Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22564/93

by William GRICE

against the United Kingdom

The European Commission of Human Rights sitting in private

on

14 April 1994 the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

A. WEITZEL

F. ERMACORA

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 CONFORTI

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

Mr. H.C KRUGER, 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 8 October

1993 by William Grice against the United Kingdom and registered

on 13 October 1993 under file No. 22761/93;

Having regard to :

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

Procedure of the Commission;

- the Commission's decision of 8 September 1993 to

communicate the application;

- the observations submitted by the respondent Government on

6 October 1993 and the observations in reply submitted by

the applicant on 23 March 1994;

THE FACTS

a. Particular circumstances of the case

The applicant is a British citizen, born in 1956 and is

resident in London. He is represented before the Commission by

Gilchrists, solicitors practising in London. The facts as

submitted by the applicant may be summarised as follows.

In 1988 the applicant was informed that he was infected with

HIV (human immunodeficiency viruses). He began to suffer AIDS-

related conditions (acquired immunity deficiency syndrome).

On 6 August 1992, the applicant was sentenced to 4 years'

imprisonment for offences of buggery and indecent assault on a

male child aged 7, which arose from incidents which took place

in 1983.

In December 1992, the applicant was diagnosed as suffering

from full-blown AIDS. A letter dated 7 June 1993 from the

consultant doctor treating the applicant states that persons with

this diagnosis generally die within 2 years. He further states

that the applicant is already suffering from AIDS-related

conditions which threaten to develop into carcinoma:

"I have no doubt that the fact that is a

prisoner and having to endure less than satisfactory living

conditions and less than satisfactory attention to personal

hygiene, that his life expectancy will be considerably

shortened."

The applicant applied for early release on compassionate

grounds on 17 December 1992. His request was refused on 24 June

1993 by the Secretary of State on the ground that his medical

condition was not sufficiently serious.

By letter dated 31 March 1993 to a Member of Parliament

supporting the applicant's request, the Home Office replied that

the Governor of the prison and the medical officer considered

that the applicant's medical condition was being managed

satisfactorily within prison. It was considered that the

circumstances did not justify the wholly exceptional step of

authorising his early release on compassionate grounds before he

became eligible for release on parole. His case would be kept

under review with respect to any significant deterioration.

In June 1993, the applicant's case was reviewed and the

earlier refusal maintained since the prison medical officer

confirmed that the applicant's condition continued to to be

satisfactorily managed in prison and his life expectancy

continued to be about 2 years.

The applicant has provided a letter dated 9 July 1993 from

another Member of Parliament which states that he has discovered

that no prisoners who have AIDS or who are HIV positive have been

granted compassionate early release. The same M.P. put a

Parliamentary question with respect to the number of AIDS

sufferers who have died in prison. In a reply dated July 1993,

he was informed that 12 prisoners have died in England and Wales

as a consequence of AIDS related illness while in custody. All

were in an external hospital or hospice at the time.

In a report dated 23 September 1993, the applicant's doctor

informed the Parole Unit of the Prison Service:

" latest CD4 count is 25 which is much

below the level of 200 at which full blown AIDS is

diagnosed.

In an attempt to prevent severe infection occurring, I have

prescribed antibiotics. However it is not possible to offer

prophylaxis for every life threatening infection.

In my experience, people with HIV infection do best in

terms of quality and quantity of life if, as well as good

medical care, they have a good diet with dietary

supplements and have a low stress level.

Again it is my opinion that medical

condition of severe immune deficiency would be better

managed if he were not in prison. A healthy lifestyle with

regular medical checks are his only chance of maintaining

his already very restricted life expectancy."

The applicant's doctor who visited the applicant in prison

once per week gave his life expectancy 12 months if he was

outside prison or as 6-12 months inside prison, due to the

greater risk of infection.

On 27 September 1993, following the applicant's application

to the Commission, the Minister reviewed the applicant's case.

Although his life expectancy at that stage was thought to be 6-12

months, his condition, mobility and capacity to reoffend were

unchanged and it was not considered appropriate to grant his

release on compassionate grounds.

In the report of the Probation Officer to the Local Review

Committee which considers release on licence, it was stated that

the applicant experienced his environment more harshly than

otherwise as a result of his ill health and that he found his

feelings of isolation the most difficult to cope with. It

concluded that the reasons for releasing the applicant on

compassionate grounds were high and supported his application.

The applicant's behaviour in prison was acknowledged to be

exemplary. He was described as conscientious, willing and

cheerful and gained employment in a trusted capacity as a Red

Band Legal Aid Orderly.

The applicant applied for judicial review of the Secretary

of State's refusal to exercise his discretion under section 36

of the 1991 Act. Leave was granted by the Divisional Court and

an order made for an expedited hearing.

The applicant however became eligible for release on licence

on 5 December 1993. He was released on licence on 17 December

1993. Since his release, the applicant's health has improved and

his CD4 count has risen.

b. Relevant domestic law and practice

Section 36 of the Criminal Justice Act 1991 provides:

"1. The Secretary of State may at any time release a

prisoner on licence if he is satisfied that

exceptional circumstances exist which justify the

prisoner's release on compassionate grounds."

Circular Instruction 36/1992 concerns the policy applied in

respect of early release of prisoners on compassionate grounds

under the Criminal Justice Act 1991. It recommends early release

where a prisoner is suffering from a terminal illness and death

is likely to occur soon (within three months is given as an

appropriate period). The criteria to be satisfied are:

"- the prisoner is suffering from a terminal illness

and death is likely to occur soon; or the prisoner is

bedridden or similarly incapacitated, and

- the risk of further crime is past, and

- there are adequate facilities for the prisoner's

care and treatment outside prison, and

- early release will bring some significant benefit to

the prisoner or his/her family."

Pursuant to section 35(1) of the 1991 Act as modified by

paragraph 8(6)a of Schedule 12 which applied at the relevant time

to prisoners such as the applicant sentenced prior to 1 October

1992 to a term of 4 years' imprisonment, the Secretary of State

may if recommended to do so by the Parole Board release a

prisoner on licence after he has served one-third of his

sentence. Decisions as to suitability for release on licence are

based on reports concerning the prisoner's conduct in prison, his

personal and criminal history, his approach to offending

behaviour, plans on release and medical condition.

COMPLAINTS

The applicant alleges violations of Articles 2, 3, 5 para.

1, 8 and 14 of the Convention. He also invokes Articles 1 and 2

of Protocol No. 4 to the Convention.

The applicant submits that the Home Office is discriminating

against prisoners suffering from AIDS none of whom are released

early on compassionate grounds. He alleges that prisoners

suffering from non-life threatening conditions such as senile

dementia are being released, as well as persons with cancer which

is treatable. He considers that AIDS patients who suffer from a

painful and incurable condition are being left in prison to die.

Though he has now been released on parole, he alleges that he

should have been released at a much earlier stage and that by

virtue of his continued incarceration there is a substantial risk

that his life expectancy has been shortened.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 April 1993 and

registered on 1 September 1993.

On 8 September 1993, the Commission decided to communicate

the application to the Government and to ask for written

observations on the admissibility and merits of the complaints

under Articles 3 and 14 of the Convention. The Commission granted

the case priority under Rule 33 of its Rules of Procedure.

The Government's observations were submitted on 6 October

1993 and the applicant's observations in reply were submitted on

23 March 1994 after two extensions in the time-limit.

On 21 January 1994, the Commission granted the applicant

legal aid.

On 9 March 1994, the Commission examined the application.

THE LAW

1. The applicant complains that he was refused release from

prison on compassionate grounds. While he has now been released

on licence having served a third of his sentence, he submits that

he should have been released earlier and that there is a risk

that his life expectancy has been shortened as a result. He

invokes Articles 2, 3, 5 para. 1, 8 and 14 (Art. 2, 3, 5-1, 8,

14) of the Convention and Articles 1 and 2 of Protocol No. 4 (P4-

1, P4-2).

The respondent Government submit that the applicant has not

exhausted domestic remedies as required by Article 26 (Art. 26)

of the Convention, in particular, since he did not challenge the

refusal of the Secretary of State to grant early release on

compassionate grounds by way of judicial review.

While judicial review proceedings were commenced by the

applicant, they were overtaken by the applicant's release on

licence. The applicant submits that in any case the Secretary of

State enjoys a discretion as to whether to order release and

submits that judicial review would not have furnished an

effective or sufficient remedy.

The Commission however for the reasons set out below finds

it unnecessary to decide whether judicial review, if commenced

at an earlier stage, would have constituted an effective remedy

for the purposes of Article 26 (Art. 26) of the Convention.

2. The applicant complains that the refusal to release him

earlier on compassionate grounds constituted a violation of

Articles 2 and 3 (Art. 2, 3) of the Convention. These provide

insofar as relevant:

Article 2 (Art. 2) of the Convention

"1. Everyone's right to life shall be protected by law.

No one shall be deprived of his life intentionally save in

the execution of a sentence of a court following his

conviction of a crime for which this penalty is provided by

law."

Article 3 (Art. 3) of the Convention

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

degrading treatment or punishment."

As regards Article 3 (Art. 3) of the Convention, the case-

law of the Convention organs establishes that ill-treatment must

attain a minimum level of severity if it is to fall within the

scope of the provision. Further, the Court has held that the

suffering occasioned must attain a certain level before treatment

can be classified as inhuman. The assessment of that minimum is

relative and depends on all the circumstances of the case,

including the duration of the treatment and its physical and

mental effects (see eg. Eur. Court H.R., Ireland v. the United

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

para. 162).

