Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22162/93

by M.H.

against the United Kingdom

The European Commission of Human Rights sitting in private on

28 November 1994, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

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

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 April 1993 by

M.H. against the United Kingdom and registered on 6 July 1993 under

file No. 22162/93;

Having regard to:

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

the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The facts as submitted by the applicant may be summarised as

follows.

The applicant is a United Kingdom citizen born in 1949 and is

currently serving a sentence of life imprisonment in HM Prison Stocken.

A. Particular circumstances of the case

The applicant was convicted of the murder of an elderly man in

1972. He received a mandatory sentence of life imprisonment.

The applicant's sentence was reviewed by the Parole Board in or

about 1984. A release date was apparently set and he was transferred

to a pre-release hostel under supervision. Following a minor motoring

offence, for which he was conditionally discharged by the court, he was

recalled to prison. His case was reviewed by the Parole Board in

January 1986. The Parole Board decided to defer the case until January

1988 as a result of police investigations involving the applicant.

On 1 July 1987 the applicant was charged with three offences of

incest and sentenced to 4 years' imprisonment. To date the applicant

claims he is innocent of those charges.

In 1988, the Parole Board set the next review for 1990. At that

review, despite favourable reports from his prison, the case was set

for further review in 1992. In 1992, the Board set the next review for

December 1994 but recommended the applicant's transfer to an open

prison.

In a letter dated 11 May 1993 from the Life Sentence Review

Section of the Prison Service, the applicant was informed that his

continued detention now depended upon the assessment of the potential

risk he might pose to the public if released.

The applicant was transferred to an open prison in or around late

1993 or early 1994. Since 1985 the applicant has been in six different

prisons.

B. Relevant domestic law and practice

In addition to the facts as submitted by the applicant the

Commission has had regard to the outline of relevant domestic law and

practice in the judgment of the European Court of Human Rights in the

Wynne case (judgment of 18 July 1994, Series A no. 294-A, paras.

12-23). In particular the Commission has noted the following:

1. Life sentences

Murder carries a mandatory sentence of life imprisonment under

the Murder (Abolition of Death Penalty) Act 1965.

A life sentence may also be passed, in the exercise of the

court's discretion, on a person convicted of any of the offences for

which life imprisonment is provided by the relevant legislation as the

maximum penalty for the offence concerned - a discretionary life

sentence. Broadly speaking, the use of such a discretionary life

sentence is reserved for cases where the offence is grave and it

appears that the accused is a person of unstable character likely to

commit such offences in the future, thus making him dangerous to the

public in respect of his probable future behaviour unless there is a

change in his condition.

The Criminal Justice Act 1991 ("the 1991 Act") introduced changes

to the procedures for the release of discretionary life prisoners to

reflect the fact that reviews, complying with Article 5 para. 4 of the

Convention, are required in respect of the non-punitive period of

discretionary life sentences. These changes were not extended to

mandatory life prisoners.

In the course of the debate in the House of Commons in respect

of what was to become the 1991 Act, the Minister of State for Home

Affairs explained, inter alia, the difference between mandatory and

discretionary life sentences, and described mandatory life sentences

as follows:

"The nature of the mandatory sentence is different. The element

of risk is not the decisive factor in handing down a life

sentence. According to the judicial process, the offender has

committed a crime of such gravity that he forfeits his liberty

to the state for the rest of his days. If necessary he can be

detained for life without the necessity for a subsequent judicial

intervention."

However the English courts have recognised, in determining the

principles of fairness that apply to the procedures governing the

review of mandatory life sentences, that the mandatory sentence is,

like the discretionary sentence, composed of both a punitive period

("the tariff") and a security period, the latter period being linked

to the assessment of the prisoner's risk to the public following the

expiry of the tariff.

The English courts have also recognised that there continues to

be a gap between the theory and practice in respect of mandatory life

sentences (R. v. Secretary of State for the Home Department, ex parte

Doody [1993] 3 All England Reports 92). In that case Lord Mustill, with

whom the other Law Lords agreed, went on to state that, while the

mandatory life sentence may be converging with the discretionary life

sentence, nevertheless there remained a substantial gap between the two

types of sentences and it would be a task for Parliament to further

assimilate the effect of the two types of life sentences.

