The European Commission of Human Rights sitting in private on

13 October 1986, the following members being present:

                    MM. C.A. NØRGAARD, President

                        J.A. FROWEIN

                        F. ERMACORA

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                       G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                       H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        J. CAMPINOS

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                    Mr. F. MARTINEZ

                    Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 (art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 25 April 1984 by N.

against the United Kingdom and registered on 9 August 1984

under file No. 11077/84;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted on behalf of the applicant, a citizen of the

United Kingdom born in 1961 and currently detained in H.M. Prison

Dungavel in Lanarkshire, Scotland, by his legal representative

Mr. Peter Ashman of Justice, may be summarised as follows:

On 28 March 1977 the applicant was convicted of attempted murder by

the High Court of Justiciary in Glasgow and was sentenced pursuant to

Section 206 of the Criminal Procedure (Scotland) Act 1975

("the 1975 Act") to nine years detention.  The judge when sentencing

him stated:

"Were you older than you are and were your personal history not such

as it is the sentence which I would impose for your detention would be

very much greater and longer than the one I am going to impose but

being as lenient as I can be in all the circumstances, bearing in mind

that the public must be protected from people who are prepared to

indulge in the sort of attack in which you indulged I shall order you

to be detained for a period of 9 years in such institution as the

Secretary of State may determine."

Section 206 (2) of the 1975 Act provides:

"Where a child is convicted and the court is of the opinion that none

of the other methods of dealing with the child is suitable, the court

may sentence him to be detained for such period as may be specified in

the sentence; and where such a sentence has been passed, the child

shall during that period be liable to be detained in such place and on

such conditions as the Secretary of State may direct."

The applicant was a child (aged 15) at the commencement of his

sentence and is therefore not entitled to remission pursuant to

Section 206 (2).  He was reviewed for parole by the Secretary of State

for three years from 1980-83, with no recommendation for release.

However, in March 1984 the Secretary of State accepted a

recommendation of the Parole Board that, subject to satisfactory

completion of six months in an open establishment and six months

"training for freedom", he should be released on licence in March 1985

under supervision until his sentence ended on 27 July 1986.

The applicant complains that, due to his age at the time of arrest and

trial and the location of such arrest, he has been denied the

possibility of remission pursuant to the provisions of Section 206 (2)

of the 1975 Act.

Remission and parole (or licence as it is known in relation to young

offenders in Scotland) are totally distinct concepts. Remission,

although expressed by the legislation to be a discretionary power

vested in the Secretary of State, is in practice automatically

credited to every prisoner who is eligible for it.  At the outset of

his sentence every such prisoner is given an estimated date for

release which is calculated by reference to the maximum possible

remission, and he will be released on that date unless remission has

been forfeited in disciplinary proceedings.

Rule 37 of the Prison (Scotland) Rules 1952 ("the Rules"), as amended,

provides that remission may be granted to a prisoner "on the ground of

his industry and good conduct".  Remission can only be lost as a

punishment for breach of the Prison Rules.  In the event of such a

breach the Governor of the prison or the Board of Visitors sitting as

a disciplinary tribunal may order loss of remission according to

scales laid down in the Rules.  Remission cannot be taken from a

prisoner without a hearing before the disciplinary body at which the

evidence against him or her is presented and he or she will have an

opportunity to call evidence and witnesses to rebut the charge.  The

rules of natural justice are considered to apply to such proceedings

and a prisoner may be legally represented.

Once a prisoner is released on remission his prison sentence is at an

end.  He cannot be returned to prison to serve the remaining third of

his sentence or any part of it.

Parole (or licence) is a form of conditional release.  A prisoner is

not entitled to parole, he is merely eligible to be considered for it.

In respect of a young offender sentenced pursuant to Section 206 of

the 1975 Act, the Secretary of State may at any time release him on

licence.  However, if the young offender has been sentenced to a term

of imprisonment exceeding 18 months, the Parole Board must have first

recommended release on parole.  The decision to recommend release does

not depend solely on a prisoner's "good industry and conduct" and on

his avoiding any breach of the Prison Rules as is the case with

remission.  Instead, many factors are considered when deciding whether

or not a prisoner should be released on parole all of which are

personal to the particular individual under consideration.  These

factors include the individual's home circumstances, the personality

of the offender, the nature of the offence, the degree of remorse

shown for the offence and the likelihood of the individual

reoffending.  A prisoner does not see the report prepared by the

Parole Board concerning his or her application. Neither will he or she

have sign of any information supplied to the Board by third parties.

Parole is frequently refused (statistics show that in 1979 only 30 per

cent of the applications for parole made by eligible young offenders

in Scotland were granted), and in the event of such a refusal the

Parole Board will not indicate its reasons.

If a prisoner is granted parole he continues to serve his sentence

throughout his period of release.  He may be recalled to prison for

breach of any of the conditions of his parole licence, and these

conditions can be very general in nature.  One typical condition is

that the holder of the licence "shall be of good behaviour and lead an

industrious life".  Conditional release on parole continues until the

estimated date for release which is the sentence fixed by the court

less any remission to which the prisoner is entitled.

COMPLAINTS

Article 7 (art. 7) in conjunction with Article 14 (art. 14)

The applicant complains that the practical consequence of the Scottish

legislation in relation to young offenders is that a heavier penalty

was effectively imposed upon him because of his age and his place of

residence in Scotland than was applicable at the time the criminal

offence was committed.  Had the applicant been an adult prisoner he

would have been entitled to remission of one third of his sentence.

Alternatively, had he been a child convicted and sentenced in England

and Wales he would have been entitled to remission of one half of his

sentence.

Article 5 (art. 5) in conjunction with Article 14 (art. 14)

The applicant complains that the fact that people convicted as a child

in Scotland are not eligible for remission (in contrast with people

convicted as a child in England and Wales) means that he suffers

discrimination in the enjoyment of his right to liberty, and

consequently that that part of his sentence for which he cannot get

remission is unlawful under the Convention.

The applicant contends that the distinctions between people convicted

as a child in Scotland and those in England and Wales, have no

objective or reasonable justification either in relation to the nature

of the offence or the method of treatment.  Nor can any such

justification be found as regards the different legal systems since in

both the Scottish legal system and that in effect in England and Wales

judges are enjoined from considering questions of remission and parole

when fixing the appropriate sentence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on behalf of the applicant on

25 April 1984 and registered on 9 August 1984.

The Commission first examined the question of admissibility on

14 December 1984 and decided to invite the Government to submit

observations on the admissibility and merits of the application with

regard to Articles 5 and 14 (art. 5, art. 14) of the Convention.  The

Government submitted their observations on 1 May 1985, after an

extension of four weeks had been granted.  The applicant submitted his

observations in reply on 7 June 1985 and the Government sent further

observations on 1 August 1985.

Following further information from the applicant concerning his

conditions of detention, the Commission decided on 4 March 1986 to

invite the parties to submit further observations.  Supplementary

observations were submitted by the Government on 12 May 1986 and by

the applicant on 13 June 1986.

SUMMARY OF THE PARTIES' OBSERVATIONS

A. The Government

a. Domestic law and practice

The type of custodial sentence imposed by the court in Scotland

differs according to the age of the accused.  Under the common law,

imprisonment is imposed on those over 21, the sentence being served in

prison.  By Section 207 and Section 413 of the Criminal Procedure

(Scotland) Act 1975 ("the 1975 Act") it is provided that imprisonment

may not be imposed on those under 21.  Instead, a person between the

age of 16-21 may receive a sentence of detention. This sentence is

normally served in a detention centre for a period of 28 days to 4

months, otherwise in a young offenders institution.

Under Section 206 of the 1975 Act a child, i.e. a person under 16, may

be sentenced to be detained in such a place as the Secretary of State

may direct.  There is a similar power under Section 413, which deals

with summary offences:  Section 206 covers offences dealt with by

jury.

