Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23156/94

by Richard O'HARA

against Ireland

The European Commission of Human Rights (First Chamber) sitting

in private on 31 August 1994, the following members being present:

MM. A. WEITZEL President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber,

Having regard to the application introduced on 12 October 1993

by Richard O'HARA against Ireland and registered on 3 January 1994

under file No. 23156/94.

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 facts of the present case, as submitted by the applicant, may

be summarised as follows.

A. Particular circumstances of the case

The applicant is a British citizen born in Belfast, Northern

Ireland in 1953 and is currently serving a sentence of life

imprisonment in Arbour Hill Prison, Dublin.

In or about 1982, the applicant was convicted of the murder of

a young girl. He was sentenced by an Irish court, pursuant to section

2 of the Criminal Justice Act 1964 ("the 1964 Act"), to a term of life

imprisonment.

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

Review Group. It decided not to recommend release, transfer to an open

prison or transfer to another prison closer to Northern Ireland as

requested by the applicant. A further review was held in May 1992. By

letter dated 8 December 1992, the applicant was informed that the

Sentence Review Group declined to make a definitive recommendation to

the Minister for Justice in his case at that time, but that they

proposed to review his case again towards the end of 1995.

By letter dated 16 June 1993, the Minister for Justice, in

response to an inquiry by a Member of Parliament of the United Kingdom

on behalf of the applicant, confirmed that no distinction was made

between the treatment of cases on grounds of nationality, each case

being reviewed on its merits under the applicable criteria (see below

at B (b) "The Sentence Review Group"). He pointed out that the average

sentence served by life prisoners was 11 not 8 years as stated by the

applicant.

The applicant wrote to the Legal Aid Board as he wished to take

judicial review proceedings in respect of the reviews conducted by and

the decisions of the Sentence Review Group. By letter dated

6 September 1993 the Legal Aid Board confirmed that he "would be

unlikely to obtain legal aid through this source" in respect of the

judicial review proceedings proposed because they related to a criminal

matter. That letter confirmed that the Legal Aid Board provided

services in accordance with the scheme of civil legal aid.

B. Relevant domestic law and practice

(a) The Applicant's Sentence

It is only in cases of murder, capital murder and treason that

an Irish court is, by statute, bound to impose a specific custodial

sentence. In all of these cases the sentence is life imprisonment.

The applicant was sentenced under section 2 of the 1964 Act which

reads as follows:

"A person who but for this Act would be liable to suffer death

shall be liable to penal servitude for life."

The words "shall be liable" in this section are interpreted,

under Irish law, to mean "shall". "Penal servitude" was introduced as

a substitution for deportation to convict settlements over a century

ago, but today there is no difference in treatment between those

serving terms of imprisonment and those serving terms of imprisonment

with penal servitude (The Irish Law Reform Commission Report on

Sentencing, dated March 1993).

(b) The Sentence Review Group

The Sentence Review Group is a non-statutory body established in

1989 to advise the Minister for Justice in relation to the

administration of long term sentences.

All long term prisoners who have completed 7 years of their

sentence may apply to have their case reviewed by the Sentence Review

Group. Where the Sentence Review Group declines to recommend release,

a date is set for further review within the following 3 years.

In considering whether to recommend temporary release, or other

concessions, the Sentence Review Group has to have regard to the

interests of the public as a whole and to the interests of the

prisoner. The Sentence Review Group therefore applies the following

long established criteria:

1. Would a release constitute a threat to the community?

2. Is it reasonable to grant temporary release at this particular

stage in view of the nature of the crime committed and the

offender's previous criminal record?

3. Does the offender merit temporary release having regard to his

behaviour while in prison?

4. Are there any compassionate grounds which warrant special

consideration?

COMPLAINTS

1. The applicant complains that he has not been released though he

has served over 11 years in prison. He complains about the lack of a

parole board with the power to order release and in this respect claims

that there is no meaningful difference between mandatory and

discretionary life sentences.

2. The applicant next complains in relation to the reviews conducted

by and the decisions of the Sentencing Review Group in respect of his

requests for release, transfer to an open prison or transfer to another

prison closer to Northern Ireland. He considers that he is being

discriminated against by the Sentence Review Group because of his

nationality. The applicant also complains about the lack of legal

representation before the Sentence Review Group and the delay of seven

months between the date of his last review, and he being informed of

the decision, which has resulted in his next review date being pushed

back by seven months. Finally in this regard, the applicant also

complains about a refusal by the Legal Aid Board of legal aid for his

proposed judicial review proceedings.

3. The applicant also complains that the refusals by the Sentence

Review Group of his requests for a transfer to a prison closer to

Northern Ireland have impacted unacceptably on his private life (visits

from friends in Northern Ireland), on his family life (visits from

family in Northern Ireland), and on his ability to have further

christian fellowship.

THE LAW

1. The applicant complains that there is no parole board with the

power to order his release and that, in this regard, there is no

difference between mandatory and discretionary life sentences.

The Commission notes that the applicant has not raised this claim

under any particular Article of the Convention but the Commission

considers that this complaint falls to be examined under Article 5

para. 4 (Art. 5-4) of the Convention which 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."

The Commission recalls that where a person is deprived of his

liberty pursuant to a conviction by a competent court, the supervision

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

incorporated in the decision made by the court at the close of the

judicial proceedings, unless the grounds justifying his deprivation of

liberty are susceptible of change with the passage of time. In the

latter circumstances the possibility of recourse to a body satisfying

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

required (Eur. Court H.R., Weeks judgment of 2 March 1987, Series A

no. 114, and Thynne, Wilson and Gunnell judgment of 25 October 1990,

Series A no. 190-A).

The Commission further recalls that in the Weeks and Thynne,

Wilson and Gunnell cases discretionary life sentences, as they had

developed in the United Kingdom, were found to attract the protection

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

relied on by judges in the United Kingdom in passing those

discretionary life sentences were, by their nature, susceptible of

change with the passage of time. This was specifically contrasted with

the position in relation to mandatory life sentences, the latter being

considered essentially punitive in nature because of the gravity of the

offence (Weeks judgment, loc. cit. pp. 28-29, para. 58, and Thynne,

Wilson and Gunnell judgment, loc. cit. p. 29 para. 74).

The Commission also recalls that, in confirming subsequently the

above reasoning, the Court gave the following description of the

mandatory life sentence (Eur. Court H.R., Wynne judgment of

18 July 1994 Series A no. 294-A, para. 35):

"However, the fact remains that the mandatory 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."

In the present case, the applicant was found guilty of murder,

and received the required life sentence pursuant to Section 2 of the

1964 Act. The Commission finds that it is clear that the Irish

legislature ensured through section 2 of the 1964 Act that serious

offences, previously attracting the death penalty, required life

sentences. Thus those life sentences (and the imposition of them) are

punitive in nature and based on the gravity of the offence of murder.

The Commission therefore concludes that, in this case, the

initial imposition by the court of the life sentence on the applicant

incorporated and satisfied the requirements of Article 5 para. 4

(Art. 5-4) of the Convention and that his complaint in this respect is

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

(Art. 27-2) of the Convention.

2. The applicant next complains in relation to the reviews conducted

by and the decisions of the Sentence Review Group. In particular he

complains about being discriminated against on grounds of nationality,

the lack of legal representation before the Sentence Review Group, the

delay in communicating the second decision to him and about a refusal

of legal aid to allow him to take judicial review proceedings.

Given the above finding that the applicant's initial sentencing

incorporated and satisfied the requirements of Article 5 para. 4

(Art. 5-4) of the Convention, the Commission considers that the

complaints in relation to a lack of legal representation, delay and a

refusal of legal aid for judicial review, fail to disclose any

violation of the provisions of the Convention. Furthermore, the

complaint in relation to the applicant being discriminated against on

grounds of nationality is unsubstantiated.

Consequently, the Commission concludes that this complaint is,

as a whole, manifestly ill-founded within the meaning of Article 27

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

3. The applicant also complains that the refusals to transfer him

to a prison closer to Northern Ireland have unacceptably impacted on

his private life, his family life and on his ability to have further

christian fellowship.

The Commission notes that it is not required to decide whether

or not the facts alleged by the applicant, in respect of this

complaint, disclose any appearance of a violation of the provisions of

the Convention as, under Article 26 (Art. 26) of the Convention, it may

only deal with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

In the present case the Commission notes that the applicant did

not bring a constitutional action in the domestic courts in respect of

this complaint and has not, therefore, exhausted all domestic remedies

available to him under Irish law (No. 15141/89, Dec. 15.2.90, D.R. 64

p. 203). Moreover, an examination of the case as submitted by the

applicant does not disclose the existence of any special circumstances

which might have absolved the applicant, according to the generally

recognised rules of international law, from exhausting the domestic

remedies at his disposal.

It follows that this complaint is inadmissible within the meaning

of Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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O'HARA v. IRELAND

O'HARA v. IRELAND

LEXI