Lexploria

The European Commission of Human Rights sitting in private on

7 July 1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G. H. THUNE

Sir Basil HALL

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 (art. 25);

Having regard to the application introduced on 21 August 1985 by

M.H. against the United Kingdom and registered on

26 August 1985 under file No. 11731/85;

Having regard to the report provided for in Rule 40 of the Rules of

Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen, born in 1942, and at

present detained in HM Prison Cookham Wood, Rochester, Kent. She is

represented before the Commission by Mr. Michael Fisher of Fisher

Meredith and Partners, Solicitors, London.

On 6 May 1966 the applicant was jointly convicted of the murder of two

children and further convicted of harbouring a co-accused (Ian Brady)

knowing that he had committed another such murder. Their case

obtained much publicity and they were referred to as the "Moors

murderers". The applicant was sentenced to life imprisonment with no

recommendation by the trial judge as to the possible date of release.

In 1974, while a prisoner in Holloway Prison, the applicant pleaded

guilty to the offence of conspiracy to escape and was sentenced to

twelve months'imprisonment. In 1977 she was transferred to Durham

Prison, and later to Cookham Wood Prison, Rochester where she is now

detained.

Life sentence prisoners are released on licence by order of the Home

Secretary on the recommendation of the Parole Board and in

consultation with the Lord Chancellor and, if available, the trial

judge. The Home Secretary decides when the case of a life sentence

prisoner should be considered for possible release in consultation

with a Joint Committee of the Parole Board and the Home Office. Unlike

other prison sentences, there is no fixed period after which a life

sentence prisoner's case for parole will be considered. The Joint

Committee either recommends when the first formal review of the life

sentence prisoner's case should start or when his case should next be

brought before it.

This Committee considered the applicant's case several times for a

recommendation of its review. In November 1978 it recommended further

consideration in December 1981. But the first actual review by the

competent local review committee at the applicant's prison, which is

the first stage in a formal review by the Parole Board, took place in

April 1985. According to the applicant, it was widely reported by the

press and not denied by the authorities that this first review

committee recommended her release. The Parole Board did not accept

the recommendation of release; no further review will take place until

1990.On August 1980 the applicant made a first application to the European

Commission of Human Rights which was registered under file No.

9089/80. She alleged violations of Articles 3, 5 para. 4, 6 para. 1,

13 and 14 of the Convention (art. 3, art. 5-4, art. 6-1, art. 13,

art. 14). The application was declared inadmissible by the

Commission on 9 December 1980.

COMPLAINTS

In the present application the applicant claims that the length of her

imprisonment has been degrading treatment contrary to Article 3

(art. 3); that the review and renewal of her imprisonment in 1985 was

inconsistent with the requirements of Article 5 para. 4 (art. 5-4);

and that, in general, she has no effective remedy under Article 13 of

the Convention (art. 13) for the breach of her Convention rights.

The applicant submits that domestic remedies have been exhausted,

since the sentence of imprisonment following conviction was lawful,

and the decisions of the Joint Committee and the Home Secretary,

concerning the duration or remission of sentence, are not justiciable

by the courts.

1. The applicant submits that she is a victim of a violation of

Article 3 (art. 3) in that the excessive length of her detention,

extending to more than nineteen years, is in itself and, in the light

of its physical and mental effects on the applicant, inhuman and

degrading treatment. The applicant claims that the prohibition of

excessively lengthy detentions is becoming a customary rule. Reliance

is placed on the Committee of Minister's Resolution 76, para. 2 of

17 February 1976, on the practice of the Convention countries as

regards the length of life imprisonment and the remission of sentence

and on a 1977 report of the Parole Board. Reference is also made to

the decision in Kotälla v. Netherlands (No. 7994/77, Dec. 6.5.78,

D.R. 14 p. 238).

2. The applicant has also alleged a violation of Article 5

para. 4 (art. 5-4) in that the lawfulness of her detention was not

reviewed by a court and in that the grounds of the renewal of

detention for five years in the review of April 1985 were not

considered and determined by a "court" under Article 5 para. 4

(art. 5-4). The Parole Board is neither independent from the

executive and the parties, nor does it offer guarantees of judicial

procedure.

3. Finally the applicant alleges a violation of Article 13

(art. 13), since the Commission has held that Article 13 (art. 13)

requires a remedy even in cases where an indivual claims to be

victim of an alleged violation of the Convention.

THE LAW

The applicant has complained of the excessive length of her detention

and her inability to have the lawfulness of her detention reviewed by

a court. She further complains of the lack of an effective remedy in

respect of her Convention rights as required by Article 13 of the

Convention (art. 13)

1. As regards Article 3 (art. 3)

The applicant has submitted that the excessive length of her detention

constitutes a breach of Article 3 of Convention (art. 3)

in itself and because of the adverse physical and psychological

effects it has on her. Article 3 (art. 3) provides:

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

treatment or punishment".

The Commission notes that the life sentence imposed on the applicant

is a sentence imposed by a national court in full compliance with

national law. However, in the application referred to by the

applicant, Kotälla v. Netherlands (No. 7994/77, Dec. 6.5.78, D.R. 14

p. 238), the Commission held that issues may arise under Article 3

(art. 3) "in relation to any lawful sentence of imprisonment as

regards the manner of its execution and length".

Nevertheless, in the same decision the Commission held that life

imprisonment, in itself, is not prohibited under Article 3 (art. 3)

or any other Article of the Convention.

The Commission also notes that in the present case the applicant's

case was reviewed by the Parole Board in 1985 and will be reviewed

again in 1990.

Although the applicant claims that the length of the detention has

affected her physically and psychologically in an adverse manner, the

Commission recalls that the European Court of Human Rights in the case

of Ireland v. United Kingdom (Eur. Court H.R. Ireland v. the United

Kingdom judgment of 18 January 1978, Series A no. 25, para. 162) held

that "ill-treatment must attain a minimum level of severity if it is

to fall within the scope of Article 3 (art. 3)". In the case of

Tyrer v. United Kingdom the Court has also held that "the humiliation

or debasement" suffered by an individual in order to fall within

Article 3 (art. 3) "must attain a particular level and must be in any

event other than the usual element of humiliation involved in all

judicial punishment" (Eur. Court H.R. Tyrer judgment of 25 April 1978,

Series A no. 26, para. 30).

Having regard to the circumstances of the applicant's case, the

Commission does not find any evidence that the applicant has suffered

inhuman or degrading treatment contrary to Article 3 (art. 3) as these

concepts have been interpreted by the Commission and the Court.

2. As regards Article 5 para. 4 (art. 5-4)

The Applicant has submitted that her rights under Article 5 para 4

(art. 5-4) to a periodic review of the length of her continued

detention have been violated since neither the Parole Board nor any of

the auxiliary bodies constitute "courts" within the meaning of

Article 5 para. 4 (art. 5-4) in that they are not independent from the

executive and the parties and they fail to provide sufficient

procedural guarantees to the prisoner.

The provisions of Article 5 of the Convention (art. 5)

which are relevant to the applicant's contentions read as follows:

"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;

...

4. 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 in the applicant's previous application

(No. 9089/80, Dec. 9.12.80, D.R. 24 p. 227) it held that no further

judicial review of the applicant's detention is required under the

Convention since the applicant's detention was justified under

Article 5 para. 1 (a) (art. 5-1-a) as "the lawful detention of a

person after conviction by a competent court". The supervision of the

lawfulness of such detention under Article 5 para. 4 (art. 5-4) is

incorporated at the outset, in the applicant's criminal trial and

possible appeal against conviction and sentence (Eur. Court H.R.,

Vagrancy Case, judgment of 18 June 1971, Series A no. 12, para. 76).

However, the applicant claims that the review of April 1985 by the

local review committee and the Parole Board amounted, in fact, to the

renewal of the detention for five years and therefore should have been

undertaken by a "court" satisfying the requirements of Article 5

para. 4 (art. 5-4), namely independence of the parties, sufficient

procedural guarantees and speediness of proceedings.

The Commission, however, finds that it is clear from the facts of the

case that the Parole Board did not renew the applicant's sentence but

merely refused to recommend her release.

The Commission concludes that, in the present case, the requirements

of Article 5 para. 4 (art. 5-4), are incorporated in the applicant's

trial and appeal from it.

3. As regards Article 13 (art. 13)

Finally the applicant has complained that she has no effective remedy

at her disposal in respect of her claims. She has invoked Article 13

(art. 13) which provides that :

"Everyone whose rights and freedoms as set forth in this Convention

are violated shall have an effective remedy before a national

authority notwithstanding that the violation has been committed by

persons acting in an official capacity."

The Commission recalls that the European Court of Human Rights has

held in the Silver case that an individual is entitled to an effective

remedy before a national authority if he has an arguable claim to be a

victim of a breach of one of the provisions of the Convention

(Eur. Court H.R., judgment of Silver and others of 25 March 1983,

Series A no. 61, para. 113).

The Commission finds, however, that the applicant has not an arguable

claim under Article 3 (art. 3) or Article 5 para. 4 (art. 5-4) in

respect of which she should have an effective remedy before a national

authority.

The Commission concludes that an examination of the applicant's

complaints does not therefore disclose any appearance of a violation

of the Articles 3, 5, para. 4 and 13 (art. 3, art. 5-4, art. 13)

involved by the applicant. It follows that the applicant's complaints

under these provisions should be rejected as manifestly ill-founded

within the meaning of Article 27 para. 2 of the Convention

(art. 27-2).

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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H. v. THE UNITED KINGDOM

H. v. THE UNITED KINGDOM