The Secretary of State has complete discretion as to the establishment

in which an offender is detained and as to the regime to which he is

subject.  A person serving this type of sentence will continue to do

so on reaching the age of 16 or 21:  it does not then become a

different type of sentence.

Children sentenced under Section 206 or Section 413 are usually sent

to "List D" schools, residential schools run by local authorities or

voluntary organisations and on occasion to young offenders

institutions.  A person in effect will be sent to the school or

institution which seems most appropriate to the circumstances.  If a

person is still serving a sentence at 18, he will normally be

transferred to a young offenders institution and if, in an unusual

case, such a person is still serving a sentence at 21, he would

probably be transferred to a prison.

Children are rarely sentenced under Section 206.  In most cases, where

children have committed offences, they are dealt with in "children's

hearings", under the Social Work (Scotland) Act 1968. Where necessary,

a supervision requirement may be imposed on such a child.  This may

include detention in a named residential establishment, which could be

an ordinary children's home or, in most cases, a "List D" school.

Only 10% of the 770 children in "List D" schools are detained under

Section 206 or Section 413.

Remission

Remission of sentence is available to persons sentenced to

imprisonment or to detention in a young offenders institution or

detention centre.  It is not available to persons sentenced under

Section 206 or Section 413, since such sentences are neither sentences

of imprisonment nor of detention in a young offenders institution.

Persons sentenced under Section 206 are normally subject to the regime

of the institution in which they are held, whether "List D" school,

young offenders institution or prison.  If they are held in a young

offenders institution or prison, the general provisions of the Young

Offenders (Scotland) Rules 1965 (S.I. 1965/195 as amended by S.I.

1981/1223) or the Prison (Scotland) Rules 1952 (S.I. 1952/565 as

amended by S.I. 1981/1222) will apply to them.  However, since a

Section 206 sentence is not a sentence of imprisonment or detention in

a young offenders institution or detention centre, rules on remission

can have no application.

In "List D" schools, there is no system of remission. Children sent

from "children's hearings" are subject to appropriate programmes of

care and supervision, and are not being punished.  Such schools are

educational rather than correctional establishments and though persons

are kept there compulsorily, they are open establishments and do not

normally have secure accommodation.  The time spent depends on the

needs of the child and is subject to review at the request of the

child, his parents, or the local authority.

Remission has not been applied to Section 206 offenders for two

reasons.  Firstly, the concept of remission is not known in "List D"

schools, where most Section 206 offenders are sent.  It would not be

desirable to introduce such a system into this environment and thereby

create different disciplinary regimes.  Therefore, since Section 206

offenders held in "List D" schools do not receive remission, it is not

thought appropriate to extend remission to those Section 206 offenders

who are in prison or young offenders institutions:  to do otherwise

would create a difference in treatment according to where a person was

held.

The second reason is that remission is considered too rigid a system

in Section 206 cases.  Persons sentenced as children may change

considerably in the course of their sentence.  Continuous assessment

and conditional release on licence is considered a more flexible and

desirable system.

Release on licence

Licence is completely separate from the concept of remission. It is

always at the discretion of the Secretary of State and may be revoked,

where it is expedient in the public interest.

For persons serving a term of imprisonment or detention in a young

offenders institution or detention centre, release on licence is

possible after 12 months or a third of the sentence being served,

which ever is the latest:   Part III of the Criminal Justice Act 1967.

The 1967 Act does not apply to Section 206 offenders.  Licence in

these cases is provided for by Section 206 (2)-(7) of the 1975 Act.

For persons sentenced under Section 206 serving sentences of over 18

months, the Secretary of State legally can release on licence only on

the recommendation of the Parole Board.  The Secretary of State first

reviews the case to see if it is suitable for consideration by the

Parole Board with a view to release on licence. Legally this review

could be undertaken at any time, since there is no requirement that a

person must have served 12 months or one-third of his sentence.

Howewer the administrative practice which has grown up is that the

review is only undertaken some months before the person has served

one-third of his sentence or one year, whichever is later. This of

course is the same time as the first review in the case of persons

sentenced to imprisonment or detention in a young offenders

institution.

The review by the Secretary of State, as in other cases, is based on

the whole circumstances, including reports on progress from the

institution.  The person concerned can make representations. Where the

person sentenced under Section 206 is held in an institution which has

a local review committee it assists the Secretary of State in making

the review, though it is not legally required to do so.  In practice

all such cases are referred to the Parole Board.  This differs

markedly from the practice as regards persons sentenced to

imprisonment or detention in a young offenders institution, where a

substantial proportion of cases are not referred to the Parole Board.

Most of these cases are referred because the Secretary of State

thinks, subject to the views of the Board, that the person concerned

is suitable for consideration for release on licence.  In a small

number of cases, however, the reference is made "for information

only".  These words do not preclude the Board from considering the

case and making a recommendation: they simply indicate that the

Secretary of State is not satisfied that the person concerned is

suitable for release on licence, but nonetheless thinks that the Board

should have the opportunity to consider the case.

The Parole Board considers the case and makes a recommendation on

suitability for release on licence and the date when this should be

done.  Where release is recommended, the final decision is for the

Secretary of State, but a decision not to release would be extremely

rare.  When the Parole Board does not recommend release, this process

is repeated each year.  In some cases, more frequently than in the

case of persons sentenced to imprisonment or detention in a young

offenders institution, the Parole Board suggests a further review in

less than a year and this is done.

Practice in the case of persons sentenced under Section 206 serving

sentences of over 18 months is very much more favourable to release

than practice in the case of persons serving sentences of imprisonment

or detention in a young offenders institution who have become eligible

for consideration for parole by completing one-third of their sentence

or one year (whichever is later).

b. Admissibility and merits

Article 5 (art. 5) in conjunction with Article 14 (art. 14)

i. Discrimination based on geographical location

The Government submits that there has been no discrimination of the

type envisaged by Article 14 (art. 14).  Article 14 (art. 14) is

concerned with discrimination on grounds personal to the applicant.

In this case, any differences in treatment compared to offenders in

England and Wales is based solely on objective grounds i.e. that the

offence was committed in Scotland and the Scottish courts had

jurisdiction and applied Scots law.

The Government reminds the Commission that the United Kingdom contains

three separate systems of law, in Scotland, England and Wales, and

Northern Ireland, which for most purposes function as separately as

the systems in different States.  The Government submits that where

there are such different systems, it is sufficient for Article 14

(art. 14) that each system allows people to exercise their rights

under the Convention without any discrimination under that system. The

argument of the applicant would logically require the complete

harmonisation of the criminal law systems of the three areas.

The Government states that in England and Wales there is a comparable

provision to Section 206.  Section 53 (2) of the Children and Young

Persons Act 1933 provides:

"Where a child or young person is convicted on indictment of any

offence punishable in the case of an adult with imprisonment for

fourteen years or more, not being an offence the sentence for which is

fixed by law, and the court is of the opinion that none of the other

methods in which the case may legally be dealt with is suitable, the

court may sentence the offender to be detained for such period not

exceeding the maximum term of imprisonment with which the offence is

punishable in the case of an adult as may be specified in the

sentence; and where such a sentence has been passed the child or young

person shall, during that period be liable to be detained in such

place and on such conditions as the Secretary of State may direct."

This provision applies to children and young persons between the ages

of 10 and 17.  The most significant difference with Section 206 is

that Section 53 (2) applies only to very serious offences.  It is

denied that Section 53 (2) offenders obtain remission wherever they

are held.  Whether in a custody centre, prison or institutions run by

the local authority, such offenders are not eligible for remission.

