Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17143/90

by Eric OLDHAM

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 September 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

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 4 July 1990

by Eric OLDHAM against the United Kingdom and registered on

11 September 1990 under file No. 17143/90;

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 1948.

The facts of this matter as submitted by the applicant may be

summarised as follows.

In 1970 the applicant was sentenced to life imprisonment for

manslaughter. The Court accepted that the applicant had suffered

brain damage at birth. The applicant did not appeal against his

conviction or sentence.

In 1974 the applicant underwent brain surgery to remove the

damaged section of his brain. In 1981 he was released on life

licence. In 1982 the applicant married for a second time. The

applicant and his second wife are now divorced.

In 1983 the applicant's licence was revoked after he was

convicted of handling a stolen credit card. In 1984 the applicant

was, once again, released on life licence. In December 1985 the

applicant had an argument with his wife. As a result of the

differences between himself and his wife, the applicant went to live

in a probation hostel. Five days after this and upon recommendation

of an officer of the probation service who considered the applicant's

wife to be "afraid of him", the Home Secretary revoked the applicant's

licence under Section 62 (2) of the Criminal Justice Act 1967. The

probation service recommended that the applicant be recalled to prison

and he was recalled on 16 December 1985, making written

representations to the Secretary of State about one week later. The

Parole Board confirmed the revocation of the applicant's licence on

2 May 1986.

On 27 October 1989 the applicant was notified that the Home

Secretary had decided, upon the recommendation of the Parole Board and

in consultation with the Judiciary that, subject to the applicant's

continued good conduct and to the satisfactory completion of a period

of six months n open conditions and nine months in a pre-release

employment scheme, the applicant should be released on life licence.

On 23 November 1989 the applicant was transferred to Leyhill

Open Prison. He began working at the local branch of NACRO (the

National Association for the Care and Resettlement of Offenders). On

6 December 1984 the applicant was notified that his provisional

release date was 22 February 1991.

On 23 March 1990 the applicant failed to return to Leyhill at

the correct time. A taxi driver had taken him to Bristol Prison

instead of to a bus stop from where the applicant and other prisoners

were to be picked up and taken to Leyhill. The applicant was received

into Bristol Prison and remained there for five weeks. At the end of

this period the applicant was informed that the Home Secretary had

decided that he should spend an additional nine months at Leyhill and

consequently that his provisional release date had been put back to

25 October 1991. On 8 May 1990 the applicant resumed his work at

NACRO. On 9 May 1990 the applicant failed to return to Leyhill. On

10 May 1990 the applicant was received into Bristol Prison.

On 25 June 1990 the applicant was notified that the Home

Secretary had decided to cancel the applicant's provisional release

date. In addition, the applicant was informed that he was to be

transferred to a Category C establishment (he had previously been a

Category D prisoner). The applicant was furthermore informed that he

was to receive a review in September 1991.

The applicant petitioned the Secretary of State for the

purpose of asking for his recall to be considered by a body other than

the Parole Board. This petition was refused. The applicant then

petitioned the Court of Appeal for the purpose of seeking leave to

appeal out of time. This petition was also refused.

COMPLAINTS

The applicant complains that his rights under Article 5

para. 4 of the Convention have been violated by virtue of the fact

that he is unable to have his continued detention reviewed by an

independent body capable of ordering his release. He further

complains that he is denied any form of redress against information

from the Home Office which, he alleges, is inaccurate. The applicant

further complains that his rights under Article 5 para. 5 of the

Convention have been violated on the ground that he was not given an

enforceable right to compensation under United Kingdom law in respect

of the violation of Article 5 para. 4.

The applicant also complains that the Parole Board took almost

six months to consider his representations made after his recall in

December 1985.

THE LAW

1. The applicant complains that the Parole Board took six months

to consider his representations made on recall in December 1985.

However, the Commission is not required to decide whether or

not this complaint discloses any appearance of a violation of the

Convention as Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with the matter ... within a period of six

months from the date on which the final decision was taken".

In the present case, assuming that no domestic remedies were

available to the applicant to challenge the time taken for the Parole

Board's review, the review of 2 May 1986 itself falls to be considered

as the final decision for the purposes of Article 26 (Art. 26) of the

Convention. Accordingly, the applicant's complaint in respect thereof

should have been brought within six months of that date. The present

application, however, was only submitted to the Commission on 4 July

1990, that is, more than six months after this date. Furthermore, an

examination of the case does not disclose the existence of any special

circumstances which might have interrupted or suspended the running of

that period.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also alleges a violation of Article 5 paras. 4

and 5 (Art. 5-4, 5-5) of the Convention by reason of the lack of a

court review of his continued detention. The Commission recalls that

in the case of Thynne, Wilson and Gunnell (Eur. Court H.R. judgment

of 23 October 1990, Series A no. 190) the European Court of Human

Rights considered these questions. It finds that they require further

examination in the present case.

The Commission therefore adjourns this part of the application.

For these reasons, the Commission unanimously

DECIDES TO ADJOURN its examination of the complaints

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

Convention as to the availability of a judicial review

of the applicant's detention and compensation;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

O. v. THE UNITED KINGDOM

O. v. THE UNITED KINGDOM

LEXI