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CLARKE v. THE UNITED KINGDOM

Doc ref: 15767/89 • ECHR ID: 001-1173

Document date: October 14, 1991

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Cited paragraphs: 0
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CLARKE v. THE UNITED KINGDOM

Doc ref: 15767/89 • ECHR ID: 001-1173

Document date: October 14, 1991

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 15767/89

by Arnold Ernest CLARKE

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 14 October 1991, the following members being

present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Sir Basil HALL

MM. C.L. ROZAKIS

L. LOUCAIDES

A.V. ALMEIDA RIBEIRO

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 9 October 1989

by Arnold Ernest Clarke against the United Kingdom and registered

on 15 November 1989 under file No. 15767/89;

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 as submitted by the parties may be summarised as

follows:

The applicant is a citizen of the United Kingdom, born in

1955. He is a salesman by profession. He is at present detained in

HM Prison Long Lartin, England.

The applicant was sentenced to life imprisonment in January

1984 in Preston Crown Court on one charge of rape. Psychiatric

evidence was adduced by the prosecution during his trial that he

suffered from a personality disorder. He was thus given a

discretionary life sentence by the court, as opposed to a fixed term

sentence, on the basis that he was a danger to the public. An appeal

against sentence was rejected by the Court of Appeal (Criminal

Division) in 1985.

The applicant states that the tariff part of his sentence was

completed in 1988 and that his case was reviewed by the Parole Board

in September 1988. The Parole Board was unable to recommend his

release on this occasion. His case will be reviewed again in December

1991.COMPLAINTS

The applicant complains under Article 5 para. 4 of the

Convention that he is unable to have the lawfulness of his continued

detention reviewed by an independent tribunal. He states that he is

being kept in prison because he is considered to be a risk to the

public. He states that he has not been examined by a doctor since his

court appearance in 1984 and that there has been no attempt at

rehabilitation whilst in prison.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 9 October 1989 and

registered on 15 November 1989.

On 13 March 1990 the Commission decided to bring the

application to the attention of the respondent Govenment but not to

invite them to submit any observations pending the outcome of the

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

Wilson judgment of 25 October 1990, Series A no. 190) before the

Court.

On 2 March 1991 the Commission invited the Government to

submit observations on the admissibility and merits of the

application. The Government's response was submitted on 13 May 1991

and the applicant's observations were submitted on 6 June 1991.

On 1 July 1991, the Commission referred the application

to the First Chamber.

THE LAW

The applicant, who is serving a discretionary life sentence,

complains of the absence of any procedure under domestic law by which

he can have reviewed by a court the continued lawfulness of his

detention. He invokes 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 Government have made no objection to admissibility.

The Commission recalls that in the Thynne, Gunnell and Wilson

cases (Eur. Court H.R., Thynne, Gunnell and Wilson judgment of

25 October 1990, Series A no. 190) the Court held that the applicants

who were serving discretionary life sentences were entitled under

Article 5 para. 4 (Art. 5-4) to take proceedings to have the

lawfulness of their continued detention decided by a court at

reasonable intervals and to have the lawfulness of any re-detention

determined by a court. The Court found that neither judicial review

nor the Parole Board satisfied these requirements.

Consequently, the Commission considers that the application

raises complex issues of of law and fact under the Convention, the

determination of which should depend on the merits. It must therefore

be declared admissible, no other ground for declaring it inadmissible

having been established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

Secretary to the First Chamber President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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