FOURTH SECTION
DECISION
Application no. 16477/09
by H.S. and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 5 October 2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 26 March 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the joint comments submitted by Action for Prisoners' Families and the European Network for the Children of Imprisoned Parents and to the comments submitted by Fair Trials International,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, H.S., is a British national who was born in 1943. The other applicants are his wife, R.S, and their two daughters, T.S. and M.S, who are all Dutch nationals and were born in 1968, 1993 and 1994 respectively. H.S. is currently detained at HMP Ashwell in England. The other applicants live in the Netherlands. The applicants are represented before the Court by Ms N. Mole of the AIRE Centre, a non-governmental organisation based in London.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant, H.S., has been resident in the Netherlands since 1989. He married R.S. in 1993.
4. H.S. was arrested in Bournemouth on 8 August 2004. He was convicted in the United Kingdom on 2 December 2005 for unlawfully importing a class A drug. He was sentenced to 16 years and four months imprisonment. He did not appeal his conviction or sentence following advice from his lawyers that to do so would substantially delay any application for transfer to the Netherlands, where he hoped to return to serve his sentence in order to be closer to his family.
5. H.S. subsequently requested a transfer to the Netherlands but the request was refused. He began judicial review proceedings on 23 August 2007. Leave to apply for judicial review was granted on 20 December 2007.
6. After a substantive hearing, Lord Justice Dyson refused the application for judicial review on 1 May 2008. H.S. sought leave to appeal.
7. On 19 February 2009, the Court of Appeal refused leave to appeal in the judicial review proceedings, holding that the Secretary of State's decision was fair and justified.
COMPLAINTS
8. The applicants complained under Article 8 of the Convention that the continued refusal to consent to the transfer of H.S. to serve the remainder of his sentence in the Netherlands constituted an unjustifiable interference with their Article 8 rights to respect for family and private life and an interference with their “moral and physical integrity”.
9. The applicants also contended that there had been an unjustified interference with their Article 8 rights taken in conjunction with Article 14 as H.S. had been discriminated against on grounds of his nationality.
10. H.S. alleged a violation of Article 6 §§ 1 and 2 in respect of the judicial proceedings refusing his transfer on the grounds that the delay in the present case had violated the reasonable time requirement and that his right to be presumed innocent was violated by comments made by the judge during the sentencing procedure, which were repeated to his detriment in the transfer proceedings.
THE LAW
11. On 15 April 2010, following communication of the application to the respondent Government, the Government advised the Court that they had proposed to the applicants to settle the case on the basis of an undertaking that they would secure the transfer of the applicant to the Netherlands under certain conditions specified in the Government's letter.
12. On 19 July 2010 the applicants' representatives informed the Court that they accepted the Government's proposal and enclosed a copy of a duly completed and witnessed “Consent of Prisoner to Transfer from the United Kingdom to the Netherlands” form confirming that the applicant had been informed of the terms of the transfer.
13. Following the applicant's request that the case not be struck out of the Court's list prior to the transfer taking place, on 7 September 2010 the Government informed the court that the applicant's “Consent of Prisoner to Transfer from the United Kingdom to the Netherlands” form had been forwarded to the Dutch authorities and it was now for them to arrange a date for a Dutch escort to travel to the United Kingdom to collect the applicant and accompany him to the Netherlands. The Government confirmed that the United Kingdom had given its consent to the transfer and that this decision would not change.
14. The Court considers that, in these circumstances, the matter has been resolved, within the meaning of Article 37 § 1 (b) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş AracıLech Garlicki
Deputy RegistrarPresident
Full & Egal Universal Law Academy