AS TO THE ADMISSIBILITY OF
Application No. 21387/93
by D.W.
against the United Kingdom
The European Commission of Human Rights sitting in private on
30 August 1994, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 April 1992 by
D.W. against the United Kingdom and registered on 16 February 1993
under file No. 21387/93;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1942 and resident in
Southampton. The facts of the case, as submitted by the applicant, may
be summarised as follows.
In April 1975, the applicant was sentenced to a term of
discretionary life imprisonment for four offences of buggery of boys
aged between 12 and 15. He also received a fixed sentence of 7 years.
He appealed unsuccessfully against his life sentence to the Court of
Appeal. Both the trial judge and the Court of Appeal commented that the
applicant was better off than if a fixed sentence had been imposed.
In or about 1983, the applicant's tariff (that part of his
sentence corresponding to retribution and deterrence) was fixed by the
Home Office in consultation with the trial judge and the Lord Chief
Justice at fifteen years.
The applicant was considered for release in 1985 and 1989. The
Parole Board declined to recommend his release.
The Parole Board considered the applicant's case a third time in
February 1992. The applicant, who had not been provided with any of the
reports before the Board, was informed in May 1992 that release had
been refused.
By letter dated 27 July 1992, the applicant was formally notified
that his tariff was fifteen years and that it had expired in September
1989. He had known informally of the tariff for at least a number of
months previously.
On 1 October 1992, section 34 of the Criminal Justice Act 1991
came into force. Under the provision of this Act, the Parole Board was
given power to direct the release of a prisoner serving a discretionary
life sentence.
In or about February 1993, the applicant was released on licence.
Conditions are attached to the licence, which is of indefinite
duration. These include the requirement that he may only live and work
where approved by his probation officer and that he may not leave the
country without the permission of his probation officer. He states that
he was told that he would not be able to get married, though it is not
apparent whether this originated from his probation officer or the
psychiatric doctor under whose supervision he remained.
Shortly after his release, the applicant informed his probation
officer that he wished to travel to Spain on holiday. The probation
officer refused his permission since the applicant had failed to
disclose details of where he would be staying and on the ground that
it was too early after his release. By letter dated 25 June 1993, the
Home Office Discretionary Lifer Unit agreed with the probation
officer's decision.
On 26 March 1994, the applicant was arrested by the police who
informed him that his licence had been revoked. On 31 March 1994, after
his return to prison, the applicant was informed that the reason for
recall was that a young man who had been staying with the applicant had
stated that the applicant had asked him to try to obtain a gun and had
suggested taking another young man into the woods to beat and kill him.
COMPLAINTS
The applicant complains of receiving an unfair trial and appeal
in respect of his conviction. He complains that in prison his life was
put at risk, contrary to Article 2 of the Convention, and that he was
subjected to torture contrary to Article 3 in aversion therapy which
consisted of electric shock treatment. He submits that while in prison
he was subject to compulsory labour contrary to Article 4 of the
Convention. He also complains of being denied respect for his private
life by being incarcerated.
Under Article 5 of the Convention the applicant complains of
being deprived unlawfully of his liberty. He complains that the tariff
for his sentence was fixed higher by the Home Office, a non-judicial
body, than the trial judge and Court of Appeal had intended and after
an unreasonable length of time. He also invokes Article 6 para. 1 of
the Convention in this respect.
The applicant submits that the review procedure governing release
did not conform with Article 5 para. 4 of the Convention as it was
neither speedy nor conducted by a body satisfying the requirements of
this provision. He also invokes Article 5 para. 5 of the Convention in
this respect.
The applicant further complains that the presumption of innocence
guaranteed under Article 6 para. 2 of the Convention was not respected
in the proceedings before the previous Parole Board referring to a
report which took into account matters with which the applicant had
never been charged.
The applicant complains that his release in February 1993 was
subject to conditions, which he says is not provided for in Article 5
para. 4 of the Convention. He complains that these conditions breached
the presumption of innocence and render him a prisoner in his own
country. He complains that he has been told that, pursuant to the
conditions imposed in his licence, he is not allowed to marry. He
invokes Article 12 of the Convention in this respect.
The applicant further complains of discrimination contrary to
Article 14 of the Convention and of having no effective remedy for his
complaints contrary to Article 13 of the Convention.
