Application No. 29193/95
by Robert COMERFORD
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 July 1995 by
Robert COMERFORD against the United Kingdom and registered on
9 November 1995 under file No. 29193/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
24 June 1997 and the observations in reply submitted by the
applicant on 13 January 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1964 and currently
serving a sentence of detention at Her Majesty's pleasure at HM Prison
Elmley, Sheerness. He is represented before the Commission by
Messrs. B. M. Birnberg & Co., solicitors practising in London.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1980, the applicant then aged 16 was convicted of murder and
sentenced to be detained at Her Majesty's pleasure. He was released
on licence in 1986.
In 1988, the applicant was arrested and charged with a number of
offences including burglary. On 13 July 1988, he was sentenced on a
guilty plea to 15 months' imprisonment. The trial judge did not revoke
the applicant's licence.
On 26 July 1988, following the recommendation of the Parole
Board, the Secretary of State revoked the applicant's licence pursuant
to section 62 of the Criminal Justice Act 1967. On 18 November 1988,
the Parole Board rejected the applicant's written representations
against the revocation of his licence.
In May 1990, the applicant's case was reviewed by the Parole
Board who recommended that the applicant be transferred from a Category
C (closed) to a Category D (open) prison. The Parole Board's
recommendation was accepted by the Secretary of State who directed that
the applicant's case should be reviewed again in 18 months.
That review was deferred as a result of a series of breaches of
prison rules by the applicant. When the applicant's case was
eventually reviewed in April 1993, the Parole Board recommended his
release on licence provided the applicant first spend six months in a
hostel providing a pre-release employment scheme. Before the Parole
Board's recommendation came before the Secretary of State, the
applicant in breach of prison rules returned late from his work
placement in consequence of which the Parole Board's recommendation was
not implemented. Instead the Secretary of State, in or about October
1993, directed that the applicant's case should be reviewed again in
12 months.
Prior to that review the applicant again returned late from his
work placement in consequence of which he was transferred from a
Category D to a Category C prison.
A further review was initiated in September 1994 in which the
applicant sought a recommendation from the Parole Board that he be
transferred from a Category C to a Category D prison. Although the
Parole Board recommended that the applicant be transferred to Category
D prison, this recommendation was not, however, accepted by the
Secretary of State who, on 28 November 1995, directed that the
applicant be transferred to another Category C prison pending a further
review to be initiated by the Parole Board in September 1996.
The subsequent review of the applicant's detention was carried
out on 26 February 1997 in accordance with the interim arrangements
under the Crime (Sentence) Act 1997 put in place following the Court's
judgments in Hussain and Singh (Eur. Court HR, Hussain v. the United
Kingdom judgment of 21 February 1996 and Singh v. the United Kingdom
judgment of 21 February 1996, Reports 1996-I p. 252 and 280). The
Secretary of State followed the recommendation of the Parole Board that
the applicant be transferred to open prison conditions. A second review
is expected in February 1999.
COMPLAINTS
1. The applicant complained that he was not able, either on his
recall to prison following the revocation of his life licence or
thereafter during the currency of his continued detention, to take
proceedings satisfying the requirements of para. 4 of Article 5 of the
Convention.
2. The applicant further complained that a test which requires the
Parole Board to be satisfied that the applicant does not continue to
represent any risk to the life or limb of the public before
recommending his release following re-detention is too onerous and such
as to constitute a violation of para. 1 (a) of Article 5 of the
Convention. The applicant submitted that the Parole Board should
recommend release unless it is established that he continues to
represent a risk to the life or limb of the public.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 3 July 1995 and registered on
9 November 1995.
On 9 April 1997 the Commission decided to communicate the
applicant's complaint concerning Article 5 para. 4 to the respondent
Government and to declare the remainder of the application
inadmissible.
The Government's written observations were submitted on 24 June
1997, after an extension of the time-limit fixed for that purpose. The
applicant replied on 13 January 1998, also after an extension of the
time-limit. In this letter, the applicant's representatives informed
the Commission that the applicant had obtained a review under the
interim administrative arrangement set up following the Court's
judgments in Hussain and Singh (Eur. Court HR, Hussain v. the United
Kingdom judgment of 21 February 1996 and Singh v. the United Kingdom
judgment of 21 February 1996, Reports 1996-I, pp. 252 and 280) and that
a follow up review had been fixed. They also stated that they now
accepted that the applicant had been accorded his full legal rights
under the new arrangements.
By letter dated 16 January 1998, the Secretariat requested the
applicant's representatives to clarify by 30 January 1998 whether they
intended to withdraw the application. No response was received. By
letter dated 13 February 1998, the Secretariat warned the applicant's
representatives that in the absence of any response by 6 March 1998,
the Commission might proceed to strike the case from the list. No
response was received.
REASONS FOR THE DECISION
The Commission recalls that by letter of 13 January 1998 the
applicant's representatives informed the Commission that the applicant
had received a review of his detention under the interim administrative
arrangements, that a follow up review had been fixed and that they
accepted that the applicant had now been accorded his full legal rights
under the new arrangements. The Commission notes that the applicant's
representatives have since failed to respond to two letters from the
Secretariat and that they have been warned that the case might be
struck from the list of cases.
In light of these events, and in particular, the applicant's
representatives acceptance that the applicant is satisfied with the
review now provided under the interim administrative arrangements, the
Commission finds that the matter which has been the subject of the
application has been resolved within the meaning of Article 30
para. 1 (b) of the Convention. The Commission, furthermore, having
regard to Article 30 para. 1 in fine, finds no special circumstances
regarding respect for human rights as defined in the Convention which
require the continuation of the examination of the application.
For these reasons, the Commission, unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy