzotto v. Greece judgment of 15 November 1996, Reports 1996-Vn p. 1738, para. 31). Furthermore,there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention (see Eur. Court HR, Aerts v. Belgium judgment of 30 July 1998, to be cited in Reports 1998, para. 46).

126. The Commission notes that there is no dispute that the sentence imposed on the applicant complied, substantively and procedurally, with domestic law. It observes that the applicant's claims that it nonetheless discloses arbitrariness is based essentially on the non-discretionary nature of the sentence, which is fixed by law in respect of the offence of murder. The Commission does not consider that fixed term sentences in respect of particular offences can per se be regarded as incompatible with the requirements of Article 5, such being a common feature in many Contracting States. Further, even assuming that it could be held that Article 5 para. 1 (a) required sentences of detention for convicted children to be geared exclusively to individual considerations of rehabilitation and prevention, the Commission is not satisfied that in this case there is insufficient relationship between the purpose of the detention and the type of sentence imposed. Detention during Her Majesty's pleasure is an indeterminate sentence, the decisive ground for continued detention, after the expiry of the tariff,  being dangerousness to society. This, as the Government submit, depends on an examination of the individual circumstances of the particular child offender.

127. The Commission concludes that the sentence imposed on the applicant does not disclose any unlawfulness or arbitrariness contrary to Article 5 para. 1 of the Convention.

CONCLUSION

128. The Commission concludes, by 17 votes to 2, that there has been no violation of Article 5 para. 1 of the Convention in respect of the applicant's sentence.

E. As regards the tariff and review of detention

129. The applicant complains under Article 6 para. 1 of the procedure whereby his tariff was fixed and of the lack of proper review of the lawfulness of his continued detention under Article 5 para. 4 of the Convention.

Article 6 of the Convention

130. Article 6 para. 1 of the Convention provides, in its first sentence:

"1. 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. ..."

131. The applicant submits that the process of fixing a tariff is in reality, if not also in form, a sentencing exercise which should attract the safeguards of Article 6 para. 1 of the Convention. He argues that the tariff fixes the maximum period to be served for the purposes of punishment and deterrence: it is fixed at the outset of the sentence on the basis of facts known at the time of sentence and represents the minimum period of detention that must be served irrespective of subsequent progress (save in exceptional cases). He points out that the majority of the judges in the Court of Appeal and House of Lords in the present case (para. 35) characterised the  exercise of fixing the tariff as a sentencing exercise.  In these circumstances, Article 6 is clearly breached by the fact that the decision-maker is the Secretary of State and not a court or tribunal independent of the executive, attended with judicial guarantees.

132. The Government submit that the fixing of the tariff is not part of the sentence of the court. The applicant received a fair and public trial, was convicted and received the sentence imposed by Parliament for young offenders convicted of murder.  The tariff is an aspect of the administration of the sentence already imposed by the criminal court. Where a sentence is indeterminate, the interests of the applicant are to be considered under Article 5 para. 4 which requires access to court in relation to matters which alter over time. They point out that the judiciary themselves considered a lengthy tariff was appropriate (the trial judge, eight years, the Lord Chief Justice, ten years) and the House of Lords rejected all complaints that there was inadequate material for such views to be formed.

133. The Commission has, first of all, considered whether Article 6 para. 1 is applicable to the tariff-fixing procedure in issue. It recalls that generally matters of sentencing following conviction form part of the determination of a criminal charge and fall within the scope of Article 6 para. 1. "Criminal charge" has been held to be an autonomous Convention concept, the Convention organs not being bound by domestic classifications which are only a starting point, other key considerations including the nature and purpose of the proceedings and the significance of what is at stake for the applicant ( mutatis mutandis , Eur. Court HR, Engel v. the Netherlands judgment of 8 June 1976, Series A no. 22, p. 34, paras. 81-82).

134. In this context, the Commission notes that the tariff serves a retributive and deterrent purpose. The Government have referred, in its submissions on other points, to the tariff representing the "appropriate punishment" for the offence. It must therefore be regarded as punitive in character and based on the finding of guilt in the criminal proceedings. There is also no doubt as to the importance of what is at stake - the minimum period of detention which, save in exceptional circumstances, must be served before release becomes possible.  In the applicant's case, the tariffs proposed have varied between eight and fifteen years. The procedure may therefore be considered as imposing a penalty of considerable severity.

