Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21387/93

by D.W.

against the United Kingdom

The European Commission of Human Rights sitting in private on

30 August 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

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

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 14 April 1992 by

D.W. against the United Kingdom and registered on 16 February 1993

under file No. 21387/93;

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 1942 and resident in

Southampton. The facts of the case, as submitted by the applicant, may

be summarised as follows.

In April 1975, the applicant was sentenced to a term of

discretionary life imprisonment for four offences of buggery of boys

aged between 12 and 15. He also received a fixed sentence of 7 years.

He appealed unsuccessfully against his life sentence to the Court of

Appeal. Both the trial judge and the Court of Appeal commented that the

applicant was better off than if a fixed sentence had been imposed.

In or about 1983, the applicant's tariff (that part of his

sentence corresponding to retribution and deterrence) was fixed by the

Home Office in consultation with the trial judge and the Lord Chief

Justice at fifteen years.

The applicant was considered for release in 1985 and 1989. The

Parole Board declined to recommend his release.

The Parole Board considered the applicant's case a third time in

February 1992. The applicant, who had not been provided with any of the

reports before the Board, was informed in May 1992 that release had

been refused.

By letter dated 27 July 1992, the applicant was formally notified

that his tariff was fifteen years and that it had expired in September

1989. He had known informally of the tariff for at least a number of

months previously.

On 1 October 1992, section 34 of the Criminal Justice Act 1991

came into force. Under the provision of this Act, the Parole Board was

given power to direct the release of a prisoner serving a discretionary

life sentence.

In or about February 1993, the applicant was released on licence.

Conditions are attached to the licence, which is of indefinite

duration. These include the requirement that he may only live and work

where approved by his probation officer and that he may not leave the

country without the permission of his probation officer. He states that

he was told that he would not be able to get married, though it is not

apparent whether this originated from his probation officer or the

psychiatric doctor under whose supervision he remained.

Shortly after his release, the applicant informed his probation

officer that he wished to travel to Spain on holiday. The probation

officer refused his permission since the applicant had failed to

disclose details of where he would be staying and on the ground that

it was too early after his release. By letter dated 25 June 1993, the

Home Office Discretionary Lifer Unit agreed with the probation

officer's decision.

On 26 March 1994, the applicant was arrested by the police who

informed him that his licence had been revoked. On 31 March 1994, after

his return to prison, the applicant was informed that the reason for

recall was that a young man who had been staying with the applicant had

stated that the applicant had asked him to try to obtain a gun and had

suggested taking another young man into the woods to beat and kill him.

COMPLAINTS

The applicant complains of receiving an unfair trial and appeal

in respect of his conviction. He complains that in prison his life was

put at risk, contrary to Article 2 of the Convention, and that he was

subjected to torture contrary to Article 3 in aversion therapy which

consisted of electric shock treatment. He submits that while in prison

he was subject to compulsory labour contrary to Article 4 of the

Convention. He also complains of being denied respect for his private

life by being incarcerated.

Under Article 5 of the Convention the applicant complains of

being deprived unlawfully of his liberty. He complains that the tariff

for his sentence was fixed higher by the Home Office, a non-judicial

body, than the trial judge and Court of Appeal had intended and after

an unreasonable length of time. He also invokes Article 6 para. 1 of

the Convention in this respect.

The applicant submits that the review procedure governing release

did not conform with Article 5 para. 4 of the Convention as it was

neither speedy nor conducted by a body satisfying the requirements of

this provision. He also invokes Article 5 para. 5 of the Convention in

this respect.

The applicant further complains that the presumption of innocence

guaranteed under Article 6 para. 2 of the Convention was not respected

in the proceedings before the previous Parole Board referring to a

report which took into account matters with which the applicant had

never been charged.

The applicant complains that his release in February 1993 was

subject to conditions, which he says is not provided for in Article 5

para. 4 of the Convention. He complains that these conditions breached

the presumption of innocence and render him a prisoner in his own

country. He complains that he has been told that, pursuant to the

conditions imposed in his licence, he is not allowed to marry. He

invokes Article 12 of the Convention in this respect.

The applicant further complains of discrimination contrary to

Article 14 of the Convention and of having no effective remedy for his

complaints contrary to Article 13 of the Convention.

THE LAW

1. The applicant complains of his original trial and conviction and

the appeal proceedings.

The Commission is however not required to decide whether or not

the facts submitted by the applicant disclose any appearance of a

violation of the Convention as, in accordance with Article 26

(Art. 26) of the Convention, the Commission finds that the final

decision regarding the applicant's case was given by the Court of

Appeal in or about 1976, which is more than six months before the date

on which the application was submitted to the Commission. It follows

this part of the application must be rejected under Article 27 para.

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

2. The applicant makes complaints about his incarceration and the

treatment which he received, in respect of which he invokes Articles

2, 3, 4, and 8 (Art. 2, 3, 4, 8) of the Convention. These Convention

provisions guarantee respectively the right to life, freedom from

torture, freedom from forced or compulsory labour, and the right to

respect for private and family life, correspondence and home.

Insofar as the applicant complains of being subject to torture

by way of aversion therapy, the Commission notes that the applicant has

not instituted proceedings before the courts alleging assault, trespass

to the person or negligence. He has therefore failed to exhaust the

domestic remedies available to him under United Kingdom law as required

by Article 26 (Art. 26) of the Convention.

The Commission has examined the other complaints as they have

been submitted by him but finds them unsubstantiated and, thus, they

fail to disclose any appearance of a violation of these provisions of

the Convention.

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

non-exhaustion of domestic remedies, pursuant to Article 27 para. 3

(Art. 27-3) of the Convention, and as being manifestly ill-founded

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

3. The applicant next complains of allegedly unlawful detention, the

length of his tariff, the way in which his tariff was fixed by the Home

Office, a non-judicial body, which took into account material which had

not been subject to a criminal charge, and the failure to inform him

of the tariff until after it had expired. He invokes Article 5 paras.

1 and 5 and Article 6 para. 1 (Art. 5-1, 5-5, 6-1) of the Convention

in this regard.

Article 5 para. 1 (Art. 5-1) provides as relevant:

"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 5 para. 5 (Art. 5-5) provides:

"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."

Article 6 para. 1 (Art. 6-1) provides in its first sentence:

"1. 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 finds that these complaints raise issues of fact

and law under the Convention. It considers however that it cannot, on

the basis of the file, determine their admissibility at this stage and

considers that it is therefore necessary, in accordance with Rule 48

para. 2 (b) of the Commission's Rules of Procedure, to give notice of

these complaints to the respondent Government.

4. The applicant also complains that, following the expiry of his

tariff in 1989, he did not have available a speedy review of the

lawfulness of his continued detention by a court, as required by

Article 5 para. 4 (Art. 5-4) of the Convention, which reads as follows:

"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 applicant also invokes Article 5 para. 5 (Art. 5-5) of the

Convention cited above.

The Commission finds that this aspect of the case also raises

issues of fact and law under the Convention. It considers however that

it cannot, on the basis of the file, determine the admissibility of

these complaints and considers that it is therefore necessary, in

accordance with Rule 48 para. 2 (b) of the Commission's Rules of

Procedure, to give notice of them to the respondent Government.

5. The applicant further complains that the presumption of

innocence, ensured by Article 6 para. 2 (Art. 6-2) of the Convention

for those charged with a criminal offence, was not respected in the

proceedings before the previous Parole Board, referring to a report

apparently before the Board which mentioned matters which were never

the subject of a criminal charge.

The Commission considers however that this complaint, as

presented by the applicant, does not indicate that any finding or

declaration of the applicant's guilt of a criminal offence was made in

the proceedings before the Parole Board, which was concerned with the

matters relevant to whether the applicant should be released from

prison. It follows that this complaint must be rejected as manifestly

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

Convention.

6. The applicant next complains that the conditions attached to his

release on licence in or about February 1993 also disclose a violation

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

The Commission notes that Article 5 para. 4 (Art. 5-4) does not

establish a right to an order of unconditional release. Insofar as

conditions are imposed in the licence requiring a probation officer's

approval of his place of residence, work and leaving the country, the

Commission does not find that they are, in the circumstances of this

case, of such a nature or degree as to constitute in themselves

deprivations of liberty within the meaning of Article 5 (Art. 5) of the

Convention.

Accordingly, the Commission finds that this complaint does not

disclose any appearance of a violation of Article 5 para. 4

(Art. 5-4) of the Convention and that it is manifestly ill-founded

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

7. The applicant then complains that the life licence interfered

with his rights under Articles 8, 11 and 12 (Art. 8, 11, 12) of the

Convention, which provide, inter alia:

Article 8 (Art. 8):

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society ... for the

prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of

others."

Article 11 (Art. 11):

"1. Everyone has the right to freedom of peaceful assembly and

to freedom of association with others ...

2. No restrictions shall be placed on the exercise of these

rights other than such as are prescribed by law and are necessary

in a democratic society ... for the prevention of disorder or

crime, for the protection of health or morals or for the

protection of the rights and freedoms of others ..."

Article 12 (Art. 12):

"Men and women of marriageable age have the right to marry and

to found a family, according to the national laws governing the

exercise of this right."

The Commission recalls that the licence, as described by the

applicant, imposes a number of conditions which potentially impinge on

his enjoyment of the rights guaranteed by Articles 8 and 11

(Art. 8, 11) of the Convention, insofar as they refer to where he may

live or work. The Commission notes, however, that the applicant has

not complained of any specific prejudicial effect caused by the

operation of the life licence in his case, save that he was refused

permission to leave the country on holiday.

The Commission considers that, assuming the existence of the life

licence and the conditions attaching to it constitute interferences

under the above provisions, the existence of the life licence may be

justified for the purpose of the prevention of disorder or crime. These

measures have not been shown to be disproportionate, bearing in mind

that the applicant was sentenced to life imprisonment for serious

sexual offences committed against children and that, in his own words,

he had become an abuser of children some twenty years prior to his

conviction.

Insofar as the applicant was refused permission to leave the

country, the Commission notes that this refusal was based on the

applicant's failure to inform the probation officer of where he would

be staying, and also on the fact that the applicant intended to leave

soon after his release from prison. The Commission does not find the

resulting restriction on the applicant was unreasonable or arbitrary

in the circumstances.

As regards the applicant's complaint that he is forbidden to

marry, the Commission notes that there is no condition to this effect

in the licence to which he is subject. It appears that this complaint

refers to an oral indication, though it is unclear whether it

originated from the probation officer or the doctor under whose care

the applicant remains. The terms and context in which it was made are

not explained. The Commission is not satisfied that the applicant is

in fact subject to any formal prohibition as to marriage and there is

no indication that he has suffered any restriction in this respect.

The Commission accordingly finds that there is no indication of

a violation of Articles 8, 11 or 12 (Art. 8, 11, 12) of the Convention

on the facts as presented in this application.

It follows that these complaints are manifestly ill-founded

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

8. The applicant also complains of discrimination in the securement

of his Convention rights and freedoms, contrary to Article 14

(Art. 14) of the Convention.

However, the Commission finds no evidence in the case-file which

might substantiate such a claim. It follows that this part of the

application is similarly manifestly ill-founded within the meaning of

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

9. Finally, the applicant complains of the absence of effective

domestic remedies. He invokes Articles 13 (Art. 13) of the Convention,

which guarantees an effective remedy before a national authority for

a violation of the Convention.

The Commission recalls however that, according to the constant

case-law of the Convention organs, Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation (Eur. Court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).

The Commission finds that the applicant cannot be said, in the

light of its findings above, to have an "arguable claim" of a violation

of his Convention rights warranting a remedy under Article 13 (Art. 13)

of the Convention.

Insofar as the Commisssion finds that issues may arise in the

context of the applicant's complaints of an inadequate review procedure

for his continued detention, the question of the absence of any remedy

falls to be dealt with under Article 5 paras. 4 and 5 (Art. 5-4, 5-5)

of the Convention, which paragraphs form the lex specialis for

complaints under the provisions of Article 5 (Art. 5). Similarly,

insofar as issues may arise under Article 6 para. 1 (Art. 6-1) in

relation to the fixing of the applicant's tariff, Article 6 para. 1

(Art. 6-1) constitutes the lex specialis in respect of any lack of a

proper determination of a criminal charge by a court.

It follows that this part of the application must be dismissed

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

2 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaints

under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) and Article 6

para. 1 (Art. 6-1) of the Convention concerning the lawfulness

of his detention, the length and fixing of his tariff and the

delay in informing him about the tariff, and the complaints under

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

concerning a speedy review of the lawfulness of his detention

after the expiry of the tariff period;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)

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D.W. v. THE UNITED KINGDOM

D.W. v. THE UNITED KINGDOM