AS TO THE ADMISSIBILITY OF
Application No. 18943/91
by Thomas McALLISTER
against the United Kingdom
The European Commission of Human Rights (Second Chamber) sitting
in private on 2 April 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H. G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
Sir Basil HALL
Mr. A.V. ALMEIDA RIBEIRO
Mr. K. ROGGE, Secretary to the Second 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 2 October 1991 by
against the United Kingdom and registered on 11 October 1991 under file
No. 18943/91;
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. He was born in 1963. He is
currently detained at HM Prison Magilligan, Northern Ireland, where he
is serving a sentence of 6 years' imprisonment.
The applicant is represented in the proceedings before the
Commission by Mr. K. Winters, a solicitor practising in Belfast.
The facts, as submitted by the applicant and as may be obtained
from the documents submitted with the case-file, may be summarised as
follows.
On 22 June 1990, the applicant was convicted, inter alia, of
aggravated burglary and given a 6 year sentence of imprisonment.
Aggravated burglary is a scheduled offence within the meaning of
the Northern Ireland (Emergency Provisions) Act 1978, where it is
charged that an explosive, firearm, imitation firearm or weapon of
offence was used to commit the offence.
Under Section 22 of the Prevention of Terrorism (Temporary
Provisions) Act 1989, remission granted in respect of a sentence of
imprisonment passed in Northern Ireland for a scheduled offence shall
not, where the sentence is for five years or more, exceed one third of
that term. Remission granted in respect of a sentence of imprisonment
passed in Northern Ireland for non-scheduled offences shall not exceed
one half of the appropriate term. The applicant's current release date
is accordingly 28 June 1994 instead of 28 June 1993.
COMPLAINTS
The applicant complains that he is serving a longer period of
imprisonment because of the perceived political character of his
offence. He invokes Article 14 taken together with Article 5 of the
Convention.
The applicant also complains that he is unable to challenge the
statutory provision which restricts remission for scheduled offences.
He invokes Article 13 of the Convention.
THE LAW
1. The applicant complains that he is discriminated against since
he is serving a longer period of imprisonment because of the political
character of his offence. He invokes Article 14 in conjunction with
Article 5 (Art. 14+5) of the Convention. These provisions, as
relevant, provide:
Article 14 (Art. 14) of the Convention:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
Article 5 (Art. 5) of the Convention:
"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;..."
The case-law of the Commission indicates that complaints
concerning the length of sentence passed after due process of law do
not generally fall within the scope of the Convention (No. 5871/72,
Dec. 30.9.74, D.R. 1 p. 54). However, where a settled sentencing
policy appears to affect individuals in a discriminatory fashion, the
Commission has taken the view that this may raise issues under Article
14 read in conjunction with Article 5 (Art. 14+5) of the Convention
(see e.g. No. 11077/84, Dec. 13.10.86, D.R. 49 p. 170).
The Commission recalls that the rules concerning release on
remission are different in relation to "scheduled offences". These
offences attract the maximum of one third remission in sentence as
opposed to the one half applicable to other offences.
The Commission recalls that not every difference in treatment is
contrary to Article 14 (Art. 14) of the Convention. In particular,
Article 14 (Art. 14) safeguards individuals placed in similar positions
from any discrimination in the enjoyment of the rights and freedoms set
out in the Convention and Protocols (see e.g., Eur. Court H.R., Marckx
judgment of 13 June 1979, Series A no. 31).
The applicant in this case seeks to compare himself with persons
convicted of different offences. A person convicted of one offence is
however not in a comparable position to that of a person convicted of
another offence in relation to the question of sentencing and the
possibility of early release. The same considerations will not
necessarily apply in all cases. It is obvious that Contracting States
may differentiate between types of offences in fixing applicable
penalties. The Commission considers that they may also legitimately
make distinctions between different kinds of offences in determining
at what stage prisoners should be released.
Consequently, the Commission finds that the difference of
treatment in this case does not constitute discrimination within the
meaning of Article 14 of the Convention read in conjunction with
Article 5 (Art. 14+5).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also invokes Article 13 (Art. 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."
However, 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 of the Convention (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).
The Commission recalls that it has found the applicant's
substantive complaint under Article 14 (Art. 14) manifestly ill-founded
and for the same reasons finds that the applicant cannot be said to
have an "arguable claim" of a violation of that provision.
It follows that this part of the application must be
rejected as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
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