Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 21928/93

Abed HUSSAIN

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 11 October 1994)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-18) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4). . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-13) . . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-44). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 19-28). . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 29-44). . . . . . . . . . . . . . . . . . . . . . 4

III. OPINION OF THE COMMISSION

(paras. 45-67). . . . . . . . . . . . . . . . . . . . . . . . 8

A. Complaints declared admissible

(para. 45). . . . . . . . . . . . . . . . . . . . . . . . 8

B. Points at issue

(para. 46). . . . . . . . . . . . . . . . . . . . . . . . 8

C. Article 5 para. 4 of the Convention

(paras. 47-61). . . . . . . . . . . . . . . . . . . . . . 8

1. Applicability of Article 5 para. 4 to release on

licence (paras. 48-54) . . . . . . . . . . . . . . . . . 8

2. Compliance with the requirements of Article 5

para. 4 (paras. 55-60) . . . . . . . . . . . . . . . . .10

CONCLUSION

(para. 61) . . . . . . . . . . . . . . . . . . . . . . .11

D. Article 14 of the Convention

(paras. 62-65) . . . . . . . . . . . . . . . . . . . . .11

CONCLUSION

(para. 65) . . . . . . . . . . . . . . . . . . . . . . .11

E. Recapitulation

(paras. 66-67) . . . . . . . . . . . . . . . . . . . . .12

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .14

APPENDIX II: DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . .. . . . . . 15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is Abed Hussain, a Pakistani citizen born in 1962

and currently serving a sentence of imprisonment in HM Prison

Doncaster. He is represented by Ms. Kate Akester, a solicitor working

for Justice in London and Mr. Edward FitzGerald, counsel practising in

London.

3. The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Iain Christie, Foreign and

Commonwealth Office, as Agent.

4. The case concerns the complaints of the applicant that he is

unable to obtain a review by a court of the lawfulness of his continued

detention at Her Majesty's pleasure and that he has been discriminated

against on the basis of his status as a person convicted of murder.

The application raises issues under Article 5 para. 4 and Article 14

of the Convention.

B. The proceedings

5. The application was introduced on 31 March 1993 and registered

on 27 May 1993.

6. On 6 July 1993, the Commission decided to communicate the

application to the respondent Government for their written observations

on the admissibility and merits of the applicant's complaints under

Article 5 para. 4 of the Convention.

7. The Government submitted their written observations on

6 October 1993. The applicant submitted his written observations in

reply on 1 December 1993.

8. On 5 April 1994, the Commission decided to invite the parties to

an oral hearing on the admissibility and merits to be held

consecutively with that in the case of Prem Singh v. the United

Kingdom, No. 23389/94.

9. At the hearing which was held on 30 June 1994, the Government

were represented by Mr. Iain Christie, as Agent, Mr. David Pannick

Q.C., Counsel, and Mr. Harry Carter, Ms Helen Bayne and Ms Joy Hutcheon

as Advisers. The applicant was represented by Mr. Edward FitzGerald,

Counsel, Mr. Jonathan Cooper, Counsel, and Ms Kate Akester, Solicitor.

10. On 30 June 1994, the Commission declared the application

admissible.

11. The parties were then invited to submit any additional

observations on the merits of the application.

12. On 26 July 1994, the Government submitted further observations.

13. After declaring the case admissible, the Commission, acting in

accordance with 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

14. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

E. BUSUTTIL

G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. J.C. GEUS

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

N. BRATZA

J. MUCHA

15. The text of the Report was adopted by the Commission on

11 October 1994 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

16. The purpose of the Report, pursuant to 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.

17. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

18. 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

19. In December 1978, the applicant, then aged 16, was found guilty

of the murder of his younger brother aged two. He received a mandatory

sentence of detention "at Her Majesty's pleasure" pursuant to section

53(1) of the Children and Young Persons Act 1933 (as amended) (see

Relevant domestic law and practice below).

20. The applicant appealed against both his conviction and sentence.

The Court of Appeal dismissed his appeal on 5 March 1980.