2. Release of life prisoners on licence and revocation of a

licence

The Criminal Justice Act 1967 ("the 1967 Act") contained the

relevant statutory provisions in respect of Parole Board reviews and

the powers of the Secretary of State in this regard. These provisions

have been incorporated into the 1991 Act since October 1992 and

continue to apply to mandatory life prisoners.

Pursuant to the above legislation the Secretary of State may

release on licence a person only if recommended to do so by the Parole

Board, and after consultation with the Lord Chief Justice of England

and the trial Judge if available. The decision on whether to release

is, however, for the Secretary of State alone.

Broadly speaking, once a release date is fixed, a prisoner may

be transferred to a pre-release hostel as part of a pre-release

programme during which time the prisoner continues to be assessed.

The Secretary of State may revoke the licence of a person either

on his own initiative or on the recommendation of the Parole Board. If

a person subject to a licence is convicted on indictment of an offence,

the trial court may, whether or not it passes any other sentence on

him, revoke the licence.

The effect of the revocation of a licence, whether by a Secretary

of State or a court, is that the person is liable to be re-detained in

pursuance of his original sentence (formerly section 62(9) of the 1967

Act).

COMPLAINTS

The applicant complains under Article 3 of the Convention in

relation to alleged mental distress caused by the length of his

detention and the delays between each Parole Board review. He also

complains under Article 5 paras. 4 and 5 of the Convention as regards

the procedure for determining the continued lawfulness of his

detention. Next he complains of a violation of Article 6 paras. 1, 2

and 3 of the Convention in relation to the alleged absence of a fair

trial by an independent and impartial tribunal, the length of

proceedings, the presumption of innocence and the right to a proper

defence.

The applicant then claims under Articles 7, 8 and 14 of the

Convention, and Article 1 of Protocol No. 1 to the Convention, that he

has served a heavier penalty than was applicable at the time the

offence was committed; that his family life has been interrupted; that

he has been discriminated against (as regards fixed term prisoners and

civilians) and that the peaceful enjoyment of his possessions has been

interrupted.

Finally, the applicant invokes Articles 1 and 2 of Protocol No.

4 and Articles 3 and 4 of Protocol No. 7 to the Convention, as well as

Article 13 of the Convention, the latter on the basis that allegedly

he has no effective remedy before a national authority.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 April 1993 and was

registered on 6 July 1993.

On 11 October 1993 the Commission decided to communicate the

applicant's complaints under Article 5 para. 4 of the Convention to the

respondent Government without requesting observations.

By letter dated 4 August 1994 the Secretariat of the Commission

provided the applicant with a copy of the judgment of the Court in the

Wynne case (Eur. Court H.R., Wynne judgment of 18 July 1994, Series A

294-A), requesting the applicant to inform the Commission whether, in

light of that judgment, the applicant wished to maintain his case.

By letter received on 18 August 1994 the applicant confirmed that

he wished to continue with his application.

On 3 September 1994 the Commission decided to continue its

examination of the admissibility of the application without seeking the

observations of the Government.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention in relation to the mental distress caused by the length of

his ongoing detention and the delays between each Parole Board review.

Article 3 (Art. 3) of the Convention reads as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Commission recalls that Article 3 (Art. 3) of the Convention

cannot be read as requiring that an individual serving a sentence of

life imprisonment must have that sentence reconsidered by a national

authority (judicial or administrative) with a view to its remission or

termination (No. 11635/85, Dec. 3.3.86, D.R. 46 p. 237). In the present

case the Commission notes that the applicant is serving a sentence of

life imprisonment.

As to whether there are particular factors in the present case

which would bring the applicant's detention within the scope of Article

3 (Art. 3) of the Convention the Commission recalls that, according to

the constant case-law of the Convention organs, the treatment in

respect of which an applicant complains must attain a minimum level of

severity if it is to fall within the scope of Article 3 (Art. 3) of the

Convention. The assessment of the minimum is relative and depends,

therefore, on all the circumstances of the case (see, for example,

No. 8463/78, Dec. 9.7.81, D.R. 26 p. 49 and Eur. Court H.R., Ireland

v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,

para. 162).

The Commission has examined all of the submissions of the

applicant but does not consider that, in the circumstances of this

case, the treatment of which the applicant complains reaches the

threshold of severe ill-treatment prohibited by Article 3 (Art. 3) of

the Convention. The Commission therefore finds the applicant's

complaint under Article 3 (Art. 3) of the Convention manifestly ill-

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

Convention.

2. The applicant complains under Article 5 para. 4 (Art. 5-4) of the

Convention in relation to the Parole Board reviews which have been

conducted in respect of his detention. He also complains under Article

5 para. 5 (Art. 5-5) of the Convention that he has no enforceable right

to compensation in this regard.

Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention read

as follows:

"4. 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 his detention is not lawful.

5. Everyone who has been the victim of arrest or detention in

contravention of the provisions of this Article shall have an

enforceable right to compensation."

The Commission recalls the judgment of the European Court of

Human Rights in the case of Wynne v. the United Kingdom (Eur. Court

H.R., judgment of 18 July 1994, Series A no. 294-A). In that case the

applicant received a mandatory life sentence and was released on

licence, which licence was subsequently revoked. It was found by the

Court that the legal basis for his continuing detention was a mandatory

life sentence (although "supplemented" by a subsequent discretionary

life sentence).

The applicant in the Wynne case submitted that the distinction

between mandatory and discretionary life sentences, set out in the

Thynne, Wilson and Gunnell case (Eur. Court H.R., Thynne, Wilson and

Gunnell judgment of 25 October 1990, Series A no. 190), was no longer

valid referring in support of his arguments to recent domestic

practices, case-law and official pronouncements. Therefore, the

applicant in the Wynne case argued that he was entitled to a review

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

Court in the Wynne case (loc. cit., paras. 35-36), however, found as

follows:

"..... the fact remains that the mandatory life sentence belongs

to a different category from the discretionary sentence in the

sense that it is imposed automatically as the punishment for the

offence of murder irrespective of considerations pertaining to

the dangerousness of the offender ..... That mandatory life

prisoners do not actually spend the rest of their lives in prison

and that a notional tariff period is also established in such

cases - facts of which the Court was fully aware in Thynne,

Wilson and Gunnell ..... - does not alter this essential

distinction between the two types of life sentence .....

..... Against the above background, the Court sees no cogent

reasons to depart from the finding in the Thynne, Wilson and

Gunnell case that, as regards mandatory life sentences, the

guarantee of Article 5 para. 4 (Art. 5-4) was satisfied by the

original trial and appeal proceedings and confers no additional

right to challenge the lawfulness of continuing detention or re-

detention following revocation of the life sentence .....

Accordingly, in the circumstances of the present case, there are

no new issues of lawfulness which entitle the applicant to a

review of his continued detention under the original mandatory

life sentence."

In the present case the Commission notes that the applicant was

sentenced to a mandatory life sentence and was released on licence,

which licence was revoked following his conviction for another offence.

It is also noted that the applicant was then re-detained in pursuance

of the original mandatory life sentence (section 62 (9) of the 1967 Act

and the equivalent provision in the 1991 Act).

The Commission further notes that the applicant has submitted no

evidence to demonstrate that the character of the mandatory life

sentence has changed in domestic law. It remains a sentence imposed

automatically as punishment for the offence of murder irrespective of

considerations pertaining to the dangerousness of the offender. The

Commission therefore finds, as did the Court in the above-mentioned

Wynne case, that the applicant has advanced no cogent reason to depart

from the finding in the Thynne, Wilson and Gunnell case (loc. cit.).

Accordingly, the Commission concludes that the guarantees

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

satisfied by the original trial and appeal proceedings (if any) of the

applicant. It finds that no new issues of lawfulness arose in relation

to the applicant's detention which entitled the applicant to a review

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

As no appearance of a violation of either paragraph 4 or

paragraphs 1 to 3 of Article 5 (Art. 5-1, 5-2, 5-3, 5-4) of the

Convention has been established in the present case, the applicant is

not entitled to an enforceable right to compensation under Article 5

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

It follows that the Commission must reject the complaints of the

applicant under Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the

Convention as manifestly ill-founded pursuant to Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant next complains under Article 6 paras. 1, 2 and 3

(Art. 6-1, 6-2, 6-3) of the Convention, but does not specify the nature

of the alleged violation of these provisions.

