FIRST SECTION

DECISION

Application no. 54026/16 Moinul ABEDIN against the United Kingdom

The European Court of Human Rights (First Section), sitting on 1 2 November 2019 as a Committee composed of:

Aleš Pejchal , President, Tim Eicke, Jovan Ilievski , judges, and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 8 September 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Moinul Abedin, is a British national, who was born in 1974 and lives in Birmingham. He was represented before the Court by Mr D. Guedalla of Birnberg Peirce and Partners, a firm of solicitors based in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr James Gaughan , of the Foreign and Commonwealth Office.

2 . The facts of the case may be summarised as follows.

3 . The applicant was arrested on 20 November 2000. He was subsequently convicted of doing an act with intent to cause explosions likely to endanger life. On 27 February 2002 he was sentenced to twenty years ’ imprisonment.

4 . In November 2010 the applicant reached the halfway point of his sentence and became eligible for parole (see paragraph 14 below).

5 . In August 2012 he was released on licence following a recommendation by the Parole Board. However, he was recalled to prison in February 2013 on the basis that he had breached his licence conditions.

6 . In June 2015, the Parole Board again recommended the applicant for release. The applicant was released on licence on 20 July 2015.

7 . On 20 November 2015 the applicant reached the three-quarters stage of his sentence.

8 . The applicant remains at liberty and subject to licence conditions. His sentence, and his licence conditions, will expire on 20 November 2020.

9 . Pursuant to the legislation in force at the time of sentencing (see paragraphs 14-17 below), after being recalled to prison a person could be re ‑ released on licence at any time following a Parole Board recommendation. The licence conditions would expire at the three-quarters stage. If not re-released earlier, he was entitled to automatic release on licence at the three-quarters stage of his sentence.

10 . In July 2008 an amended early release regime entered into force (see paragraph 18 below). The net effect of the new provisions was that a person recalled to prison was no longer entitled to automatic release at the three ‑ quarters stage. Instead, he could only be released before the expiry of his sentence upon the recommendation of the Parole Board. No matter what the release date, the licence conditions would expire on the date of expiry of the original sentence.

11 . In 2014 (while still in custody) the applicant sought judicial review of the early release provisions now applicable in his case. He argued that the effect of the provisions was to change his automatic release date from the three-quarters stage of his sentence (20 November 2015) to the sentence expiry date (20 November 2020). He claimed that this change was in violation of Articles 7 and 5 of the Convention, relying in particular on this Court ’ s judgment in Del Río Prada v. Spain [GC], no. 42750/09 , ECHR 2013.

12 . In its judgment of 3 February 2015, the Divisional Court considered that the reasoning in Del R í o Prada was very specifically geared to the facts of the case and, therefore, not authority for the general proposition that any unforeseeable and detrimental change to provisions concerning release on licence altered the “penalty” for the purposes of Article 7 of the Convention. In any case, the judges considered themselves bound by previous Court of Appeal case-law which had held that a legislative change to conditions relating to early release did not interfere with the “penalty” that had been imposed.

13 . An application for permission to appeal to the Court of Appeal was dismissed on the papers. The judge underlined in particular that the change in the early release provisions did not increase the “penalty” but concerned only the execution of the sentence; in this respect it had to be distinguished from Del R í o Prada , where the scope of the penalty had been redefined. The request for permission to appeal was again dismissed, following an oral hearing, on 10 March 2016. The judge agreed with the reasons given by the Divisional Court and by the judge who had refused leave on the papers.

14 . Section 35 of the Criminal Justice Act 1991 provided that after a long-term prisoner had served one half of his sentence, the Secretary of State could, if recommended to do so by the Parole Board, release him on licence.

15 . Section 33(2) of the Act provided that as soon as a long-term prisoner had served two-thirds of his sentence, it was the duty of the Secretary of State to release him on licence.

16 . Pursuant to section 33(3) of the Act, as soon as a prisoner who had been released on licence and been recalled to prison would (but for his release) have served three-quarters of his sentence, it was the duty of the Secretary of State to release him on licence.

