Lexploria

Application No. 29193/95

by Robert COMERFORD

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 July 1995 by

Robert COMERFORD against the United Kingdom and registered on

9 November 1995 under file No. 29193/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

24 June 1997 and the observations in reply submitted by the

applicant on 13 January 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1964 and currently

serving a sentence of detention at Her Majesty's pleasure at HM Prison

Elmley, Sheerness. He is represented before the Commission by

Messrs. B. M. Birnberg & Co., solicitors practising in London.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In 1980, the applicant then aged 16 was convicted of murder and

sentenced to be detained at Her Majesty's pleasure. He was released

on licence in 1986.

In 1988, the applicant was arrested and charged with a number of

offences including burglary. On 13 July 1988, he was sentenced on a

guilty plea to 15 months' imprisonment. The trial judge did not revoke

the applicant's licence.

On 26 July 1988, following the recommendation of the Parole

Board, the Secretary of State revoked the applicant's licence pursuant

to section 62 of the Criminal Justice Act 1967. On 18 November 1988,

the Parole Board rejected the applicant's written representations

against the revocation of his licence.

In May 1990, the applicant's case was reviewed by the Parole

Board who recommended that the applicant be transferred from a Category

C (closed) to a Category D (open) prison. The Parole Board's

recommendation was accepted by the Secretary of State who directed that

the applicant's case should be reviewed again in 18 months.

That review was deferred as a result of a series of breaches of

prison rules by the applicant. When the applicant's case was

eventually reviewed in April 1993, the Parole Board recommended his

release on licence provided the applicant first spend six months in a

hostel providing a pre-release employment scheme. Before the Parole

Board's recommendation came before the Secretary of State, the

applicant in breach of prison rules returned late from his work

placement in consequence of which the Parole Board's recommendation was

not implemented. Instead the Secretary of State, in or about October

1993, directed that the applicant's case should be reviewed again in

12 months.

Prior to that review the applicant again returned late from his

work placement in consequence of which he was transferred from a

Category D to a Category C prison.

A further review was initiated in September 1994 in which the

applicant sought a recommendation from the Parole Board that he be

transferred from a Category C to a Category D prison. Although the

Parole Board recommended that the applicant be transferred to Category

D prison, this recommendation was not, however, accepted by the

Secretary of State who, on 28 November 1995, directed that the

applicant be transferred to another Category C prison pending a further

review to be initiated by the Parole Board in September 1996.

The subsequent review of the applicant's detention was carried

out on 26 February 1997 in accordance with the interim arrangements

under the Crime (Sentence) Act 1997 put in place following the Court's

judgments in Hussain and Singh (Eur. Court HR, Hussain v. the United

Kingdom judgment of 21 February 1996 and Singh v. the United Kingdom

judgment of 21 February 1996, Reports 1996-I p. 252 and 280). The

Secretary of State followed the recommendation of the Parole Board that

the applicant be transferred to open prison conditions. A second review

is expected in February 1999.

COMPLAINTS

1. The applicant complained that he was not able, either on his

recall to prison following the revocation of his life licence or

thereafter during the currency of his continued detention, to take

proceedings satisfying the requirements of para. 4 of Article 5 of the

Convention.

2. The applicant further complained that a test which requires the

Parole Board to be satisfied that the applicant does not continue to

represent any risk to the life or limb of the public before

recommending his release following re-detention is too onerous and such

as to constitute a violation of para. 1 (a) of Article 5 of the

Convention. The applicant submitted that the Parole Board should

recommend release unless it is established that he continues to

represent a risk to the life or limb of the public.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 3 July 1995 and registered on

9 November 1995.

On 9 April 1997 the Commission decided to communicate the

applicant's complaint concerning Article 5 para. 4 to the respondent

Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on 24 June

1997, after an extension of the time-limit fixed for that purpose. The

applicant replied on 13 January 1998, also after an extension of the

time-limit. In this letter, the applicant's representatives informed

the Commission that the applicant had obtained a review under the

interim administrative arrangement set up following the Court's

judgments in Hussain and Singh (Eur. Court HR, Hussain v. the United

Kingdom judgment of 21 February 1996 and Singh v. the United Kingdom

judgment of 21 February 1996, Reports 1996-I, pp. 252 and 280) and that

a follow up review had been fixed. They also stated that they now

accepted that the applicant had been accorded his full legal rights

under the new arrangements.

By letter dated 16 January 1998, the Secretariat requested the

applicant's representatives to clarify by 30 January 1998 whether they

intended to withdraw the application. No response was received. By

letter dated 13 February 1998, the Secretariat warned the applicant's

representatives that in the absence of any response by 6 March 1998,

the Commission might proceed to strike the case from the list. No

response was received.

REASONS FOR THE DECISION

The Commission recalls that by letter of 13 January 1998 the

applicant's representatives informed the Commission that the applicant

had received a review of his detention under the interim administrative

arrangements, that a follow up review had been fixed and that they

accepted that the applicant had now been accorded his full legal rights

under the new arrangements. The Commission notes that the applicant's

representatives have since failed to respond to two letters from the

Secretariat and that they have been warned that the case might be

struck from the list of cases.

In light of these events, and in particular, the applicant's

representatives acceptance that the applicant is satisfied with the

review now provided under the interim administrative arrangements, the

Commission finds that the matter which has been the subject of the

application has been resolved within the meaning of Article 30

para. 1 (b) of the Convention. The Commission, furthermore, having

regard to Article 30 para. 1 in fine, finds no special circumstances

regarding respect for human rights as defined in the Convention which

require the continuation of the examination of the application.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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COMERFORD v. THE UNITED KINGDOM

COMERFORD v. THE UNITED KINGDOM

LEXI