The European Commission of Human Rights sitting in private on
13 October 1986, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Art. 25 (art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 25 April 1984 by N.
against the United Kingdom and registered on 9 August 1984
under file No. 11077/84;
Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts as submitted on behalf of the applicant, a citizen of the
United Kingdom born in 1961 and currently detained in H.M. Prison
Dungavel in Lanarkshire, Scotland, by his legal representative
Mr. Peter Ashman of Justice, may be summarised as follows:
On 28 March 1977 the applicant was convicted of attempted murder by
the High Court of Justiciary in Glasgow and was sentenced pursuant to
Section 206 of the Criminal Procedure (Scotland) Act 1975
("the 1975 Act") to nine years detention. The judge when sentencing
him stated:
"Were you older than you are and were your personal history not such
as it is the sentence which I would impose for your detention would be
very much greater and longer than the one I am going to impose but
being as lenient as I can be in all the circumstances, bearing in mind
that the public must be protected from people who are prepared to
indulge in the sort of attack in which you indulged I shall order you
to be detained for a period of 9 years in such institution as the
Secretary of State may determine."
Section 206 (2) of the 1975 Act provides:
"Where a child is convicted and the court is of the opinion that none
of the other methods of dealing with the child is suitable, the court
may sentence him to be detained for such period as may be specified in
the sentence; and where such a sentence has been passed, the child
shall during that period be liable to be detained in such place and on
such conditions as the Secretary of State may direct."
The applicant was a child (aged 15) at the commencement of his
sentence and is therefore not entitled to remission pursuant to
Section 206 (2). He was reviewed for parole by the Secretary of State
for three years from 1980-83, with no recommendation for release.
However, in March 1984 the Secretary of State accepted a
recommendation of the Parole Board that, subject to satisfactory
completion of six months in an open establishment and six months
"training for freedom", he should be released on licence in March 1985
under supervision until his sentence ended on 27 July 1986.
The applicant complains that, due to his age at the time of arrest and
trial and the location of such arrest, he has been denied the
possibility of remission pursuant to the provisions of Section 206 (2)
of the 1975 Act.
Remission and parole (or licence as it is known in relation to young
offenders in Scotland) are totally distinct concepts. Remission,
although expressed by the legislation to be a discretionary power
vested in the Secretary of State, is in practice automatically
credited to every prisoner who is eligible for it. At the outset of
his sentence every such prisoner is given an estimated date for
release which is calculated by reference to the maximum possible
remission, and he will be released on that date unless remission has
been forfeited in disciplinary proceedings.
Rule 37 of the Prison (Scotland) Rules 1952 ("the Rules"), as amended,
provides that remission may be granted to a prisoner "on the ground of
his industry and good conduct". Remission can only be lost as a
punishment for breach of the Prison Rules. In the event of such a
breach the Governor of the prison or the Board of Visitors sitting as
a disciplinary tribunal may order loss of remission according to
scales laid down in the Rules. Remission cannot be taken from a
prisoner without a hearing before the disciplinary body at which the
evidence against him or her is presented and he or she will have an
opportunity to call evidence and witnesses to rebut the charge. The
rules of natural justice are considered to apply to such proceedings
and a prisoner may be legally represented.
Once a prisoner is released on remission his prison sentence is at an
end. He cannot be returned to prison to serve the remaining third of
his sentence or any part of it.
Parole (or licence) is a form of conditional release. A prisoner is
not entitled to parole, he is merely eligible to be considered for it.
In respect of a young offender sentenced pursuant to Section 206 of
the 1975 Act, the Secretary of State may at any time release him on
licence. However, if the young offender has been sentenced to a term
of imprisonment exceeding 18 months, the Parole Board must have first
recommended release on parole. The decision to recommend release does
not depend solely on a prisoner's "good industry and conduct" and on
his avoiding any breach of the Prison Rules as is the case with
remission. Instead, many factors are considered when deciding whether
or not a prisoner should be released on parole all of which are
personal to the particular individual under consideration. These
factors include the individual's home circumstances, the personality
of the offender, the nature of the offence, the degree of remorse
shown for the offence and the likelihood of the individual
reoffending. A prisoner does not see the report prepared by the
Parole Board concerning his or her application. Neither will he or she
have sign of any information supplied to the Board by third parties.