The Commission notes that the applicant has now been

released from prison and that his health has improved. It does

not appear that during his detention in prison the applicant

failed to receive the requisite medical care. His condition was

also subject to continuous monitoring during that period. While

the report of the Probation Officer indicates that the applicant

experienced his environment more harshly as a result of his

illness and suffered feelings of isolation, it nonetheless

appears that the applicant, who was reported as a model prisoner,

coped well with prison life. The applicant has further provided

no substantiation of his allegation that his period of detention

has had any longterm effect on his health or his life expectancy.

In these circumstances, the Commission finds no appearance

of a failure to protect the applicant's life nor that the

applicant by reason of the failure to release him at an earlier

date was subjected to torture or inhuman or degrading treatment

or punishment.

It follows that this part of the application must be

rejected as manifestly ill-founded within the meaning of Article

27 para. 2

(Art. 27-2) of the Convention.

3. The applicant complains that he has been subject to

discrimination in the operation of the provisions for early

release. The Commission has examined this complaint under

Articles 5 and 14

(Art. 5, 14) of the Convention which provide as relevant:

Article 5 (Art. 5) of the Convention

"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..."

Article 14 (Art. 14) of the Convention

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

According to the case-law of the Convention organs, Article

14 (Art. 14) of the Convention in effect has no independent

existence but plays an important role in supplementing the other

provisions of the Convention and its Protocols. Article 14 (Art.

14) safeguards individuals, placed in similar situations, from

discrimination in the enjoyment of the rights and freedoms set

out in those other provisions. A measure which as such might be

in conformity with the normative provision in issue may

nevertheless violate that provision taken in conjunction with

Article 14 (Art. 14), if it is applied in a discriminatory

manner. It is as though Article 14 (Art. 14) formed an integral

part of each of the provisions laying down the specific rights

and freedoms (see eg. Eur. Court H.R. Belgian Linguistic judgment

of 23 July 1968, Series A no. 6 p. 33-34, paras. 8-9).

As regards the present case, the Commission notes first of

all that complaints concerning length of sentence passed after

due process of law by a judge generally do not fall within the

scope of the Convention (see eg. No. 5871/72, Dec. 30.9.74, D.R.

1 p.54). Further there is no right as such to be released on

licence. Where however procedures relating to the release of

prisoners appear to operate in a discriminatory manner, the

Commission has held that this may raise issues under Article 5

in conjunction with Article 14 (Art. 5+14) of the Convention (see

eg. No. 11077/84, Dec. 13.10.86, D.R. 49 p. 170).

The applicant has alleged that he is discriminated against

as an AIDS sufferer since he has been refused release on

compassionate grounds notwithstanding the terminal nature of his

illness whereas prisoners suffering from other types of life

threatening illness have been so released.

The Government deny that the applicant has been subject to

any form of discrimination, submitting that all prisoners are

subject to the same criteria in determining whether release

should be granted. In each case, they submit, regard is had to

the risk of re-offending and to whether the likelihood of death

is imminent. They have given details of prisoners who have been

released, for example, a prisoner suffering from acute leukaemia

with a life expectancy of 2 months; a prisoner suffering from a

lung complaint with a life expectancy of days rather than weeks;

and a prisoner who had suffered three heart attacks whom the

medical officer considered ran the risk of another attack under

the stress of detention.

The Commission notes that the authorities appear to order

release where life expectancy of a prisoner is in the order of

a few weeks or months. In the case of the applicant, the

Commission recalls that his life expectancy was given after his

trial as 2 years and this was still the prognosis in June 1993.

The applicant's doctor subsequently gave an estimate of 6-12

months. During his detention it does not appear that the

applicant suffered any sudden deterioration in his condition or

that he was incapacitated or threatened by the development of the

opportunistic infections to which AIDS sufferers are prone.

The Commission concludes that there is no indication that

the applicant was treated differently in the exercise of the

Secretary of States's discretion to order release on

compassionate grounds on account of his status as an AIDS

sufferer.

It follows that this part of the application is manifestly

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

of the Convention.

4. The applicant has also invoked Article 8 (Art. 8) of the

Convention and Articles 1 and 2 of Protocol No. 4 (P4-1, P4-2)

to the Convention.

The Commission has examined the applicant's complaints as

submitted by him. It finds no appearance of a violation of

Article 8 (Art. 8) of the Convention and notes that the United

Kingdom is not a party to Protocol No. 4 (P4).

It follows that these complaints must be rejected as

manifestly ill-founded and incompatible ratione personae with the

provisions of the Convention respectively within the meaning of

Article 27 para. 2

(Art. 27-2).

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (C.A. NØRGAARD)

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GRICE v. THE UNITED KINGDOM

GRICE v. THE UNITED KINGDOM

LEXI