THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43470/98 by Prithpal Singh SEHMI against the United Kingdom

The European Court of Human Rights ( Third Section ), sitting on 6 April 2000 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mrs F. Tulkens, Mr W. Fuhrmann, Mr K. Jungwiert, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 25 June 1998 and registered on 15 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1957 and he is currently in prison in Kent, the United Kingdom. He is represented before the Court by Mr T. Greene, a lawyer practising in London. The facts of the case, as submitted by the applicant, may be summarised as follows.

In or around 1996 the applicant was charged with conspiring to contravene section 20 of the Misuse of Drugs Act 1971, contrary to section 1(1) of the Criminal Law Act 1977. The particulars of the offence were that between 1 January 1991 and 8 May 1996 the applicant conspired with others to assist in the commission in the Netherlands of an offence punishable under the law of the Netherlands and corresponding to the law of the United Kingdom, namely, the manufacture of methylenedioxymethylamphetamine (“Ecstasy”). The applicant was alleged to have played a role in arranging for the purchase of the constituent chemicals used in the production of Ecstasy from Russia for transportation to the Netherlands or Belgium where the Ecstasy would be produced. Much of the evidence against the applicant and his co-conspirators came from a British under-cover police officer who had infiltrated the organisation in a joint British and Dutch operation.

The trial of four of the applicant’s co-conspirators began in the Netherlands in November 1996. They had been charged with a number of offences relating to the same conspiracy including charges relating to the manufacture of Ecstasy. The prosecutor requested a custodial sentence of 6 years (which took account of the time spent in pre-trial detention) for WF, who was alleged to be a main player in the conspiracy. However, the Dutch court declared one of the principal charges against WF relating to the manufacture of Ecstasy inadmissible in so far as it related to acts committed outside the Netherlands and decided that that charge was otherwise not proven against him. Between December 1996 and 26 February 1997 these co-conspirators were convicted on the other charges which were not directly related to Ecstasy production. WF was found guilty of having been concerned in the importation of cannabis, of possession of firearms and ammunition, of possession of Ecstasy pills and of having being concerned in the supply of cocaine and amphetamines, and he was sentenced to 40 months’ imprisonment. The second accused was found guilty of offences almost identical to WF and he was sentenced to 30 months’ imprisonment. The third accused was found guilty of having been concerned in the importation of cannabis, of handling two stolen watches, of having been in possession of a pistol and of having been concerned in the supply of cocaine and amphetamines, and he was sentenced to 24 months’ imprisonment. The fourth accused was found guilty of having been concerned in the importation of cannabis and he was sentenced to 24 months’ imprisonment (6 months of it being suspended).

In April 1997 the applicant pleaded guilty in the Crown Court in the United Kingdom to the above-described charge against him. He pleaded not guilty to 4 other related charges and these were not proceeded with. In September 1997 he was sentenced to nine and a half years’ imprisonment. The maximum sentence was 14 years’ imprisonment and he received a credit of one third in the light of his guilty plea. Submissions as to the lower sentences received by his co-conspirators in the Netherlands were rejected during his sentencing hearing.

Senior Counsel’s advice dated 11 October 1997 suggested requesting leave to appeal from a single judge of the Court of Appeal (Criminal Division) on the basis that the appeal court would benefit from arguments addressing the terms of Recommendation No. R(92)17 concerning sentencing policy and the effect of that recommendation on the case of Gavin Lillie ([1995] 16 Cr. App. R (S) 534), which prohibited an English court from considering as relevant sentences imposed in other jurisdictions. The applicant applied to a single judge of the Court of Appeal (Criminal Division) for leave to appeal against sentence to that court, arguing that the sentence imposed was excessive in that it was manifestly disproportionate to that imposed on his co-conspirators in the Netherlands. On 30 December 1997 the single judge rejected the leave request, finding that there was no basis in English law upon which he could grant leave. He pointed out that the above-cited case of Gavin Lillie was binding upon him and that, in English sentencing terms, the sentence passed was unexceptional, the contrary not having been suggested by the applicant. He also found that a sentence suggested by a Dutch prosecutor would not provide any basis to challenge what was otherwise an appropriate sentence imposed by an English court.