Parole is frequently refused (statistics show that in 1979 only 30 per
cent of the applications for parole made by eligible young offenders
in Scotland were granted), and in the event of such a refusal the
Parole Board will not indicate its reasons.
If a prisoner is granted parole he continues to serve his sentence
throughout his period of release. He may be recalled to prison for
breach of any of the conditions of his parole licence, and these
conditions can be very general in nature. One typical condition is
that the holder of the licence "shall be of good behaviour and lead an
industrious life". Conditional release on parole continues until the
estimated date for release which is the sentence fixed by the court
less any remission to which the prisoner is entitled.
COMPLAINTS
Article 7 (art. 7) in conjunction with Article 14 (art. 14)
The applicant complains that the practical consequence of the Scottish
legislation in relation to young offenders is that a heavier penalty
was effectively imposed upon him because of his age and his place of
residence in Scotland than was applicable at the time the criminal
offence was committed. Had the applicant been an adult prisoner he
would have been entitled to remission of one third of his sentence.
Alternatively, had he been a child convicted and sentenced in England
and Wales he would have been entitled to remission of one half of his
sentence.
Article 5 (art. 5) in conjunction with Article 14 (art. 14)
The applicant complains that the fact that people convicted as a child
in Scotland are not eligible for remission (in contrast with people
convicted as a child in England and Wales) means that he suffers
discrimination in the enjoyment of his right to liberty, and
consequently that that part of his sentence for which he cannot get
remission is unlawful under the Convention.
The applicant contends that the distinctions between people convicted
as a child in Scotland and those in England and Wales, have no
objective or reasonable justification either in relation to the nature
of the offence or the method of treatment. Nor can any such
justification be found as regards the different legal systems since in
both the Scottish legal system and that in effect in England and Wales
judges are enjoined from considering questions of remission and parole
when fixing the appropriate sentence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on behalf of the applicant on
25 April 1984 and registered on 9 August 1984.
The Commission first examined the question of admissibility on
14 December 1984 and decided to invite the Government to submit
observations on the admissibility and merits of the application with
regard to Articles 5 and 14 (art. 5, art. 14) of the Convention. The
Government submitted their observations on 1 May 1985, after an
extension of four weeks had been granted. The applicant submitted his
observations in reply on 7 June 1985 and the Government sent further
observations on 1 August 1985.
Following further information from the applicant concerning his
conditions of detention, the Commission decided on 4 March 1986 to
invite the parties to submit further observations. Supplementary
observations were submitted by the Government on 12 May 1986 and by
the applicant on 13 June 1986.
SUMMARY OF THE PARTIES' OBSERVATIONS
A. The Government
a. Domestic law and practice
The type of custodial sentence imposed by the court in Scotland
differs according to the age of the accused. Under the common law,
imprisonment is imposed on those over 21, the sentence being served in
prison. By Section 207 and Section 413 of the Criminal Procedure
(Scotland) Act 1975 ("the 1975 Act") it is provided that imprisonment
may not be imposed on those under 21. Instead, a person between the
age of 16-21 may receive a sentence of detention. This sentence is
normally served in a detention centre for a period of 28 days to 4
months, otherwise in a young offenders institution.
Under Section 206 of the 1975 Act a child, i.e. a person under 16, may
be sentenced to be detained in such a place as the Secretary of State
may direct. There is a similar power under Section 413, which deals
with summary offences: Section 206 covers offences dealt with by
jury.
The Secretary of State has complete discretion as to the establishment
in which an offender is detained and as to the regime to which he is
subject. A person serving this type of sentence will continue to do
so on reaching the age of 16 or 21: it does not then become a
different type of sentence.
Children sentenced under Section 206 or Section 413 are usually sent
to "List D" schools, residential schools run by local authorities or
voluntary organisations and on occasion to young offenders
institutions. A person in effect will be sent to the school or
institution which seems most appropriate to the circumstances. If a
person is still serving a sentence at 18, he will normally be
transferred to a young offenders institution and if, in an unusual
case, such a person is still serving a sentence at 21, he would
probably be transferred to a prison.
Children are rarely sentenced under Section 206. In most cases, where
children have committed offences, they are dealt with in "children's
hearings", under the Social Work (Scotland) Act 1968. Where necessary,
a supervision requirement may be imposed on such a child. This may
include detention in a named residential establishment, which could be
an ordinary children's home or, in most cases, a "List D" school.
Only 10% of the 770 children in "List D" schools are detained under
Section 206 or Section 413.
Remission
Remission of sentence is available to persons sentenced to
imprisonment or to detention in a young offenders institution or
detention centre. It is not available to persons sentenced under
Section 206 or Section 413, since such sentences are neither sentences
of imprisonment nor of detention in a young offenders institution.
Persons sentenced under Section 206 are normally subject to the regime
of the institution in which they are held, whether "List D" school,
young offenders institution or prison. If they are held in a young
offenders institution or prison, the general provisions of the Young
Offenders (Scotland) Rules 1965 (S.I. 1965/195 as amended by S.I.
1981/1223) or the Prison (Scotland) Rules 1952 (S.I. 1952/565 as
amended by S.I. 1981/1222) will apply to them. However, since a
Section 206 sentence is not a sentence of imprisonment or detention in
a young offenders institution or detention centre, rules on remission
can have no application.
In "List D" schools, there is no system of remission. Children sent
from "children's hearings" are subject to appropriate programmes of
care and supervision, and are not being punished. Such schools are
educational rather than correctional establishments and though persons
are kept there compulsorily, they are open establishments and do not
normally have secure accommodation. The time spent depends on the
needs of the child and is subject to review at the request of the
child, his parents, or the local authority.
Remission has not been applied to Section 206 offenders for two
reasons. Firstly, the concept of remission is not known in "List D"
schools, where most Section 206 offenders are sent. It would not be
desirable to introduce such a system into this environment and thereby
create different disciplinary regimes. Therefore, since Section 206
offenders held in "List D" schools do not receive remission, it is not
thought appropriate to extend remission to those Section 206 offenders
who are in prison or young offenders institutions: to do otherwise
would create a difference in treatment according to where a person was
held.
The second reason is that remission is considered too rigid a system
in Section 206 cases. Persons sentenced as children may change
considerably in the course of their sentence. Continuous assessment
and conditional release on licence is considered a more flexible and
desirable system.
Release on licence
Licence is completely separate from the concept of remission. It is
always at the discretion of the Secretary of State and may be revoked,
where it is expedient in the public interest.
For persons serving a term of imprisonment or detention in a young
offenders institution or detention centre, release on licence is
possible after 12 months or a third of the sentence being served,
which ever is the latest: Part III of the Criminal Justice Act 1967.
The 1967 Act does not apply to Section 206 offenders. Licence in
these cases is provided for by Section 206 (2)-(7) of the 1975 Act.
For persons sentenced under Section 206 serving sentences of over 18
months, the Secretary of State legally can release on licence only on
the recommendation of the Parole Board. The Secretary of State first
reviews the case to see if it is suitable for consideration by the
Parole Board with a view to release on licence. Legally this review
could be undertaken at any time, since there is no requirement that a
person must have served 12 months or one-third of his sentence.
Howewer the administrative practice which has grown up is that the
review is only undertaken some months before the person has served
one-third of his sentence or one year, whichever is later. This of
course is the same time as the first review in the case of persons
sentenced to imprisonment or detention in a young offenders
institution.
The review by the Secretary of State, as in other cases, is based on
the whole circumstances, including reports on progress from the
institution. The person concerned can make representations. Where the
person sentenced under Section 206 is held in an institution which has
a local review committee it assists the Secretary of State in making
the review, though it is not legally required to do so. In practice
all such cases are referred to the Parole Board. This differs
markedly from the practice as regards persons sentenced to
imprisonment or detention in a young offenders institution, where a
substantial proportion of cases are not referred to the Parole Board.
Most of these cases are referred because the Secretary of State
thinks, subject to the views of the Board, that the person concerned
is suitable for consideration for release on licence. In a small
number of cases, however, the reference is made "for information
only". These words do not preclude the Board from considering the
case and making a recommendation: they simply indicate that the
Secretary of State is not satisfied that the person concerned is
suitable for release on licence, but nonetheless thinks that the Board
should have the opportunity to consider the case.
