THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application No. 40787/98

by John HIRST [Note1]

against the United Kingdom [Note2]

The European Court of Human Rights ( Third Section) sitting on 1 December 1998 as a Chamber composed of

Mr J.-P. Costa, President ,

Mr N. Bratza,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mrs F. Tulkens,

Mr K. Jungwiert,

Mrs H.S. Greve, Judges ,

with Mrs S. Dollé, S ection Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 February 1998 by John HIRST [Note3] against the United Kingdom and registered on 16 April 1998 under file No. 40787/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1950 and currently detained in H.M. Prison Stocken , Leicestershire.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the applicant, may be summarised as follows:

On 11 February 1980, the applicant pleaded guilty to manslaughter on the ground of diminished responsibility. The plea was accepted. He was sentenced to life imprisonment. The Court acted on medical evidence that the applicant had a gross personality disorder to such a degree that he was amoral. The consultant psychiatrist said in his report at trial that:

".... although instability might get less over the years as he matured, should he be sent to prison, his eventual release should be approached with great caution."

The applicant's tariff period of 15 years expired on 25 June 1994. The Discretionary Lifer Panel (DLP) in that month agreed to the transfer of the applicant from a Category B to Category C prison. On 13 December 1994 the DLP decided it would not be safe to release the applicant but recommended transfer to Category D (open prison), or Category C with a review after 12 months. On 15 March 1995, the Secretary of State decided to transfer the applicant to Category C with a review after 12 months.

In November 1995, the applicant failed to obtain leave to apply for judicial review of the decision of the DLP and the decision of the Secretary of State . In April 1996, the Court of Appeal refused leave to apply for judicial review.

On 9 October 1996, the applicant's case came before another DLP who did not recommend release but transfer to a Category D prison. In paragraph 5 of the decision letter the DLP said :

" The panel were satisfied that what was advanced at the hearing as 'exceptional circumstances', namely a good release plan, the fact that four years beyond tariff, the fact that completed a pre-release course in Category C, the fact that previously been recommended for Category D status and the prospect of employment, did not amount to exceptional circumstances and that release without progress through  open conditions posed an unacceptable risk."

On 20 November 1996, the Secretary of State rejected the recommendation of transfer to an open prison but directed an early review of the applicant's case (i.e. after 18 months had expired from 9 October 1996). The applicant applied for leave to apply for judicial review of both decisions but leave was refused on 11 April 1997.

On 21 October 1997, the applicant re-applied for leave for judicial review. Mr Justice Potts refused leave against the DLP but granted leave to apply in respect of the decision of the Secretary of State. Mr Justice Potts stated:

"..... a prisoner who has spent a long period in custody should be tested in open conditions before being released into the community: satisfactory completion of such testing is an indication that a prisoner is able to cope with the stresses of life outside prison and is therefore a cogent factor to take into account against all the other available material in deciding whether or not a prisoner can safely be released. Such an approach is undoubtedly sensible .....

I think it is arguable that the Secretary of State's decision not to recategorise this applicant as a Category D prisoner was irrational and one that no reasonable Home Secretary could reasonably have reached."             

The applicant's application for judicial review has not yet been heard.

The DLP was due to consider the applicant's case on 2 April 1998. The result of that review is not known.

B. Relevant domestic law and practice

Section 34 of the Criminal Justice Act 1991 makes provision for the Parole Board (known in this context, as the Discretionary Life Panel) to have power to direct the Secretary of State to release discretionary life prisoners. Subsection (4) states :

" The Board shall not give a direction under subsection (3) above with respect to a discretionary life prisoner unless...

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."

COMPLAINTS

The applicant alleges a breach of Article 5 § 4 of the Convention as he claims that his continued detention is unlawful. He states that he no longer poses a threat to the public, that his tariff is in effect being unlawfully extended by the DLP, that the DLP is not impartial, that there is no right of appeal, that the review process is too slow and that the burden of proof wrongly falls on the prisoner to show that he is not a danger to the public. The applicant states that this breaches Article 6. The applicant also alleges that his continued detention on these terms amounts to inhumane treatment and therefore breaches Article 3. He also complains of a breach of Article 8, of the lack of an effective remedy under Article 13 and of being victimized as a political prisoner and litigious in breach of Article 14.

THE LAW

1. The applicant complains that the reviews by the DLP do not meet the requirements of Article 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 applicant alleges a violation in connection with the proceedings before the DLP in a number of respects, in that he complains that the procedure was not lawful and not impartial, that there was no appeal and that the review process is not provided speedily.

The applicant also alleges that the review proceedings of the DLP were in breach of Article 6 of the Convention, which, inter alia , provides for fair trial before an independent and impartial tribunal in the determination of a criminal charge or civil rights and obligations.

The Court recalls that in the case of A.T. v. the United Kingdom (No. 20448/92, Comm. Rep. 29.11.92) the Commission found a violation of Article 5 § 4 in respect of the delay of 20 months before a review of the continued detention of a discretionary life prisoner. The Court accordingly finds that serious issues of fact and law arise which require further examination. It proposes to adjourn this aspect of the application.

2. The applicant alleges that his continued detention was in itself inhuman and degrading treatment with regard to the failure of the DLP to authorise his release, invoking Article 3 of the Convention which provides:

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

The case-law of the Convention organs establishes 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 (see eg . Eur. Court HR, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).             

The Court recalls that the applicant has not provided any details about the conditions within the prison or substantiated in what way his continued detention discloses treatment of such severity as falls within the scope of Article 3 of the Convention.

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 either inhuman or degrading within the meaning of Article 3 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3. The applicant alleges that the proceedings before the DLP breached his rights under Article 8 of the Convention, which, inter alia , protects the right to respect for private life.

Insofar as the applicant appears to complain that his continued detention interferes with his private life contrary to Article 8 § 1, the Court would note that his detention is based on a conviction and sentence imposed by a competent court in respect of a serious crime of violence. In these circumstances, the Court considers that any interference with the applicant's right to respect for private life must be regarded as conforming with the requirements of Article 8 § 2, namely as being in accordance with law and necessary in a democratic society for the prevention of crime and the protection of the rights of others (see eg . No. 15882/89, Botka and Paya v. Austria, Comm. Report 29.3.93, D.R. 74, p. 48). Insofar as any issues arise as to the procedural safeguards applicable in relation to the continuation of this detention, the Court finds these fall to be examined under Article 5 § 4, which may be regarded as the lex specialis .

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant invokes Article 14 of the Convention, which prohibits discrimination in the enjoyment of the other rights guaranteed under the Convention, alleging that he is treated as a political prisoner and penalised since he is perceived as being litigious.

The Court has examined the material submitted by the applicant. However, it does not disclose any indication that the applicant has suffered a difference in treatment on any ground such as political persuasion or that the applicable procedures have been applied to him in any manner which might be regarded as discriminating against him in comparison to any other discretionary life prisoners in a relevant, similar position.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

5. Finally, the applicant claims a lack of effective remedy under Article 13 of the Convention, which provides:

"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 Court recalls however that Article 13 does not require a remedy under domestic law in respect of any alleged violation of the Convention.  It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court HR, Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, § 52).

The Court finds that the applicant cannot be said, in light of its findings above, to have an "arguable claim" of a violation of Articles 3 or 8 of the Convention.

Insofar as the applicant invokes Articles 5 and 6, the Court recalls that Article 13, as a more general guarantee, does not apply in cases where the more specific guarantees of Articles 5 and 6 apply, these provisions acting as a lex specialis in relation to Article 13 and absorbing its requirements. The Court accordingly finds that no separate issue arises under Article 13 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaint concerning the proceedings for review of his continued detention;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President [Note4]

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.

[Note4] “President” is also put if the Chamber is not presided over by the Section President (Section Vice President or other judge according to seniority).