THE LAW
1. The applicant complains of his original trial and conviction and
the appeal proceedings.
The Commission is however not required to decide whether or not
the facts submitted by the applicant disclose any appearance of a
violation of the Convention as, in accordance with Article 26
(Art. 26) of the Convention, the Commission finds that the final
decision regarding the applicant's case was given by the Court of
Appeal in or about 1976, which is more than six months before the date
on which the application was submitted to the Commission. It follows
this part of the application must be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
2. The applicant makes complaints about his incarceration and the
treatment which he received, in respect of which he invokes Articles
2, 3, 4, and 8 (Art. 2, 3, 4, 8) of the Convention. These Convention
provisions guarantee respectively the right to life, freedom from
torture, freedom from forced or compulsory labour, and the right to
respect for private and family life, correspondence and home.
Insofar as the applicant complains of being subject to torture
by way of aversion therapy, the Commission notes that the applicant has
not instituted proceedings before the courts alleging assault, trespass
to the person or negligence. He has therefore failed to exhaust the
domestic remedies available to him under United Kingdom law as required
by Article 26 (Art. 26) of the Convention.
The Commission has examined the other complaints as they have
been submitted by him but finds them unsubstantiated and, thus, they
fail to disclose any appearance of a violation of these provisions of
the Convention.
It follows that this part of the application must be rejected for
non-exhaustion of domestic remedies, pursuant to Article 27 para. 3
(Art. 27-3) of the Convention, and as being manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant next complains of allegedly unlawful detention, the
length of his tariff, the way in which his tariff was fixed by the Home
Office, a non-judicial body, which took into account material which had
not been subject to a criminal charge, and the failure to inform him
of the tariff until after it had expired. He invokes Article 5 paras.
1 and 5 and Article 6 para. 1 (Art. 5-1, 5-5, 6-1) of the Convention
in this regard.
Article 5 para. 1 (Art. 5-1) provides as relevant:
"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..."
Article 5 para. 5 (Art. 5-5) provides:
"Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
Article 6 para. 1 (Art. 6-1) provides in its first sentence:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law..."
The Commission finds that these complaints raise issues of fact
and law under the Convention. It considers however that it cannot, on
the basis of the file, determine their admissibility at this stage and
considers that it is therefore necessary, in accordance with Rule 48
para. 2 (b) of the Commission's Rules of Procedure, to give notice of
these complaints to the respondent Government.
4. The applicant also complains that, following the expiry of his
tariff in 1989, he did not have available a speedy review of the
lawfulness of his continued detention by a court, as required by
Article 5 para. 4 (Art. 5-4) of the Convention, which reads as follows:
"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 also invokes Article 5 para. 5 (Art. 5-5) of the
Convention cited above.
The Commission finds that this aspect of the case also raises
issues of fact and law under the Convention. It considers however that
it cannot, on the basis of the file, determine the admissibility of
these complaints and considers that it is therefore necessary, in
accordance with Rule 48 para. 2 (b) of the Commission's Rules of
Procedure, to give notice of them to the respondent Government.
5. The applicant further complains that the presumption of
innocence, ensured by Article 6 para. 2 (Art. 6-2) of the Convention
for those charged with a criminal offence, was not respected in the
proceedings before the previous Parole Board, referring to a report
apparently before the Board which mentioned matters which were never
the subject of a criminal charge.
The Commission considers however that this complaint, as
presented by the applicant, does not indicate that any finding or
declaration of the applicant's guilt of a criminal offence was made in
the proceedings before the Parole Board, which was concerned with the
matters relevant to whether the applicant should be released from
prison. It follows that this complaint must be rejected as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
6. The applicant next complains that the conditions attached to his
release on licence in or about February 1993 also disclose a violation
of Article 5 para. 4 (Art. 5-4) of the Convention.
The Commission notes that Article 5 para. 4 (Art. 5-4) does not
establish a right to an order of unconditional release. Insofar as
conditions are imposed in the licence requiring a probation officer's
approval of his place of residence, work and leaving the country, the
Commission does not find that they are, in the circumstances of this
case, of such a nature or degree as to constitute in themselves
deprivations of liberty within the meaning of Article 5 (Art. 5) of the
Convention.