The Parole Board considers the case and makes a recommendation on
suitability for release on licence and the date when this should be
done. Where release is recommended, the final decision is for the
Secretary of State, but a decision not to release would be extremely
rare. When the Parole Board does not recommend release, this process
is repeated each year. In some cases, more frequently than in the
case of persons sentenced to imprisonment or detention in a young
offenders institution, the Parole Board suggests a further review in
less than a year and this is done.
Practice in the case of persons sentenced under Section 206 serving
sentences of over 18 months is very much more favourable to release
than practice in the case of persons serving sentences of imprisonment
or detention in a young offenders institution who have become eligible
for consideration for parole by completing one-third of their sentence
or one year (whichever is later).
b. Admissibility and merits
Article 5 (art. 5) in conjunction with Article 14 (art. 14)
i. Discrimination based on geographical location
The Government submits that there has been no discrimination of the
type envisaged by Article 14 (art. 14). Article 14 (art. 14) is
concerned with discrimination on grounds personal to the applicant.
In this case, any differences in treatment compared to offenders in
England and Wales is based solely on objective grounds i.e. that the
offence was committed in Scotland and the Scottish courts had
jurisdiction and applied Scots law.
The Government reminds the Commission that the United Kingdom contains
three separate systems of law, in Scotland, England and Wales, and
Northern Ireland, which for most purposes function as separately as
the systems in different States. The Government submits that where
there are such different systems, it is sufficient for Article 14
(art. 14) that each system allows people to exercise their rights
under the Convention without any discrimination under that system. The
argument of the applicant would logically require the complete
harmonisation of the criminal law systems of the three areas.
The Government states that in England and Wales there is a comparable
provision to Section 206. Section 53 (2) of the Children and Young
Persons Act 1933 provides:
"Where a child or young person is convicted on indictment of any
offence punishable in the case of an adult with imprisonment for
fourteen years or more, not being an offence the sentence for which is
fixed by law, and the court is of the opinion that none of the other
methods in which the case may legally be dealt with is suitable, the
court may sentence the offender to be detained for such period not
exceeding the maximum term of imprisonment with which the offence is
punishable in the case of an adult as may be specified in the
sentence; and where such a sentence has been passed the child or young
person shall, during that period be liable to be detained in such
place and on such conditions as the Secretary of State may direct."
This provision applies to children and young persons between the ages
of 10 and 17. The most significant difference with Section 206 is
that Section 53 (2) applies only to very serious offences. It is
denied that Section 53 (2) offenders obtain remission wherever they
are held. Whether in a custody centre, prison or institutions run by
the local authority, such offenders are not eligible for remission.
Remission is only available if a person over 14 is sentenced
specifically to a youth custody centre or detention centre, which are
sentences to be served in a particular type of penal institution. As
in Section 206 cases, persons sentenced under Section 53 (2) are
eligible for release on licence throughout their sentence.
ii. Discrimination based on age
The Government questions whether age is a ground of discrimination
under Article 14 (art. 14). The law cannot be expected to treat
children, adolescents and adults in the same way, particularly in the
penal area.
If Article 14 (art. 14) is applicable, the Government would argue that
there is an objective and reasonable justification for any difference
in treatment i.e. the need for flexibility in sentencing children, so
that they can be sent to the institution which most suits their
circumstances. Remission is not appropriate or desirable in those
cases.
The Government further denies that if the applicant had been older
when sentenced, he would only have been detained for 2/3 of his
sentence. The judge could well have imposed a longer sentence, and
indeed indicated he would have done so, if the applicant had been
older. The Government also disagrees that a Scottish court is unable
to take into account the availability of remission in determining the
appropriate length of sentence. Further, it cannot be assumed that
the applicant would have obtained full remission, even if he had been
eligible for remission.
The Government therefore submits that the claim of discrimination has
not been made out in fact.
B. The Applicant
a. Domestic law and practice
The majority of pupils in "List D" schools are children in need of
care. Thus, the schools are not penal institutions and those residing
there, including Section 206 offenders, are not subject to a penal
regime. Those persons sentenced under Section 206, who are not
detained for purposes of educational supervision, are placed in young
offenders institutions or prisons and subjected to the regime of such
institution. It is semantic to argue that a Section 206 offender
detained in such circumstances is not serving a prison sentence or
sentence of detention in a young offenders institution, merely because
by statute, such types of sentence are not applicable to persons
sentenced when under 16.