COMPLAINTS

The applicant contends that the sentence imposed amounts to inhuman or degrading treatment or punishment contrary to Article 3 of the Convention. He also complains under Article 13 of the Convention that he did not have an effective remedy in this respect.

THE LAW

1 . The applicant contends that the sentence imposed on him amounts to treatment or punishment contrary to Article 3 of the Convention, which Article reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

He submits that the sentence imposed on him is so manifestly excessive that it amounts to inhuman or degrading treatment or punishment. He refers to the length of his sentence, the lower sentences imposed on his co-conspirators in the Netherlands (in particular the lower sentence requested by the Dutch prosecutor as regards WF) and to Recommendation No. R(92)17 of the Committee of Ministers of the Council of Europe concerning the need for European consistency in sentencing practice, as evidence of the excessive nature of his sentence.

The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. Further, the Court has held that the suffering occasioned must attain a certain level before treatment can be classified as a inhuman. The assessment of that minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects (Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). It is also recalled that it is not excluded that certain sentences may falls within the scope of Article 3 of the Convention (for example, Hussain v. the United Kingdom judgment of 21 February 1996, Reports of Judgments and Decisions 1996-I no. 4, p. 269, § 53) or that the Court could take into account relevant conclusions of an organ of the Council of Europe in its examination of a case (for example, Aerts v. Belgium judgment of 30 July 1998, Reports 1998-V, no. 83, p. 1962, § 49).

However, the Court does not consider that the length of the applicant’s sentence, of itself, falls within the scope of Article 3. Moreover, the particular circumstances of the applicant’s case would not render his sentence inhuman treatment or punishment: the applicant pleaded guilty to the serious offence of conspiring to manufacture drugs and he was sentenced, when he was approximately 40 years old, to 9 and half years’ imprisonment; he was accorded a credit of one third from the sentence initially foreseen in the light of his plea of guilty; and he does not refer to any particular personal circumstances which would render the sentence particularly severe in his case.

The applicant does not argue, as he did not before the Court of Appeal (Criminal Division), that his sentence was exceptional in British sentencing terms. He does submit that his sentence was excessive when compared to the sentences imposed on his co-conspirators in the Netherlands. However, the Court notes those persons were convicted for offences which were substantially different to the offence to which the applicant pleaded guilty. He also submits that the fact that the Dutch prosecutor initially requested a lesser sentence of six years’ imprisonment for WF, when the allegedly similar charge of conspiracy to manufacture Ecstasy was still pending against WF, demonstrates that his own sentence of nine and half years’ imprisonment was excessive and constituted treatment contrary to Article 3. However, and even assuming that the actual offence for which WF was charged and to which the applicant pleaded guilty were equivalent, the applicant has not demonstrated any material similarity between the precise facts, actions and circumstances which led to the laying of the relevant charge against each of them and which motivated the request for and imposition of the particular sentences in each case. The level of sentence initially requested by the Dutch prosecutor against WF does not therefore lend any support to the applicant’s claim as to the excessive nature of the sentence imposed on him.

In the circumstances, the Court finds that the applicant’s complaints fail to disclose treatment of such a nature or degree as to render it inhuman within the meaning of Article 3 of the Convention. This complaint is, accordingly, manifestly ill-founded and inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

Article 13 reads as follows:

“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.”

However, given the Court’s reasoning and findings above, it is of the view that the applicant has not demonstrated an arguable claim of a violation of Article 3 of the Convention and, as such, he cannot claim a right to an effective domestic remedy under Article 13 of the Convention in that respect (see, for example, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52). In such circumstances, this complaint is also manifestly ill-founded and inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President