17 . Section 37(1) of the Act provided that where a prisoner was released on licence, the licence would remain in force until the date on which he would (but for his release) have served three-quarters of his sentence. There was an exception in the case of prisoners released pursuant to section 33(3), whose licence conditions would remain in force until the expiry of the sentence.

18 . The Criminal Justice and Immigration Act 2008 introduced a new section 50A into the 1991 Act, which entered into force on 14 July 2008. Under the amended early release regime, a prisoner who had been recalled to prison after early release would be detained until the end of his sentence unless the Parole Board recommended his release on licence. The licence conditions would expire at the expiry of the original sentence.

COMPLAINTS

19 . The applicant complained that the changes to the legislative provisions relating to early release were in breach of Article 7 of the Convention.

20 . He further argued that any detention after the three-quarters stage of his sentence was not foreseeable and was therefore in breach of Article 5 of the Convention.

THE LAW

21 . The Court considers it expedient to examine first the applicant ’ s Article 5 complaint.

22 . The applicant complained that any detention after the three-quarters stage of his sentence was in violation of Article 5, which provides insofar as relevant 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;”

23 . The Government argued that this question did not arise on the facts since the applicant had not been detained after the three-quarters stage of his sentence. The applicant contended that since he remained subject to licence and thus liable to be returned to custody until November 2020, he remained a victim of the breach of Article 5 that would arise in the event of his recall. Citing Burden v. the United Kingdom [GC], no. 13378/05, § 35, ECHR 2008, he argued that victim status is retained where there is a “real risk” that an individual will be treated in a manner that violates his human rights in the “not too distant future”.

24 . The Court notes that the applicant was released on 20 July 2015, four months before the three-quarters stage of his sentence had been reached. He currently remains at liberty. Article 34 of the Convention requires that an applicant should claim to have been actually affected by the violation he alleges. Since the applicant has not been detained after the three-quarters stage of his sentence, he cannot be considered a victim of any alleged violation of Article 5. The Court does not accept his submission that a “real risk” of unlawful detention is present here such as to establish his victim status in respect of this complaint. Any discussion of further detention is highly speculative given that recall can only occur where there has been a breach of the licence conditions and it is within the power of the applicant to comply with those conditions if he wishes to remain at liberty. Indeed, it would appear that he has successfully complied with the conditions for the past four years.

25 . Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

26 . The applicant complained of a breach of the second sentence of Article 7 § 1 of the Convention, which provides, in so far as relevant, as follows:

“ ... Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

27 . In the Government ’ s submission, the application of the new early release regime did not violate the applicant ’ s Article 7 rights. They relied on this Court ’ s decisions in Hogben v. the United Kingdom , no. 11653/85, Commission decision of 3 March 1986, Decisions and Reports 46, p. 231; and Uttley v. the United Kingdom ( dec. ), no. 36946/03, 29 November 2005. They contended that the change did not alter the scope of the penalty imposed on the applicant, but only its means of execution and even then, only in a very minor way. Even if the Court took the view that there had been a change to the scope of the penalty, such change was, in the Government ’ s view, clearly foreseeable. The Government argued that the reasoning in Del Río Prada , cited above, was very fact-specific.

28 . The applicant submitted that the Court ’ s judgments in Del Río Prada , cited above , § 89, and Arrozpide Sarasola and Others v. Spain , nos. 65101/16 and 2 others , § 121, 23 October 2018, had confirmed that new early release provisions could lead to the modification of the scope of a sentence. Relying heavily on Del Río Prada , cited above , he argued that when he was sentenced he understood that he would be automatically released at the three-quarters stage, even if he had been recalled to custody. If he was released earlier, he understood that his licence would lapse at the three-quarters stage with no possibility of recall. However, his entitlement to release or lapse of his licence at the three-quarters stage had been removed by the changes to the early release provisions. These changes were novel and unexpected and therefore could not have been foreseen by him at the time of sentencing.

29 . In the present case, there is no dispute that the “penalty” was the sentence of twenty years ’ imprisonment imposed on the applicant. The key question identified by the applicant in his written observations was whether his entitlement to automatic release at the three-quarters stage of his sentence formed part of the scope of the “penalty” imposed upon him for the purposes of Article 7.

30 . The Court reiterates that the applicant was released on licence on 20 July 2015, four months before the three-quarters stage of his sentence had been reached, and remains at liberty. Given that he was released before entitlement to automatic release under the prior legislation would have arisen, the applicant cannot show that a longer period of imprisonment, and thus a heavier penalty in this respect, was imposed upon him. However, the Court acknowledges that the impact of the amended legislation in the applicant ’ s case was to extend the duration of the licence conditions so that rather than expiring on 20 November 2015, as they would have done under the prior legislative regime, they will now expire only on 20 November 2020. The only question to be examined in the present case, therefore, is whether the duration of the applicant ’ s licence conditions formed part of the scope of the “penalty” imposed on him.

31 . The Court observes that the facts of the present case are very similar to those examined by the Commission in Uttley , cited above. There, the Commission considered that the licence conditions imposed on the applicant did not form part of the “penalty” within the meaning of Article 7 but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed.

32 . The starting point for the Court ’ s examination of whether Article 7 was engaged here must be, as explained in Uttley and reaffirmed explicitly in the Del Río Prada judgment (§ 83), that where the nature and purpose of a measure relate to a change in the regime for early release, this does not form part of the “penalty” within the meaning of Article 7. The applicant ’ s submission that Del Río Prada and Arrozpide Sarasola and Others confirmed that early release provisions could lead to the modification of the scope of the sentence overly simplifies the Court ’ s analysis in that case. What the Court said in Del Río Prada, and reiterated in Arrozpide Sarasola and Others , § 121, was:

“89. ... [T]he Court does not rule out the possibility that measures taken by the legislature, the administrative authorities or the courts after the final sentence has been imposed or while the sentence is being served may result in the redefinition or modification of the scope of the ‘ penalty ’ imposed by the trial court. When that happens, the Court considers that the measures concerned should fall within the scope of the prohibition of the retroactive application of penalties enshrined in Article 7 § 1 in fine of the Convention ...”

33 . The Court went on to underline that such changes had to be distinguished from changes made to the manner of execution of the sentence, which did not fall within the scope of Article 7 § 1 in fine . It can be seen, therefore, that the critical element in determining the applicability of Article 7 to such a case is whether the changes introduced had the effect of modifying or redefining the penalty itself.

34 . In Del Río Prada the multiple, lengthy, individual sentences imposed on the applicant (amounting to over 3,000 years ’ imprisonment) were converted into a single thirty-year sentence pursuant to applicable legislation. At the same time, Spanish law provided for prisoners to earn remissions of sentence for work done in detention, at a stipulated rate of one day ’ s remission for every two days ’ work. As the Court explained,

“101. ... remissions of sentence gave rise to substantial reductions of the term to be served – up to a third of the total sentence – unlike release on licence, which simply provided for improved or more lenient conditions of execution of the sentence (see, for example, Hogben and Uttley , both cited above ...”

35 . The Article 7 issue arose because instead of applying remissions earned to the applicant ’ s thirty-year sentence, as had previously been the judicial practice, the authorities applied the remissions earned by the applicant to the individual sentences in line with a recent change in the case ‑ law. The Court considered that the overall effect of the change to the practice in Spain was, essentially, to modify or redefine the penalty imposed on the applicant from one of thirty years less any remissions earned to one of thirty years with no entitlement to remissions, resulting in a violation of Article 7 (§§ 100, 103, 109 and 117).

36 . The same considerations do not apply to the present case. The applicant ’ s penalty of twenty years ’ imprisonment has not been changed, and it is to that penalty that the early release provisions continue to apply. There has been no conceivable redefinition, or modification, of the “penalty” imposed on the applicant. Nothing in the Court ’ s judgment in De l Río Prada called into question the central proposition outlined in Uttley that where the nature and purpose of a measure relate exclusively to a change in the regime for early release, this does not form part of the “penalty” within the meaning of Article 7. The Court is satisfied that this was the case here. The new provisions on the duration of licence conditions amounted to a change to the manner of execution of the applicant ’ s sentence and as such did not fall within the scope of Article 7 § 1 in fine .

37 . Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2019 .

Renata Degener Aleš Pejchal Deputy Registrar President