Remission is only available if a person over 14 is sentenced

specifically to a youth custody centre or detention centre, which are

sentences to be served in a particular type of penal institution.  As

in Section 206 cases, persons sentenced under Section 53 (2) are

eligible for release on licence throughout their sentence.

ii. Discrimination based on age

The Government questions whether age is a ground of discrimination

under Article 14 (art. 14).  The law cannot be expected to treat

children, adolescents and adults in the same way, particularly in the

penal area.

If Article 14 (art. 14) is applicable, the Government would argue that

there is an objective and reasonable justification for any difference

in treatment i.e. the need for flexibility in sentencing children, so

that they can be sent to the institution which most suits their

circumstances.  Remission is not appropriate or desirable in those

cases.

The Government further denies that if the applicant had been older

when sentenced, he would only have been detained for 2/3 of his

sentence.  The judge could well have imposed a longer sentence, and

indeed indicated he would have done so, if the applicant had been

older.  The Government also disagrees that a Scottish court is unable

to take into account the availability of remission in determining the

appropriate length of sentence.  Further, it cannot be assumed that

the applicant would have obtained full remission, even if he had been

eligible for remission.

The Government therefore submits that the claim of discrimination has

not been made out in fact.

B. The Applicant

a. Domestic law and practice

The majority of pupils in "List D" schools are children in need of

care.  Thus, the schools are not penal institutions and those residing

there, including Section 206 offenders, are not subject to a penal

regime.  Those persons sentenced under Section 206, who are not

detained for purposes of educational supervision, are placed in young

offenders institutions or prisons and subjected to the regime of such

institution.  It is semantic to argue that a Section 206 offender

detained in such circumstances is not serving a prison sentence or

sentence of detention in a young offenders institution, merely because

by statute, such types of sentence are not applicable to persons

sentenced when under 16.

The only difference in treatment between Section 206 offenders

detained in a prison or young offenders institution and other

detainees in those establishments is that the Section 206 offenders

receive no remission and are eligible for release on parole at an

earlier date.

While the applicant agrees that Section 206 offenders can be released

on parole at any time, there is no right to such conditional release

guaranteed under the domestic law or the Convention.  A prisoner is

considered on his own merits in an administrative process to which the

safeguards of Article 6 (art. 6) do not apply.  Since April 1981, 29%

of Section 206 detainees were refused parole and obliged to serve

their complete sentence.  The applicant has received no actual

advantage over any other prisoner from the possibility of parole

before he served a third or twelve months of his sentence.  He was

first considered for release on parole only after serving one-third of

sentence, as is the practice with other categories of prisoners.

Therefore the existence of this possibility can have no relevance.

Remission where applicable however is automatic, save where a period

is forfeited in a disciplinary hearing or judicial proceedings. It is

available to those serving sentences of imprisonment and to those

between the ages of 16-21 sentenced under Section 207 and Section 415

of the 1975 Act to detention in young offenders institutions or

detention centres.  Remission is final and cannot be revoked.

The applicant disputes the Government's contention that judges in

England, Wales and Scotland may take the possibility of remission into

account in fixing sentence.  In England and Wales, the leading

authority R. v. Maguire and Enes (1956) 40 Cr. Rep. 92 makes

it clear the court should not do so.  While there is no direct

authority on this point in Scotland, the leading textbook, "The Law

and Practice of Sentencing in Scotland" by Sheriff Nicholson, a

leading Scottish criminal judge, states that it is improper for a

judge to take remission into account in determining sentence.

b. Admissibility and merits

Article 5 (art. 5) in conjunction with Article 14 (art. 14)

i. Discrimination based on geographical location

The applicant submits that while separate systems of law are

permissible under the Convention, a State is nonetheless obliged to

ensure everyone in its territory enjoys Convention rights equally,

without discrimination in the degree of protection.  Any difference in

treatment between the separate legal systems must be compatible with

the United Kingdom's overriding obligations under the Covention.

The applicant accepts the Government's explanation of the situation in

England and Wales, and that Section 53 (2) detention is largely the

same as Section 206.  However, the applicant points out that those

ordered to be detained in a detention centre before 24 May 1983 under

the age of 17 remain eligible for remission of half that sentence,

rather than a third (Rule 6 (2)(a) of 1983 Detention Centre Rules).

The applicant cites the case of R. v. Fennell (8 March 1985) in which

Lord Chief Justice makes it clear that detention under Section 53 (2)

is aimed primarily at punishment, although detention can be ordered in

non-penal institutions.  The applicant maintains that detention under

Section 206 is largely  similar and also primarily aimed at

punishment.

ii. Discrimination based on age

The Section 206 type of sentence depends solely on the age at which an

offence is committed but its consequences continue throughout the

sentence, regardless of age or personal circumstances.  While, as in

the applicant's case, the conditions of detention can be identical

with other categories of offenders, the Section 206 offender suffers

the disadvantage of no remission for no reasons personal to themselves

but solely on account of the chance fact of their age when the offence

was committed.

The applicant argues that it is clear from Convention case-law that

"birth" applies to legal status:  see MARCKX v. Belgium (Eur. Court

H.R., Marckx judgment of 13.6.1979, Series A no. 32).  In Application

No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66, discrimination in age in

the fixing of the level of criminal liability in the context of the

right to private life was held to be justified for the protection of

the rights and freedoms of others:  Article 8 para. 2 (art. 8-2).  No

such exceptions exist under Article 5 (art. 5) and discrimination can

only be justified under the jurisprudence concerning Article 14 (art.

14).

Alternatively, the applicant argues that age must be included in the

concept of "other status".  The French text uses the phrase "toute

autre situation" which suggests a wide meaning to the concept.

The applicant denies that there is any objective or reasonable

justification for treating the applicant differently from those

sentenced over 16 in respect of remission, and submits that the

differences of treatment are disproportionate to the aims sought to be

achieved, for the following reasons:

1. the age at which an offender is sentenced is a matter of

chance;

2. the applicant has at all times since his conviction been

subject to the same penal measures and penal regime as those aged 16

or over;

3. an offender aged 16 or over who received the same sentence as

the applicant on the same day for the same offence would have been

granted unconditional release three years earlier than the applicant;

4. the possibility of earlier conditional release cannot be

equated with lack of remission;

5. the difference in regime between Section 206 offenders held in

"List D" schools and those held in penal institutions make them

completely different in character so as to justify different rights

under Article 5 (art. 5) ;

6. the Government suggests that the nature of the applicant's

detention was based on the need for continuous assessment.  If so, the

situation is analogous to that described by the Court in the Van

Droogenbroek case (Eur. Court H.R. Van Droogenbroek judgment of

24.6.82, Series A no. 50) i.e. "monitoring the development of the

offender's personality and behaviour in order to adapt his situation

to favourable or unfavourable changes ... ".

In that case the Court held that the nature of the detention was

material for determining whether the Convention requires judicial

review of the sentence at regular intervals under Article 5 para. 4

(art. 5-4) and that such type of detention did require judicial

review.  The applicant submits therefore if absence of remission is

justified on the ground that this enabled his personality  changes to

be monitored, then he should have been able to have his detention

reviewed by a court at regular intervals.  No such review is available

in Scotland.

THE LAW

1. Article 7 (art. 7) in conjunction with Article 14 (art. 14)

The applicant complains that the practical effect of Scottish

legislation in relation to child offenders amounts to imposing a

heavier penalty than that applicable at the time when the offence was

committed.

It is true that Article 7 (art. 7) guarantees to everyone charged with

a criminal offence that no heavier penalty should be imposed than the

one applicable at the time the offence was committed.

However, it is clear that the relevant legislation in force at the

date of commission of the offence by the applicant authorised the

length of sentence which he received and the non-availability of

remission.

It follows that this part of the application is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (art. 27-2) of the Convention.

2. Article 5 (art. 5) in conjunction with Article 14 (art. 14)

The applicant complains that he has suffered discrimination in the

enjoyment of his right to liberty, since children in England and

Wales, and adults in both jurisdictions are entitled to remission.

Article 5 (art. 5) of the Convention provides that:

"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; ... "

Article 14 (art. 14) of the Convention provides that:

"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."

The case-law of the Commission shows that complaints concerning the

length of sentence passed after due process of law by a judge in

possession of the facts do not generally fall within the scope of the

Convention (Application Nos. 5871/72, Dec. 30.9.74, D.R. 1 p. 54,

7057/73, Dec. 13.5.76, D.R. 6 p. 127 and 8224/78, Dec. 5.12.78,

D.R. 18 p. 100).

However, where a settled sentencing policy appears to affect

individuals in a discriminatory fashion, the Commission is of the view

that this may raise issues under Article 5 (art. 5) read in

conjunction with Article 14 (art. 14).

a. Discrimination based on age

The Commission recalls its constant case-law to the effect that age

may constitute a "status" under Article 14 (art. 14), e.g. X. v. the United

Kingdom, Application No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66 and

DUDGEON v. the United Kingdom, Application No. 7525/76,

Dec. 3.3..1978, D.R. 11 p. 117.

However, it is clear that not every difference in treatment in respect

of one of the rights and freedoms contained in the Convention is

forbidden by Article 14 (art. 14).  The Commission must first consider

whether the difference has an objective and reasonable justification

taking into consideration the aim and effect of the measure in

question, having regard to the principles which normally prevail in

democratic societies and second, whether there is a reasonable

relationship of proportionality between the means employed and the

aims sought to be realised.

The penal law of a State Party obviously cannot be expected to treat

child and adult offenders in the same way.  The absence of remission

for child offenders sentenced under Section 206 must therefore be

looked at in the particular context of sentencing such persons to

detention.  The Commission accepts that persons sentenced at such an

early age may change greatly in the course of their sentence and that

flexibility is an important prerequisite in the rules governing their

detention.  The Government states that it seeks to achieve this

flexibility under this legislation by allowing the Secretary of State

to decide the type of institution to which an offender may be sent,

and by permitting release on licence at all stages of sentence, where

suitable.  The Commission recalls that in this case the applicant was

considered for parole on a yearly basis from 1980-83 and that in

March 1984, the Secretary of State accepted the recommendation of the

Parole Board that he be released on licence in March 1985 after

completing satisfactorily six months in an open institution and six

months "training for freedom".  The fact that the applicant did not

benefit from earlier release on licence does not, in the Commission's

view, detract from the distinctive nature of this regime of detention

which is geared to deal more flexibly with child offenders.

The Commission also recalls that it has not been made out whether in

fact the applicant would have benefited from being sentenced above the

age of 16, even with remission applying to such sentence.  The judge

in sentencing him made it clear that if the applicant had been older

his sentence would have been considerably heavier.

On examination of the complaint as it has been submitted therefore,

the Commission considers that any difference in treatment finds

objective and reasonable justification in the different considerations

which apply in the sentencing of children and in the respondent

Government's policy to maintain flexibility in dealing with the

detention of child offenders.  The absence of remission in this scheme

of detention is not such as to make the difference disproportionate.

It follows that this part of the application must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2

(art. 27-2).

b. Discrimination based on geographical location

The applicant also complains that he is subject to discriminatory

treatment in that children sentenced in England are entitled to

remission, whereas those sentenced in Scotland are not so entitled.

The Commission recalls however that Article 14 (art. 14) of the

Convention protects the enjoyment of rights and freedoms of the

Convention from 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".

The applicant's complaint concerns the differences in the penal

legislation of two regional jurisdictions within the United Kingdom.

The Commission finds that any difference in treatment concerning

release on remission which results from these regional differences is

not related in any way to the personal status of the applicant.  The

Commission accordingly concludes that the discrimination complained of

in this part of the application does not fail within any of the

grounds specified in Article 14 (art. 14) of the Convention.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission                President of the Commission

(H.C. KRÜGER)                              (C.A. NØRGAARD)