AS TO THE ADMISSIBILITY OF
Application No. 20433/92
by Mary McCOURT
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 1 May 1990 by Mary
McCourt against the United Kingdom and registered on 4 August 1992
under file No. 20433/92;
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 1943 and resident in
Wigan. She is represented by Mr. Robin Makin, a solicitor practising
in Liverpool. The facts as submitted by the applicant may be
summarised as follows.
On or about 9 February 1988, the applicant's 22 year old daughter
Helen was murdered. Her body has never been found. A suspect, S., was
arrested and convicted of murder on 14 March 1989. He was sentenced
to life imprisonment.
The applicant is Helen's next of kin and the administratrix of
her legal estate.
The applicant has suffered great distress and has searched
continually but without success for her daughter's body. S. has not
complied with her request to inform the authorities as to the location
of her daughter's body.
On 7 May 1991, the applicant wrote to the Home Office requesting,
inter alia, an assurance that S. would not be considered for parole and
requesting that she be informed with regard to any parole decisions.
By letter dated 3 June 1991, the Home Office replied that her
letter and accompanying document had been placed on S.'s file and would
be seen by the Parole Board when it reviewed his case. She was
informed that at the earliest his case would be reviewed in 2001 and
that the Probation Service would contact her before S.'s release with
a view to meeting any concern and could, for example, place
restrictions as to where S. was to live, go or work on release.
The applicant's representatives wrote to the Home Office again
on 7 August 1991 requesting, inter alia, information as to the "tariff"
and an explanation of why no approval of the "tariff" was sought from
the victim's family.
By reply dated 29 August 1991, the Home Office confirmed that the
tariff was 16 years and stated that it was by no means certain that S.
would be released then. It stated that the applicant could write at
any time giving her views and that these would be placed before the
Parole Board.
By further letter of 30 September 1991, the Home Office stated
that a victim's family cannot be expected to take an impartial view and
that it would be wholly inappropriate to involve them in the tariff
setting process. It confirmed that if S.'s release was ever in
prospect, the Probation Service would contact her.
COMPLAINTS
The applicant complains of a violation of Article 8 of the
Convention in that she has no "right" to participate in the sentencing
process, no "right" to be informed as to when S. will be released and
no "right" to express views to those taking decisions as to his
release.
The applicant also complains in the context of Article 8 of the
absence of any provision for "bereavement" damages where the deceased
child is over 18 years old. She submits that this does not reflect the
enormity of the loss and is a lack of respect.
The applicant invokes Article 6 of the Convention in respect of
the lack of a fair and public hearing within a reasonable time by an
independent and impartial tribunal to establish the whereabouts of her
daughter's body.
The applicant submits that the lack of procedure to establish the
whereabouts of Helen's body includes her rights under Article 9 of the
Convention.
In the context of Article 10 of the Convention, the applicant
complains that she has no "right" to impart information as to her
wishes in determining the effective length of S's sentence. She also
submits she should enjoy a positive right to receive information as to
his release.
The applicant further complains under Article 13 of the
Convention that she has no remedy in respect of the above complaints.
Finally, she complains that there has been discrimination
contrary to Article 14 of the Convention in that "bereavement" is not
recognised because of her daughter's status as an unmarried adult, in
that no procedure is available to trace her daughter's body since it
has no status as "property" of commercial value and that her right to
respect for family life is not recognised because Helen's 'status' is
now that of a 'deceased person'.
THE LAW
1. The applicant complains under Article 8 (Art. 8) of the
Convention that she has no right as such to be consulted in the
sentencing or parole process.
Article 8 (Art. 8) of the Convention provides:
"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 in the interests of
national security, public safety or the economic well-being of
the country, 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."
The Commission notes that while the applicant has no "right"as
such to be involved in the parole process the Home Office have a policy
of accepting the submissions made by victims' families and placing them
before the Parole Board. The Home Office also has a policy of
informing relatives of the possible release of a prisoner in order to
meet any concerns that they might have. As regards the failure to
involve the applicant in setting the tariff, the Commission also
recalls the explanation by the Home Office that victims' families do
not have the requisite impartiality for involvement in the sentencing
procedures. In light of these considerations , the Commission finds
that the applicant's complaints fail to disclose any lack of respect
for or any interference with her right to respect for family life.
The applicant also complains under Article 8 (Art. 8) of the
Convention of the absence of provision for damages awardable in civil
proceedings in respect of an adult child who dies in such
circumstances. She submits that this in itself constitutes a lack of
respect.
The Commission notes that there is in fact no indication on the
file that the applicant had or would have any intention of suing the
convicted murderer of her daughter for damages in civil proceedings.
In any event, however, the Commission finds that the criminal law
recognises the heinousness of the act committed in this case and
provides for it a mandatory penalty of life imprisonment. The
Commission does not consider that Article 8 (Art. 8) of the Convention
can be interpreted as requiring in addition that civil proceedings take
a particular form or provide damages to extended categories of
relatives (see e.g. Eur. Court H.R., X and Y v. the Netherlands
judgment of 26 March 1985, Series A no. 91).
The Commission concludes that the applicant's complaints are
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also invokes Articles 6, 9, 10, 13 and 14
(Art. 6, 9, 10, 13, 14) of the Convention.
The Commission has examined the applicant's complaints as they
have been submitted by her. It finds however that they fail to disclose
any appearance of a violation of the rights guaranteed under the
Convention.
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 First Chamber a.i. President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy