FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75362/01 by Egon VON BÃœLOW against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 2 July 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 24 July 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Egon Von Bülow, is a United Kingdom national, who was born in 1946 and is currently serving a sentence of life imprisonment at HM Prison Erlestoke.

A. The circumstances of the case

The applicant was convicted in 1975 for the murder of a policeman and attempted murder of two other policemen arising out of an incident in the early hours of 6 July 1994 when, on being stopped by the police, he had pulled out a loaded pistol and shot all three officers. He was sentenced to mandatory life imprisonment for the murder and received two sentences, concurrent, of fifteen years for the attempted murders.

After his trial, the trial judge recommended that he serve a tariff (minimum period of detention representing the elements of retribution and deterrence) of 20 years. The Lord Chief Justice agreed.

In or about 1991, the applicant received his first Parole Board review.  His release was not recommended.

In or about November 1994, the applicant’s case was referred to the Local Review Committee.

A review was next carried out in or about April 1996. Though some progress was noted, for example, with regard to diminished aggression, it was found that he was not ready for release or a transfer to open conditions. The next formal review was set for March 1998.

By letter dated 21 August 1998, the applicant was informed that the Parole Board had not recommended release or transfer to open conditions. Recommendations were made for further development and the next review was set for August 2000.

By letter dated 25 July 2000, the applicant was informed that the Secretary of State had given fresh consideration to the tariff in his case. He had decided to set the tariff at 23 years and as this period had expired, tariff was no longer a factor in his continued detention.

By letter dated 27 March 2001, the applicant was informed that the Parole Board had not recommended his release or transfer to an open prison. Though some improvement had been observed, it was noted that the reports on the applicant agreed that he still had some way to go before a move to open conditions could be contemplated. As his progress in a category C prison had been encouraging however, his next review was set for March 2002.

B. Relevant domestic law and practice

(a) Life sentences

Murder carries a mandatory sentence of life imprisonment under the Murder (Abolition of Death Penalty) Act 1965. A person convicted of other serious offences (e.g. manslaughter or rape) may also be sentenced to life imprisonment at the discretion of the trial judge in certain other cases where the offence is grave and where there are exceptional circumstances which demonstrate that the offender is a danger to the public and it is not possible to say when that danger will subside.

(b) Tariffs

Over the years, the Secretary of State has adopted a “tariff” policy in exercising his discretion whether to release offenders sentenced to life imprisonment. This was first publicly announced in Parliament by Mr Leon Brittan on 30 November 1983 (Hansard (House of Commons Debates) cols. 505-507). In essence, the tariff approach involves breaking down the life sentence into component parts, namely retribution, deterrence and protection of the public. The “tariff” represents the minimum period which the prisoner will have to serve to satisfy the requirements of retribution and deterrence. The Secretary of State will not refer the case to the Parole Board until three years before the expiry of the tariff period, and will not exercise his discretion to release on licence until after the tariff period has been completed (per Lord Browne-Wilkinson, Ex parte V. and T. , op. cit ., at pp. 492G-493A).

Pursuant to section 34 of the 1991 Act, the tariff of a discretionary life prisoner is fixed in open court by the trial judge after conviction. After expiry of the tariff, the prisoner may require the Secretary of State to refer his case to the Parole Board which has the power to order release if it is satisfied that it is no longer necessary to detain him for the protection of the public.

A different regime, however, applies under the 1991 Act to persons  serving a mandatory sentence of life imprisonment. In relation to these prisoners, the Secretary of State decides the length of the tariff. The view of the trial judge is made known to the prisoner after his trial, as is the opinion of the Lord Chief Justice. The prisoner is afforded the opportunity to make representations to the Secretary of State who then proceeds to fix the tariff and is entitled to depart from the judicial view ( R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 Appeal Cases 531; and see the Home Secretary, Mr Michael Howard’s, policy statement to Parliament, 27 July 1993, Hansard (House of Commons Debates) cols. 861-864).

c) Release on licence of mandatory life sentence prisoners

At the relevant time, the Criminal Justice Act 1991 provided in section 35(2):

“If recommended to do so by the Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not a discretionary life prisoner.”

On 27 July 1993, the Secretary of State made a statement in Parliament explaining his practice in relation to mandatory life prisoners. The statement emphasised that before any mandatory life prisoner is released on life licence, the Secretary of State

“will consider not only, (a) whether the period served by the prisoner is adequate to satisfy the requirements of retribution and deterrence and, (b) whether it is safe to release the prisoner, but also (c) the public acceptability of early release. This means that I will only exercise my discretion to release if I am satisfied that to do so will not threaten the maintenance of public confidence in the system of criminal justice.”

In determining the principles of fairness that apply to the procedures governing the review of mandatory life sentences, the English courts have recognised that the mandatory sentence is, like the discretionary sentence, composed of both a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the tariff (see e.g. R. v. Parole Board, ex parte Bradley (Divisional Court) [1991] 1 WLR 135; R v. Parole Board ex parte Wilson (Court of Appeal) [1992] 2 AER 576).

COMPLAINTS

The applicant complains that his tariff was increased by the Secretary of State to 23 years from the 20 years stipulated by the trial judge. This usurped the role of the judiciary and imposed a heavier penalty that that fixed by the trial judge. This was in effect re-sentencing and retrospective sentencing by a politician and member of the executive, which was not pronounced out publicly. He invokes Articles 6 § 1 and 7 in this respect.

The applicant also invokes Article 5 § 4 of the Convention concerning his continued detention after the expiry of the tariff.

THE LAW

1. The applicant complains about the role played by the Secretary of State in increasing his tariff to 23 years, invoking Article 6 § 1 (right to fair trial by an independent and impartial tribunal) and Article 7 (prohibition of retrospective criminal penalties).

Article 35 § 1 of the Convention however provides that the Court may only deal with a matter where it has been introduced within six months from date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect or prejudice on the applicant (see e.g. Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, DR 57, p. 108).

In the present case, the applicant was informed by letter dated 25 July 2000 that the Secretary of State had increased his tariff from the judicial recommendation of 20 years to the period of 23 years. Assuming therefore that no remedy lay in the domestic courts against this decision, the applicant’s complaints in this regard, which were first introduced before the Court on 3 June 2001, have been introduced more than six months after he was informed of the decision.

This part of the application must therefore be rejected as out of time pursuant to Article 35 §§1 and 4 of the Convention.

2. The applicant also complains about the lack of proper review of the lawfulness of his continued detention invoking Article 5 § 4 of the Convention, which provides:

“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 Court, recalling the recent judgment in Stafford v. the United Kingdom , no. 46295/99, ECHR 2002-..., considers that similar issues arise in the present case. It decides to adjourn further examination of this part of the application pending its notification to the respondent Government for their written observations on its admissibility and merits.

For these reasons, the Court unanimously

Decides to adjourn the applicant’s complaints concerning the review of the lawfulness of his detention after the expiry of his tariff;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonp ää Registrar President