Insofar as the applicant raises Article 6 (Art. 6) of the

Convention in relation to the conduct of the Parole Board reviews, the

Commission notes that it has already considered this aspect of the case

in the context of Article 5 para. 4 (Art. 5-4) of the Convention, being

the lex specialis in the matter. The Commission does not find it

necessary, therefore, to reconsider it in the light of Article 6

(Art. 6) of the Convention.

Insofar as the applicant raises Article 6 (Art. 6) of the

Convention in relation to his conviction in 1988, the Commission

recalls its constant case-law to the effect that it is not competent

to deal with an application alleging that errors of law or fact have

been committed by domestic courts, except where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention (cf., for example, No. 7987/77,

Dec. 13.12.79, D.R. 18 pp. 31, 45). However the Commission considers

that the applicant, apart from professing his innocence of the relevant

charges, has not raised any matter in his application that would

demonstrate that his trial or conviction in 1988 involved a violation

of any provision of the Convention.

In conclusion, the Commission has examined the case-file, but

finds no evidence which might disclose any appearance of a violation

of Article 6 paras. 1, 2 or 3 (Art. 6-1, 6-2, 6-3) of the Convention.

The Commission must therefore reject the complaints of the applicant

under Article 6 (Art. 6) of the Convention as manifestly ill-founded

pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

4. The applicant also complains that he has served a heavier

sentence than was applicable at the time of his conviction, that his

family life has been disrupted, that he has been discriminated against

and that the peaceful enjoyment of his possessions has been

interrupted. He invokes Articles 7, 8 and 14 (Art. 7, 8, 14) of the

Convention and Article 1 of Protocol No. 1 to the Convention in this

regard, which guarantee, inter alia, freedom from retroactive criminal

penalties, the right to respect for private and family life, freedom

from discrimination in the securement of Convention rights and the

right to the peaceful enjoyment of possessions, respectively.

However, the Commission finds no element of retroactivity in the

sentences imposed on the applicant for his crimes. It also finds no

evidence in the case of any interference with the applicant's right to

respect for private and family life which would not be justified in a

democratic society for the prevention of disorder or crime. Nor does

it find any evidence of discrimination or unjustified interference with

the applicant's property rights.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

5. The applicant then complains under Articles 1 and 2 of Protocol

No. 4 and Articles 3 and 4 of Protocol No. 7 (P4-1, P4-2, P7-3, P7-4)

to the Convention, which concern, inter alia, detention on civil

matters, liberty of movement, compensation for a miscarriage of justice

and the principle of "ne bis in idem", respectively.

However, the Commission notes that the United Kingdom has not

ratified these two Protocols to the Convention. Therefore, the

Commission has no competence to deal with this aspect of the

applicant's case, which must be rejected as being incompatible ratione

personae with the provisions of the Convention, pursuant to Article 27

para. 2 (Art. 27-2).

7. Finally, the applicant invokes Article 13 (Art. 13) of the

Convention, claiming that he does not have an effective remedy before

a national authority in respect of his complaints.

Article 13 (Art. 13) of the Convention provides as follows:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in an official capacity."

However, the case-law of the Convention organs establishes that

Article 13 (Art. 13) does not require a remedy in domestic law for all

claims alleging a breach of the Convention; the claim must be an

arguable one (Eur. Court H.R., Boyle and Rice judgment of

27 April 1988, Series A no. 131, p. 23, para. 52). In the light of the

above conclusions concerning the applicant's other complaints under the

Convention and Protocols, the Commission finds that the applicant does

not have an arguable claim of a breach of his rights and freedoms which

warrants a remedy under Article 13 (Art. 13).

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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M.H. v. THE UNITED KINGDOM

M.H. v. THE UNITED KINGDOM