Accordingly, the Commission finds that this complaint does not
disclose any appearance of a violation of Article 5 para. 4
(Art. 5-4) of the Convention and that it is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2).
7. The applicant then complains that the life licence interfered
with his rights under Articles 8, 11 and 12 (Art. 8, 11, 12) of the
Convention, which provide, inter alia:
Article 8 (Art. 8):
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society ... for the
prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of
others."
Article 11 (Art. 11):
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others ...
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society ... for the prevention of disorder or
crime, for the protection of health or morals or for the
protection of the rights and freedoms of others ..."
Article 12 (Art. 12):
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right."
The Commission recalls that the licence, as described by the
applicant, imposes a number of conditions which potentially impinge on
his enjoyment of the rights guaranteed by Articles 8 and 11
(Art. 8, 11) of the Convention, insofar as they refer to where he may
live or work. The Commission notes, however, that the applicant has
not complained of any specific prejudicial effect caused by the
operation of the life licence in his case, save that he was refused
permission to leave the country on holiday.
The Commission considers that, assuming the existence of the life
licence and the conditions attaching to it constitute interferences
under the above provisions, the existence of the life licence may be
justified for the purpose of the prevention of disorder or crime. These
measures have not been shown to be disproportionate, bearing in mind
that the applicant was sentenced to life imprisonment for serious
sexual offences committed against children and that, in his own words,
he had become an abuser of children some twenty years prior to his
conviction.
Insofar as the applicant was refused permission to leave the
country, the Commission notes that this refusal was based on the
applicant's failure to inform the probation officer of where he would
be staying, and also on the fact that the applicant intended to leave
soon after his release from prison. The Commission does not find the
resulting restriction on the applicant was unreasonable or arbitrary
in the circumstances.
As regards the applicant's complaint that he is forbidden to
marry, the Commission notes that there is no condition to this effect
in the licence to which he is subject. It appears that this complaint
refers to an oral indication, though it is unclear whether it
originated from the probation officer or the doctor under whose care
the applicant remains. The terms and context in which it was made are
not explained. The Commission is not satisfied that the applicant is
in fact subject to any formal prohibition as to marriage and there is
no indication that he has suffered any restriction in this respect.
The Commission accordingly finds that there is no indication of
a violation of Articles 8, 11 or 12 (Art. 8, 11, 12) of the Convention
on the facts as presented in this application.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
8. The applicant also complains of discrimination in the securement
of his Convention rights and freedoms, contrary to Article 14
(Art. 14) of the Convention.
However, the Commission finds no evidence in the case-file which
might substantiate such a claim. It follows that this part of the
application is similarly manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
9. Finally, the applicant complains of the absence of effective
domestic remedies. He invokes Articles 13 (Art. 13) of the Convention,
which guarantees an effective remedy before a national authority for
a violation of the Convention.
The Commission recalls however that, according to the constant
case-law of the Convention organs, Article 13 (Art. 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 (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
The Commission finds that the applicant cannot be said, in the
light of its findings above, to have an "arguable claim" of a violation
of his Convention rights warranting a remedy under Article 13 (Art. 13)
of the Convention.
Insofar as the Commisssion finds that issues may arise in the
context of the applicant's complaints of an inadequate review procedure
for his continued detention, the question of the absence of any remedy
falls to be dealt with under Article 5 paras. 4 and 5 (Art. 5-4, 5-5)
of the Convention, which paragraphs form the lex specialis for
complaints under the provisions of Article 5 (Art. 5). Similarly,
insofar as issues may arise under Article 6 para. 1 (Art. 6-1) in
relation to the fixing of the applicant's tariff, Article 6 para. 1
(Art. 6-1) constitutes the lex specialis in respect of any lack of a
proper determination of a criminal charge by a court.
It follows that this part of the application must be dismissed
as being manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECIDES TO ADJOURN the examination of the applicant's complaints
under Article 5 paras. 1 and 5 (Art. 5-1, 5-5) and Article 6
para. 1 (Art. 6-1) of the Convention concerning the lawfulness
of his detention, the length and fixing of his tariff and the
delay in informing him about the tariff, and the complaints under
Article 5 paras. 4 and 5 (Art. 5-4, 5-5) of the Convention
concerning a speedy review of the lawfulness of his detention
after the expiry of the tariff period;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRUGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy