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AS TO THE ADMISSIBILITY OF

Application No. 39047/97

by Abdul Quayyam RAJA

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 20 May 1998, the following members being present:

MM. E. BUSUTTIL, Acting President

N. BRATZA

A. WEITZEL

C.L. ROZAKIS

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 8 April 1997 by

Abdul Quayyam RAJA against the United Kingdom and registered on

19 December 1997 under file No. 39047/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1956 and currently

serving a sentence of life imprisonment in Long Lartin prison, Evesham.

Before the Commission, he is represented by Mr. Idris Mir, a solicitor

practising in Bradford.

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

summarised as follows.

In February 1985, the applicant pleaded guilty to the false

imprisonment of an Indian diplomat. The diplomat, who had been

kidnapped and held hostage by the Jammu and Kashmir Liberation Front

in order to be exchanged for a Kashmiri freedom fighter held in India,

had been killed. The applicant was tried on a murder charge and

convicted by the jury. The prosecution case had been that the

applicant, a lesser member of the conspiracy, had been present at the

time the murder was carried out by one of the leaders of the

conspiracy.

In sentencing, the judge acknowledged that the applicant's role

in the conspiracy was a lesser one. He sentenced the applicant to

eighteen years' for false imprisonment. In respect of the mandatory

sentence of life imprisonment imposed for the murder charge, the judge

made no recommendation as to the minimum time that should be served.

On appeal, the Court of Appeal on 6 December 1985 reduced his sentence

on false imprisonment to 15 years.

In August 1988, the applicant was informed by the prison

authorities that his first Local Review Committee review would be in

2001, after he had served 17 years but he was told that this should not

be taken as implying that twenty years has been set as the tariff

period necessary to meet the requirements of retribution and deterrence

in this case.

In June 1993, the applicant applied for judicial review to

challenge the length of his tariff and establish his right to know the

advice the Secretary of State had received from the judiciary before

fixing the tariff as well as any other relevant factual matters.

Following the House of Lords' decision in the case of R. v. Secretary

of State ex parte Doody (1992 3 AER 92), the proceedings terminated on

28 July 1993, with the Secretary of State undertaking to disclose the

length of the existing tariff and the substance of any judicial advice

and recommendations, and to reconsider the tariff in light of any

representations made by the applicant.

On 27 August 1993, the Home Office informed the applicant that

his tariff had been originally fixed at 25 years and that the trial

judge had recommended 15 years and the Lord Chief Justice 21 years. The

applicant made representations, supported by various persons, to the

effect that a tariff of 15 years was more appropriate.

In a letter of 20 December 1993, the Home Office informed the

applicant that a tariff of 25 years had been fixed.

In March 1994, the applicant commenced judicial review

proceedings, claiming, inter alia, that the decision-making process in

fixing the tariff was unfair since there had not been full disclosure

of the materials before the Secretary of State. Leave was granted on

24 March 1994. The Secretary of State proceeded to disclose to the

applicant's solicitor various documents, including the full text of the

judicial comments and a report from the police.

In its judgment of 16 December 1994, the Court of Appeal quashed

the Secretary of State's decision to set the tariff at 25 years. The

applicant made further representations to the Secretary of State in

respect of his tariff. By letter dated 15 October 1996, the applicant

was informed that the tariff was set at 25 years.

A further application for leave to apply for judicial review was

refused on 12 May 1997.

COMPLAINTS

The applicant submits that the process whereby the tariff of a

mandatory life sentence prisoner is fixed by the Secretary of State is

so closely akin to a sentencing exercise as to attract the application

of Article 6 para. 1. The requirements of Article 6 para. 1 are not

complied with by the administrative procedure, in particular, because

the tariff is set by the Secretary of State, not by a court or tribunal

independent of the executive and it is fixed without the benefit of a

fair, open and public hearing.

THE LAW

The applicant complains that he did not receive a fair hearing

complying with the requirements of Article 6 para. 1 (Art. 6-1) in

respect of the procedure by which the Secretary of State fixed the

tariff.

Article 6 para. 1 (Art. 6-1) of the Convention provides in its

first sentence:

"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."

The Commission notes that the applicant submits that the tariff-

fixing procedure applied in respect of his sentence for murder is akin

to a sentencing exercise. It recalls that the tariff is set as

representing the minimum period to be served by the prisoner, inter

alia, to satisfy the requirements of retribution and deterrence.

While Article 6 para. 1 (Art. 6-1) clearly applies to the

sentencing part of the determination of a criminal charge, the

Commission considers that, where life imprisonment is imposed in

respect of murder, the sentencing is carried out by the trial judge

after the accused has been convicted. Life imprisonment for murder is

a mandatory sentence automatically imposed by law with regard to the

severity of the offence irrespective of considerations of the

dangerousness of the offender (Eur. Court HR, Wynne v. the United

Kingdom judgment of 18 July 1994, Series A no. 294-A, p. 14, para. 35).

It is in a distinct category from discretionary life sentences and

sentences of detention during Her Majesty's pleasure which are

indeterminate and whose character and purpose are identifiably

different being justified primarily by considerations of the offenders'

character, mental state or age and their resulting dangerousness, which

factors may change over time (eg. Eur. Court HR, Thynne, Wilson and

Gunnell v. the United Kingdom judgment of 25 October 1990, Series A no.

190-A, p. 30, para. 76 and Hussain v. the United Kingdom judgment of

21 February 1996, Reports 1996-I, p. 252 at p. 269, paras. 53-4). The

tariff-fixing procedure in respect of mandatory life prisoners

therefore must be regarded as an administrative procedure governing the

implementation of the sentence and not as part of the determination of

the sentence itself.

Consequently, the Commission finds that Article 6 para. 1

(Art. 6-1) does not apply to the fixing of the tariff of the mandatory

life sentence of the applicant. It follows that this complaint is

incompatible ratione materiae with the provisions of the Convention

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO E. BUSUTTIL

Secretary Acting President

to the First Chamber of the First Chamber

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RAJA v. THE UNITED KINGDOM

RAJA v. THE UNITED KINGDOM