21. Under the administrative procedures governing such sentences as

that received by the applicant, a tariff period is set to fix the

number of years' detention required to satisfy the requirements of

retribution and deterrence. The applicant's tariff period was set at

fifteen years by the Secretary of State after consulting the trial

judge and the Lord Chief Justice. In his letter to the Secretary of

State, the trial judge stated, inter alia,:

"Over the two or three days immediately preceding the

baby's death, had undoubtedly treated him

with very considerable violence by slapping, kicking and

shaking. The baby was covered with over 60 bruises and his

brain and spine were injured. Since denied

ever having laid hands on him, it was not possible to

discover why he had acted with such violence.

is unquestionably an unscrupulous young

liar, but the most unusual feature of him was his

passivity. He demonstrated no feeling whatsoever for his

brother's injury and death. This gave me the impression

that he is very probably a very dangerous young man who is

quite unmoved by brutality. I am anxious that this aspect

of his character should be borne fully in mind whenever the

question of release arises. He still has three young

siblings and their safety must be a predominant

consideration. I am deeply concerned at the appearance of

normality this young man gives; it is probably very

misleading.

I cannot recommend any period for his detention. It will

have to continue until one can say with reasonable

certainty that maturation has rendered him safe. The

difficulty is that he is already `Old for his years', as

one police officer described him. Maturation here involves

much more than simply a young boy growing up. I can do no

more than sound this sombre note of warning."

22. The Parole Board has considered whether or not to recommend the

applicant's release on four occasions.

23. The first Parole Board review took place in December 1986. The

reports of progress were positive and, as later disclosed to him:

"the local review committee, who felt the risk was

acceptable, considered suitable to be given

a provisional release date".

The Parole Board did not however recommend the applicant's release but

did recommend that he be transferred to a less restrictive Category C

prison with a further review to commence in August 1990. At the time,

the applicant did not see any of the reports before the Board and had

no opportunity to appear before it.

24. The applicant's second Parole Board review took place in 1990.

A Home Office summary of the review, disclosed later to the applicant,

stated:

"The local review committee recommended that

applicant> should be given a provisional release date...

The Board did not recommend , but

recommended his transfer to open conditions with a further

review to commence eighteen months thereafter. However the

Secretary of State rejected the Board's recommendation and

directed that he should move to another category C prison

with a further review to commence in October 1992."

At the time, the applicant did not see any of the reports before the

Board and had no opportunity to appear before it. He was given no

reasons for the decisions taken.

25. In the third review in December 1992, the Parole Board

recommended that the applicant be transferred to open conditions with

a further review in six months time. However the Secretary of State

rejected this recommendation, directing that the applicant should

remain in close conditions with a further review to commence in March

1995. The applicant was only informed in March 1993 that his release

had not been recommended and about the date of his next review.

26. In June 1993, the applicant applied for judicial review in

respect of the decision communicated in March 1993 on the basis that

he had not been shown the reports on him placed before the Board. He

relied on the case of Prem Singh (see Relevant domestic law and

practice paras.**) which had indicated that persons detained at Her

Majesty's pleasure had a right to disclosure of reports.

27. On 13 October 1993, the Parole Board gave the High Court an

undertaking to reconsider the applicant's case immediately and to

disclose their dossier to him so that he could make informed comments.

The applicant withdrew his application for judicial review.

28. Following the fourth review of his case, in January 1994, the

Secretary of State accepted the Parole Board's recommendation to

transfer the applicant to open prison conditions, which transfer took

place in February 1994. The Parole Board will again consider the

applicant's case in February 1996.

B. Relevant domestic law and practice

1. Detention at Her Majesty's pleasure

29. The notion of detention at 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" and described their custody as being "during His Majesty's

pleasure".

30. In 1908, detention at 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."

2. Categorisation of detention at Her Majesty's pleasure

31. 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, 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.

32. 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)Criminal Justice Act 1982).

33. In the case of ex parte Prem Singh on 20 April 1993, Evans LJ in

the Divisional Court held as follows in respect of detention "at Her

Majesty's pleasure":

"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."

34. The Court accordingly held that the applicant in the case,

detained at 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.

3. Release on licence and revocation of licences

35. Persons sentenced to mandatory and discretionary life

imprisonment, custody for life and those detained at Her Majesty's

pleasure have a "tariff" set in relation to that period of imprisonment

they should serve to satisfy the requirements of retribution and

deterrence. After the expiry of the tariff, the prisoner becomes

eligible for release on licence. Applicable provisions and practice in

respect of the fixing of the tariff and release on licence have been

subject to change in recent years, in particular, following the coming

into force on 1 October 1992 of the Criminal Justice Act 1991 (the 1991

Act).

i. Prior to 1 October 1992

36. Section 61 (1) of the Criminal Justice Act 1967 provided inter

alia:

"The Secretary of State may if recommended to do so by the Parole

Board, release on licence a person serving a sentence of

imprisonment for life or a person detained under section 53 of

the Children and Young Persons Act 1933 (young offenders

convicted of grave crimes), but shall not do so in the case of

a person sentenced to imprisonment for life or to detention

during Her Majesty's pleasure or for life except after

consultation with the Lord Chief Justice of England together with

the trial judge if available."

37. A statement of policy issued by the Secretary of State on

13 November 1983 indicated that detention following expiry of the

"tariff" depended on whether the person was considered no longer to

pose a risk to the public.

38. In a parliamentary written answer to the House of Commons on

23 July 1987, the Secretary of State stated that in respect of

discretionary life prisoners the tariff would be fixed in accordance

with the judicial view which would be sought as soon as practicable

after sentence. In respect of mandatory life prisoners, he stated that

he would take into account the judicial view as to "tariff" as one

factor amongst others, including the need to maintain public confidence

in the system of justice.

ii. From 1 October 1992

39. On 1 October 1992, Part II of the Criminal Justice Act 1991 (the

1991 Act) came into force.

40. 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-A).

41. 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.

42. For the purposes of the 1991 Act, persons detained at 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).

43. 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."

44. 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."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

45. The Commission has declared admissible the applicant's complaints

that he is unable to obtain the review by a court of the lawfulness of

his continued detention at Her Majesty's pleasure and that he has been

subject to discrimination on the basis of his status as a person

convicted of murder.

B. Points at issue

46. The issues to be determined are:

- whether there has been a violation of Article 5 para. 4

(Art. 5-4) as regards the lack of review by a court of the

lawfulness of the applicant's continued detention;

- whether there has been discrimination contrary to Article 14

(Art. 14) in conjunction with Article 5 para. 4 (Art. 5-4) of the

Convention.

C. Article 5 para. 4 (Art. 5-4) of the Convention

47. Article 5 para. 4 (Art. 5-4) 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."

1. Applicability of Article 5 para. 4 (Art. 5-4) to release

procedures

48. The applicant submits that detention at Her Majesty's pleasure

is a wholly indeterminate sentence based on the special factor of

youth. It should be assimilated to discretionary life sentences for

adults in respect of which the European Court of Human Rights has held

that Article 5 para. 4 (Art. 5-4) of the Convention requires judicial

rather than executive control after the expiry of the punitive or

"tariff" part of their sentence. Since the only justification for his

detention is risk or "dangerousness", which is a factor susceptible to

change, the applicant submits that he should have a review of the

lawfulness of his continued detention by a body satisfying the

guarantees of Article 5 para. 4 (Art. 5-4) of the Convention.

49. The respondent Government submit that detention at Her Majesty's

pleasure is to be equated with the term of mandatory life imprisonment

for adults and is in effect the equivalent sentence imposed on

juveniles, with no distinction in law and practice from that applied

to adults. It is therefore to be regarded as a sentence fixed by law

in respect of the gravity of the offence concerned. They submit that

mandatory and discretionary life sentences differ in fundamental

respects, both in nature and applicable procedures. Pursuant to the

judgments of the Court, Article 5 para. 4 (Art. 5-4) does not grant an

entitlement to a prisoner serving a mandatory life sentence to

periodic judicial assessment of the grounds for his detention after the

expiry of his tariff (cf. Eur. Court H.R., Weeks judgment of

2 March 1987, Series A no. 114; Thynne, Wilson and Gunnell judgment of

25 October 1990, Series A no. 190-A and Wynne judgment of 18 July 1994,

Series A no. 294-A). The requirements of Article 5 para. 4 (Art. 5-4)

are accordingly satisfied by the original trial and appeal proceedings

of the applicant.

50. The Commission recalls that in its case-law the Court has

distinguished between mandatory and discretionary sentences of life

imprisonment. Mandatory life imprisonment is imposed because of the

inherent gravity of the offence (ie. in cases of murder) and applied

automatically regardless of considerations pertaining to the

dangerousness of the offender. No right to review of subsequent release

on licence arises in such cases.The discretionary life sentence has a

special indeterminate character and has been developed as a measure to

deal with mentally ill and unstable offenders. The discretionary

sentence serves a preventative rather than a punitive purpose and

because of the presence of factors (eg. dangerousness, instability)

which are susceptible of change with the passage of time, new issues

of lawfulness of continued detention may arise which require the

possibility of recourse to a body satisfying the requirements of

Article 5 para. 4 (Art. 5-4) (cf. Eur. Court H.R., Weeks judgment;

Thynne, Wilson and Gunnell judgment and Wynne judgment, loc.cit.).

51. The Commission notes that sentences of detention at Her Majesty's

pleasure are imposed automatically in the cases of murder by juveniles

(under eighteen years). To that extent, the detention has a similarity

with the mandatory sentence imposed in respect of murder by adults. The

adult sentence however is fixed at the term of life: detention at Her

Majesty's pleasure is on its face indeterminate. Though impliedly a

sentence of detention may authorise detention for life, the Commission

considers that a distinction must be drawn between a sentence which is

fixed by the judiciary at a maximum of life leaving a discretion to the

executive as to whether the individual is released earlier and a

sentence which has no fixed term and the limits of which are to be

defined by the executive.

52. The Commission has had regard to the origins of the term

"detention at Her Majesty's pleasure" which applied in 1800 to the

detention of insane offenders and in which context it had a clearly

preventative purpose. Juveniles under eighteen have been excluded from

the regime of mandatory life imprisonment and also from the notion of

"custody for life" which applies to offenders between 18 and 21. The

application of the term of detention at Her Majesty's pleasure to

juveniles would appear to the Commission to reflect an intention of

imposing a distinct regime of detention geared to the special

considerations which apply in dealing with very young offenders who are

potentially dangerous but who still have formative years ahead of them

and may change with maturation.

53. The applicant has submitted that if this type of detention is

regarded as equivalent to a mandatory life sentence fixed punitively

to reflect the gravity of the offence this would raise issues under

Article 3 (Art. 3) of the Convention in respect of the inhumanity of

imposing life sentences on children (which he also points out is

forbidden under Article 37 para. a of the United Nations Convention on

the Rights of the Child). The Commission considers it unnecessary to

examine this issue. It finds that detention at Her Majesty's pleasure

is, by its nature and objective, a term of indeterminate detention

based primarily on considerations of a preventative, rather than

punitive character: the Commission notes in this context the comments

of the trial judge in this case with regard to the dangerousness of the

applicant.

54. The Commission recalls that the applicant was sentenced at the

age of 16 and has spent 16 years in prison - half of his life and a

significant part of his adolescence and young adulthood. The element

of his sentence attributed to the purpose of retribution has expired

and consideration of risk and dangerousness would appear to be

determining factor in his continuing detention. Since, therefore,

issues may arise with the passage of time relating to the justification

for the applicant's continued detention, the Commission finds that he

is entitled under Article 5 para. 4 (Art. 5-4) to have the lawfulness

of that detention decided by a court.

2. Compliance with the requirements of Article 5 para. 4

(Art. 5-4)

55. The applicant submits that the procedure for release on licence

of detainees at Her Majesty's pleasure does not satisfy the

requirements of Article 5 para. 4 (Art. 5-4) since the Parole Board,

save immediately after recall, is unable to order release, the ultimate

decision resting with the executive. An applicant also has no right to

an oral hearing before the Board or to call his own witnesses or to

question witnesses against him.

56. The Government have made no submissions on the point, taking the

view that the requirements imposed by Article 5 para. 4 (Art. 5-4) as

to the supervision of lawfulness of the applicant's detention were

satisfied by the original trial and appeal procedure.

57. The Commission recalls that the Court in the Weeks and Thynne,

Wilson and Gunnell cases (loc. cit. above) found that neither the

Parole Board (pre-1992) nor the possibility of judicial review

satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the

Convention in respect of prisoners serving terms of discretionary life

imprisonment. The Court held in the Weeks case (loc. cit.) that the

Parole Board which could only recommend release lacked the necessary

power of decision. Further, in view of the failure to provide prisoners

with full disclosure of the adverse material before the Board the

procedures did not allow the proper participation of the person

adversely affected by the contested decision and could not be regarded

as judicial in character. It did not find it necessary to rule on

whether an oral hearing would be required.

58. The Commission has found above that when considering whether to

recommend the release of a person detained at Her Majesty's pleasure

the Parole Board is dealing with issues relating to the lawfulness of

a deprivation of liberty of an individual. In this context, the `court'

required by Article 5 para. 4 (Art. 5-4) should have the power to order

release and it is essential that the procedures followed should afford

proper guarantees that enable an individual to participate effectively

in the proceedings before it (see eg. Eur. Court H.R., Winterwerp

judgment of 24 October 1979, Series A no. 33 at p. 24, para. 60). Where

questions arise involving, for example, the assessment of character or

personal attitudes, it may be essential for the proper and fair

examination of the issues that the detained person be given the

opportunity to participate in an oral hearing and, if there are

disputed issues of fact, the possibility to have witnesses examined and

cross-examined and their credibility established in person (see mutatis

mutandis Eur. Court H.R., Kremzow judgment of 21 September 1993,

Series A. 268-B at p. 16, para. 67).

59. The Commission notes that, since October 1992, a new Parole Board

has been instituted which has the power to make decisions and which

pursuant to its rules has the power to hold oral hearings. Introduced

in view of the findings of the Court with regard to discretionary life

prisoners, these changes do not however apply to other categories of

prisoner. The Parole Board as it presently functions in respect of the

applicant still has no decision-making power. Its procedure has however

been modified pursuant to the case of Prem Singh (see paras. 33-34

above) to provide for the disclosure of the documents before the Parole

Board. There is no provision for oral hearing or for examination and

cross-examination of witnesses.

60. Consequently, the Commission finds that the applicant does not

have the possibility of obtaining a review of the lawfulness of his

continued detention before a body satisfying the requirements of

Article 5 para. 4 (Art. 5-4) of the Convention.

Conclusion

61. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention.

D. Article 14 (Art. 14) of the Convention

62. Article 14 (Art. 14) of the Convention provides:

"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."

63. The applicant submits that he is irrationally discriminated

against on the basis of his status as a person convicted of murder,

because the review procedures governing continued detention of

individuals sentenced to discretionary life sentences are not subject

to the same restrictions as those governing the applicant's detention.

64. In view of its conclusion in para. 60 above, the Commission does

not consider it necessary to examine the complaint that the applicant

suffered discrimination contrary to Article 14 (Art. 14) (cf. mutatis

mutandis eg. Eur. Court H.R., Beldjoudi judgment of 26 March 1992,

Series A no. 234-A, p. 29, para. 81).

Conclusion

65. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 14 (Art. 14)

in conjunction with Article 5 para. 4 (Art. 5-4) of the Convention.

E. Recapitulation

66. The Commission concludes, unanimously, that there has been a

violation of Article 5 para. 4 (Art. 5-4) of the Convention (para. 61).

67. The Commission concludes, unanimously, that it is not necessary

to examine whether there has been a violation of Article 14 (Art. 14)

in conjunction with Article 5 para. 4 (Art. 5-4) of the Convention

(para. 65).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

31.03.93 Introduction of the application

27.05.93 Registration of the application

Examination of admissibility

06.07.93 Commission's decision to invite the parties to

submit observations on the admissibility and

merits

06.10.93 Government's observations

01.12.93 Applicant's reply

21.01.94 Commission's grant of legal aid

05.04.94 Commission's decision to invite the parties to

an oral hearing

16.06.94 Applicant's further submissions

30.06.94 Hearing on admissibility and merits

30.06.94 Commission's decision to declare the application

admissible

Examination of the merits

30.06.94 Commission's deliberations

26.07.94 Government's observations on the merits

11.10.94 Commission's deliberations on the merits, final

votes and adoption of the Report

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HUSSAIN v. United Kingdom

HUSSAIN v. United Kingdom

LEXI