135. The Commission further observes that the domestic courts have also recognised that the tariff-fixing procedure is, in its essential elements, a sentencing exercise. As a consequence of this assessment, a majority of the House of Lords came to the conclusion in the present case that the Secretary of State was taking on a judicial role when fixing the tariff of a child detainee and should act judicially when doing so (para. 35). While the Commission has itself held that the fixing of tariff for mandatory life prisoners is an administrative procedure in the execution of a sentence fixed by a court (see eg . Nos. 35692/96 and 39047/97,U.K., decs . 20.5.98, unpublished),  it recalls that sentences of detention during Her Majesty's pleasure are different in nature and purpose from mandatory sentences of life imprisonment, where the essence of the punishment is the forfeiture of liberty for life. Where an indeterminate sentence contains an element of the imposition of punishment in respect of the particular offence, the Commission is of the opinion that the fixing of the punitive element must be regarded as part of the sentencing procedure and attracts the application of Article 6 para. 1 in its criminal aspect. Article 6 para. 1 is, accordingly, applicable to the procedure in this case whereby the tariff of the applicant was fixed.

136. As regards compliance with the requirements of Article 6 para. 1, the Commission notes that the Government have not sought to argue that the Secretary of State would satisfy the criteria of an "independent and impartial tribunal". Indeed, as a member of the executive, his decision-making role in the fixing of the applicant's tariff cannot be regarded as compatible with this aspect of Article 6 para. 1 (see, amongst other authorities, Eur. Court HR, Ringeisen judgment of 16 July 1971, Series A no. 13, p. 39, para. 95). In these circumstances, the Commission finds that it is unnecessary to consider whether the procedure conformed in other respects with the guarantees of fairness under Article 6.

CONCLUSION

137. The Commission concludes, by 18 votes to 1, that there has been a violation of Article 6 para. 1 of the Convention in respect of the fixing of the applicant's tariff.

Article 5 para. 4 of the Convention

138. Article 5 para. 4 provides:

"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."

139. The applicant submits that the nature of detention during Her Majesty's pleasure, which is indeterminate and premised on youth and the capacity for change, presupposes a process of periodic review throughout the sentence or at least after a very short initial period (three to four years at the very most). Mental and physical changes will inevitably occur to any child of ten or eleven. The applicant points out that eight out of the ten judges in the domestic proceedings seriously questioned the applicability of the tariff approach to child so young. The applicant has already been detained for over five years without receiving a review of the lawfulness of his continued detention by a judicial body, and has no prospect of receiving one in the near future.

140. The Government submit that, in light of the Court's judgment  in Hussain (op. cit.), the right to a review by a judicial body required by Article 5 para. 4 arises after the expiry of the tariff period, after which the possibility of release depends upon dangerousness, a factor which may vary over time. Until that time, there can be no right of review, since the tariff period depends primarily on the period for retribution and deterrence, factors not subject to change over time. The fact that the Secretary of State is prepared to alter the tariff having regard to progress and development does not accord any right to review prior to the expiry of the tariff.  Nor does Article 5 para. 4 prevent the tariff from being fixed and reconsidered from time to time. In any event, the Government point out that the tariff set by the Secretary of State is subject to challenge by way of judicial review which is a powerful remedy to prevent arbitrary decisions and thus provides sufficient judicial control. The applicant's tariff is being reviewed following a successful challenge in the House of Lords.

141. The Commission recalls that the Court in the Hussain case (Eur. Court HR, op. cit., p. 269, paras. 52-54) found that an indeterminate term of detention for a convicted young person could only be justified by considerations based on the need to protect the public. These considerations had to take into account any developments in the young offender as he or she grows older. Since therefore new issues of lawfulness, relevant to dangerousness to society, might arise in the course of detention, the Court held that such a young person is entitled under Article 5 para. 4 to take proceedings to have these issues decided by a court at reasonable intervals.

142. The Commission notes that the Hussain case related to an applicant, detained during Her Majesty's pleasure, whose tariff had expired. The Court's judgment does not deal directly with the situation where such a person's tariff has not expired, or where the tariff has been quashed but not replaced. While it is correct that the Court did not find the tariff to be incompatible with Article 5 para. 4 when applied to children, the Court was not required to address the point.

143. The Commission recalls that the tariff is set to reflect the perceived requirements of retribution and deterrence. It would note that, whatever tariff may be fixed, a sentence of detention involving removal from a child's home will, save in the most exceptional circumstances, involve a punitive element. It recalls also in this context the principle identified in the Beijing rules that sentences of detention should be set at the minimum. Having regard to the Court's consideration that the only justification for an indeterminate sentence are the considerations of risk to the public and having regard to the fact that children aged eleven are at a stage when they may be expected to develop physically, intellectually and emotionally over the following years, the Commission considers that only a short tariff could be compatible with Article 5 para. 4. It could not be excluded that, after several years, a young offender, due to progress in maturation, could claim that new issues had arisen affecting the lawfulness of his continued detention. The Commission notes that  various of the judges in the House of Lords in their judgments in the domestic proceedings also showed concern that the detention of a very young offender should be subject to continual assessment and that decisions should not be taken which excluded the possibility of review.

144. The Government have argued that the complaints of the applicant are premature since there is no tariff currently in force, the procedure for fixing the tariff having been commenced afresh after the decision of the House of Lords. They submit that in any event the judicial review procedure provided the applicant with the opportunity to challenge his detention. The Commission notes that the judicial review proceedings in the present case were directed primarily at whether the Secretary of State had acted lawfully in the procedure adopted in fixing the tariff of fifteen years. That decision was quashed but the courts were unable to substitute their opinion of the suitable tariff, the matter reverting to the Secretary of State once more. While the procedure certainly provided relief against certain aspects of the Secretary of State's procedure, it cannot be regarded as offering a review of the basis of the applicant's detention in the sense required by Article 5 para. 4 of the Convention. It did not entail any consideration of  whether or not the applicant should be released, in respect of which the courts had no effective decision-making power. The Commission further recalls that the applicant has been detained since his conviction on 24 November 1993, namely, for over five years. Five years for an applicant sentenced at age eleven must be regarded as a long period of time. The Commission finds that the failure to provide him with the opportunity for a review of his detention during that period, and the lack of any current opportunity to apply for such a review, is incompatible with the requirements of Article 5 para. 4, as applicable to offenders sentenced at a very young age.

CONCLUSION

145. The Commission concludes, by 18 votes to 1, that there has been a violation of Article 5 para. 4 of the Convention.

F. Recapitulation

146. The Commission concludes, by 17 votes to 2, that there has been no violation of Article 3 of the Convention in respect of the trial of the applicant.

147. The Commission concludes,  by 14 votes to 5, that there has been a violation of Article 6 of the Convention in respect of the trial of the applicant.

148. The Commission concludes, by 15 votes to 4, that no separate issue arises under Article 14 of the Convention in respect of the trial of the applicant.

149. The Commission concludes, by 17 votes to 2, that there has been no violation of Article 3 of the Convention in respect of the applicant's sentence.

150. The Commission concludes, by 17 votes to 2, that there has been no violation of Article 5 para. 1 of the Convention in respect of the applicant's sentence.

151. The Commission concludes, by 18 votes to 1, that there has been a violation of Article 6 of the Convention in respect of the fixing of the applicant's sentence.

152. The Commission concludes, by 18 votes to 1, that there has been a violation of Article 5 para. 4 of the Convention.

       M.-T. SCHOEPFER                     S. TRECHSEL

         Secretary                          President

     to the Commission                  of the Commission

(Or. English)

CONCURRING OPINION OF MR N. BRATZA

I have voted with the majority of the Commission in relation to each of the Convention issues raised by the application and only wish to add certain supplementary remarks on two of the issues, namely those raised under Articles 3 and 6 concerning the trial of the applicants.

As to the complaint of a violation of Article 3 of the Convention, I am unable to accept the argument that the attribution of criminal responsibility to the applicant as a ten year old child or that the trial process to which the applicant was subjected amounted to inhuman or degrading treatment within the meaning of Article 3 of the Convention.

It is true that in its Report of January 1995, the U.N. Committee on the Rights of the Child expressed concern as to the low age of criminal responsibility in the United Kingdom and recommended that serious consideration be given to raising the age.  It is also true that the Beijing Rules on the Administration of Juvenile Justice provide that the age of criminal responsibility should not be set too low.  However, as the Commission point out, it is apparent that, although the age of criminal responsibility is low by comparison with that in the majority of other Member States, the United Kingdom is not unique in maintaining an age as low as ten, a lower age being apparently adopted in four Member States.  Moreover, even in those States with a higher age of criminal responsibility, the gravity of what the applicant did would almost certainly have involved the taking of some measures (including punitive measures) in respect of the child concerned, even if not those of a criminal nature.

While sharing the doubts of the majority of the Commission as to the threshold set in the United Kingdom, the mere attribution of criminal responsibility to a person as young as the applicant did not in my view amount to inhuman or degrading treatment for the purposes of Article 3 of the Convention.

The question remains whether the subjection of the applicant to a full criminal trial, in public and in an adult court, once he had been found to be criminally responsible for his actions, amounted to treatment of such severity as to fall within the scope of Article 3.

It is clear that, in general, the subjection of a person to criminal proceedings in a high profile case, with the formality of a public trial and with the attendant publicity, would not without more amount to inhuman or degrading treatment even if it gave rise to feelings of fear, intimidation and humiliation on the part of the defendant concerned.  The central question is, thus, whether the fact of the age of the present applicant alters the position and had the result that the mental suffering and humiliation experienced by the applicant attained the requisite level of severity.

As is pointed out in the Commission's Report, the age of an applicant is one of the factors to which special regard is to be had in determining whether a particular treatment or punishment attains the minimum level of severity.  In this regard there can, in my view, be little doubt that, for an 11 year old child, a public trial, in an adult court and with the intense media interest that attended the applicant's trial, would be a more frightening, intimidating and distressing experience than for an adult.  Moreover, as is pointed out in the Report, there was some evidence before the Commission (stronger in the case of V. than in the case of T.) that the proceedings were not only distressing but had some psychological effect on the two defendants.

On the other hand, I consider it to be of cardinal importance that nothing in the trial procedures adopted in the case of either defendant was intended or designed to cause them mental suffering or humiliation.  On the contrary, as the Government have emphasised , a number of special measures were taken in deference to the applicant's young age to reduce the distress caused to him.  While the applicant argues that these measures did not go far enough and that the interests of justice did not in any event demand subjecting the applicant to a full-scale, public trial, I am unable to accept that the application of the ordinary criminal trial procedures could amount to inhuman or degrading treatment of an applicant, even where, as here, the applicant was as young as eleven.

In my view, the application of such trial procedures is better examined in the context of the requirements of fair trial under Article 6 of the Convention.

It is an essential element of "fairness" in Article 6 that the trial process provides for the effective participation of the defendant in that process, which requires in principle that a defendant should be present during the proceedings and should be able to hear and follow them, and to give instructions where necessary to his or her lawyer.  This cannot mean that a defendant must necessarily be able to understand the intricacies of law or procedure, his interests in this regard being adequately protected by having a competent legal adviser to represent him.  But it does mean, in my view, that a defendant should have some ability to comprehend what is going on and to contribute effectively to his own defence .  More particularly, in the case of a child defendant it is I consider an essential requirement of a fair trial that the mode of trial and the trial procedures should be adapted to take into account the age, level of maturity and intellectual and emotional capacity of the child concerned.

The Government lay emphasis on the fact that both defendants in the present case were found fit to plead, in the sense of having sufficient intellectual understanding that the acts of which they were accused were seriously wrong.  It is further pointed out that both defendants were legally represented throughout the proceedings, that they had the continuous assistance of social workers and that steps were taken to modify the normal procedures (by, for instance, the grant of frequent adjournments and a reduction in the length of the court sittings) so as to facilitate the defendants' understanding and participation in the trial proceedings.

I see considerable force in this argument.  In particular, I readily accept that, within the constraints set by the requirements of a public criminal trial, all possible steps were taken by the trial judge to make allowances for the young age of the two defendants.

However, I have grave doubts whether, whatever special procedures are devised, the mere fact of subjecting a child to a public trial in an adult court is consistent with the effective participation of the child in the trial process, and consequently with the requirement of fairness in Article 6.

I recognise the importance of the principle that justice should be administered in public.  I recognise too, that not only is this principle enshrined in Article 6 itself but that the proviso to paragraph 1 of that Article merely permits, and does not require, the exclusion of the public in the interests of juveniles.  Moreover, there is I consider strength in the submission of the Government that in a case of the utmost gravity and public concern, to have held a trial in secret, without a jury and without an obligation on the prosecution to prove the charges beyond reasonable doubt, would have undermined the public interest in fair and open justice.

Despite the force of these points, it seems to me that the public interest in a fair trial does not necessarily require that the trial be in public or that it be subject to the formal procedures applied in  a Crown Court.  Indeed, it is only in a case of murder or manslaughter or other offence punishable if committed by an adult with fourteen or more years' imprisonment, that a child or young person would under domestic law be triable in a Crown Court, all other offences being dealt with  summarily in youth courts.  So far as concerns the public interest in open justice, it seems to me that this must in a proper case give way to the competing public interest that the well-being of the young defendant - even one who is accused of committing an offence of the utmost gravity - should be the guiding factor in the consideration of his or her case.  This principle appears to be supported not only by Article 40 of the U.N. Convention on the Rights of the Child but by Article 14 (4) of the U.N. Covenant on Civil and Political Rights which provides that in the case of juvenile persons "the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation".  It is supported, too, by the Beijing Rules, which urge the importance of respecting the "privacy" of the child at all stages and which provide that in principle no information leading to the identification of a juvenile offender should be published.

I consider that, in proceedings against a child, even for such a grave offence as murder, "fairness" in Article 6 requires the taking of special measures to facilitate the effective participation of the child in the process.  In my view, it is not consistent with this requirement that a child is subjected to the full rigours of an adult, public trial.

(Or. French)

DISSENTING OPINION OF MR. L. LOUCAIDES

I am unable to agree with the finding of the majority that there has been a breach of Art. 6 of the Convention in respect of the trial of the applicant.

The gist of the reasoning of the majority is that, having regard to the age of the applicant, the application of the full rigours of an adult public trial, including in particular the attendant publicity, deprived him of the opportunity to participate effectively in the determination of the criminal charges against him and that this was incompatible with the requirements of a fair trial.

A criminal trial, whether in camera or not, may inevitably be expected to cause feelings of anxiety and oppression to an accused person facing a serious charge whether an adult or a child.  Certain publicity is also unavoidable with regard to serious criminal offences such as the one with which applicant was charged.  This publicity accompanies the accused in his public appearances well before and during his trial even if the trial itself is carried on in camera.  Moreover a trial in camera in a juvenile court is not free of the substantial degree of pressure that a young person may be expected to feel in a setting of any kind of judicial proceedings especially when he is accused of a serious crime.  The involvement of judges, lawyers and witnesses in the case of the accused child makes the child feel out of place and in an oppressive and embarrassing environment.  This is inevitable.

In my opinion the demands of a "fair hearing" do not require that an accused person is made to feel at ease or be enabled to comprehend all the events and complexities of his trial.   This is impossible and unrealistic. And it is particularly true in the case of accused children.  If it were otherwise, persons without knowledge of law, with low intelligence, illiterate persons or persons with mental problems could never have a fair hearing and therefore could never be tried.  What is important to secure a fair trial is to provide the accused, be that a child or an adult, with all necessary facilities and opportunities to defend himself effectively.  The applicant was provided with a defence counsel and the assistance of a social worker in Court and he was not deprived of any opportunity to exercise his defence rights.  It is important to stress here the fact that at no time during the trial did the counsel of the applicant complain to the trial court that the procedure followed was in any way detrimental to the rights of the accused.  The court had a wide discretion to regulate the proceedings.

Whether in an adult public trial or in a juvenile court, the position of an accused child, as far as his effective participation in the proceedings is concerned, is not materially different.  In both cases, such participation is practically in the hands of the child's lawyer.

A public trial of the applicant's case was, in my opinion, fully justified bearing in mind the seriousness of the charge as well as the demands of the public interest in having an open trial due to the unique nature of the case.

The majority invoked the fact that the applicant did not give any evidence in his trial.  To my mind, this is not an indication that the applicant was a victim of an unfair hearing.  If that was so, one would have expected his lawyer to place this on record through a relevant statement.  In the light of all the above, I find that the applicant was not a victim of a breach of Art. 6 of the Convention in respect of his trial.

I also disagree with the findings of the majority that there have been violations of Art. 6 para 1 and Art. 5 para 4 of the Convention in respect of the fixing of the applicant's tariff by the Secretary of State and the absence of any review of the detention of the applicant.  The reason for my disagreement is the fact that there is no tariff currently in force.  The applicant remains in detention by virtue of the original judgment of the court by which he was sentenced to detention during Her Majesty's pleasure with recommendation for a tariff of eight years.  Therefore I consider that the applicant can not now be regarded as a victim of the tariff system for which he complains such complaint being in the circumstances of the case premature.

(Or. English)

PARTLY DISSENTING OPINION OF MR. S. TRECHSEL

While I am in agreement with the majority of the Commission on all other points, including the finding of violations of Articles 6 and 5 para. 4 of the Convention in respect of the fixing of the applicant's tariff, I disagree as to the finding of a breach of Article 6 of the Convention in respect of the trial of the applicant.

Mr. Loucaides has very aptly set out the reasons for his dissent on this same point and I fully adopt his opinion.

(Or. English)

PARTLY DISSENTING OPINION OF MR E. BUSUTTIL

I consider that there has been no breach of Article 6 of the Convention in respect of the circumstances surrounding the trial of the applicant for the reasons cogently set out in that part of Mr L. Loucaides ' dissenting opinion dealing with this particular point.

(Or. English)

PARTLY DISSENTING OPINION OF MR M.P.PELLONPÄÄ

I have voted against the finding that there has been a violation of Article 6 of the convention in respect of the trial of the applicant.  Having had the advantage of reading the dissenting opinion of Mr L. Loucaides , I fully agree with his reasons insofar as concerns the above-mentioned article.

(Or. French )

OPINION PARTIELLEMENT DISSIDENTE DE B. CONFORTI

À LAQUELLE I. BÉKÉS DÉCLARE SE RALLIER

Je suis arrivé, pour ma part, à la conclusion qu'il y a eu dans cette affaire violation de l'article 3 de la Convention, car j'estime que le requérant a été l'objet d'une traitement « inhumain ».

Je ne partage pas l'approche sélective adoptée par la majorité de la Commission, qui consiste à traiter des griefs du requérant sous l'angle des articles 3 et 6, en séparant la procédure du fond du procès diligenté contre le requérant. Dans pareille affaire, l'approche devrait être globale. En effet, et pour me résumer, ce dont se plaignait le requérant était d'avoir été traité comme un adulte pour un crime qu'il avait perpétré à l'âge de dix ans.

Or, si l'on met ensemble toutes les composantes de cette plainte, il me paraît difficile de nier que l'article 3 n'est pas mis en cause. Ces composantes sont les suivantes :

-  le fait que le requérant a été jugé par une juridiction ordinaire et non par un tribunal spécialisé pour enfants mineurs, assorti de garanties spécifiques dont doit être entouré pareil tribunal quant à sa composition et à sa procédure, garanties d'autant plus nécessaires qu'il s'agit ici d'un mineur de onze ans ;

- la publicité donnée au procès avec la diffusion dans la presse et à la télévision des photos du requérant ;

- la nature fortement « intimidante » de toute la procédure, dont il n'est point besoin de reprendre ici les détails, nature qui est expressément reconnue par la majorité de la Commission (voir par. 69 du Rapport) ;

- l'imputation d'une responsabilité pénale à un mineur de dix ans, ce que le sens commun a du mal à admettre, même si la responsabilité est tempérée par la nécessité de prouver au delà de tout doute raisonnable l'existence du dol ;

- le fait d'avoir, par voie de conséquence, assujetti un mineur de onze ans à la détention, à l'instar d'un adulte, au lieu de prendre à son endroit des mesures alternatives telles que l'internement dans une institution pour enfants gravement perturbés.

Tout cela me paraît démontrer de la part des autorités de l'Etat défendeur un manque d'humanité, et que la souffrance causée au requérant doit être classée parmi celles interdites par l'article 3.