The only difference in treatment between Section 206 offenders
detained in a prison or young offenders institution and other
detainees in those establishments is that the Section 206 offenders
receive no remission and are eligible for release on parole at an
earlier date.
While the applicant agrees that Section 206 offenders can be released
on parole at any time, there is no right to such conditional release
guaranteed under the domestic law or the Convention. A prisoner is
considered on his own merits in an administrative process to which the
safeguards of Article 6 (art. 6) do not apply. Since April 1981, 29%
of Section 206 detainees were refused parole and obliged to serve
their complete sentence. The applicant has received no actual
advantage over any other prisoner from the possibility of parole
before he served a third or twelve months of his sentence. He was
first considered for release on parole only after serving one-third of
sentence, as is the practice with other categories of prisoners.
Therefore the existence of this possibility can have no relevance.
Remission where applicable however is automatic, save where a period
is forfeited in a disciplinary hearing or judicial proceedings. It is
available to those serving sentences of imprisonment and to those
between the ages of 16-21 sentenced under Section 207 and Section 415
of the 1975 Act to detention in young offenders institutions or
detention centres. Remission is final and cannot be revoked.
The applicant disputes the Government's contention that judges in
England, Wales and Scotland may take the possibility of remission into
account in fixing sentence. In England and Wales, the leading
authority R. v. Maguire and Enes (1956) 40 Cr. Rep. 92 makes
it clear the court should not do so. While there is no direct
authority on this point in Scotland, the leading textbook, "The Law
and Practice of Sentencing in Scotland" by Sheriff Nicholson, a
leading Scottish criminal judge, states that it is improper for a
judge to take remission into account in determining sentence.
b. Admissibility and merits
Article 5 (art. 5) in conjunction with Article 14 (art. 14)
i. Discrimination based on geographical location
The applicant submits that while separate systems of law are
permissible under the Convention, a State is nonetheless obliged to
ensure everyone in its territory enjoys Convention rights equally,
without discrimination in the degree of protection. Any difference in
treatment between the separate legal systems must be compatible with
the United Kingdom's overriding obligations under the Covention.
The applicant accepts the Government's explanation of the situation in
England and Wales, and that Section 53 (2) detention is largely the
same as Section 206. However, the applicant points out that those
ordered to be detained in a detention centre before 24 May 1983 under
the age of 17 remain eligible for remission of half that sentence,
rather than a third (Rule 6 (2)(a) of 1983 Detention Centre Rules).
The applicant cites the case of R. v. Fennell (8 March 1985) in which
Lord Chief Justice makes it clear that detention under Section 53 (2)
is aimed primarily at punishment, although detention can be ordered in
non-penal institutions. The applicant maintains that detention under
Section 206 is largely similar and also primarily aimed at
punishment.
ii. Discrimination based on age
The Section 206 type of sentence depends solely on the age at which an
offence is committed but its consequences continue throughout the
sentence, regardless of age or personal circumstances. While, as in
the applicant's case, the conditions of detention can be identical
with other categories of offenders, the Section 206 offender suffers
the disadvantage of no remission for no reasons personal to themselves
but solely on account of the chance fact of their age when the offence
was committed.
The applicant argues that it is clear from Convention case-law that
"birth" applies to legal status: see MARCKX v. Belgium (Eur. Court
H.R., Marckx judgment of 13.6.1979, Series A no. 32). In Application
No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66, discrimination in age in
the fixing of the level of criminal liability in the context of the
right to private life was held to be justified for the protection of
the rights and freedoms of others: Article 8 para. 2 (art. 8-2). No
such exceptions exist under Article 5 (art. 5) and discrimination can
only be justified under the jurisprudence concerning Article 14 (art.
14).
Alternatively, the applicant argues that age must be included in the
concept of "other status". The French text uses the phrase "toute
autre situation" which suggests a wide meaning to the concept.
The applicant denies that there is any objective or reasonable
justification for treating the applicant differently from those
sentenced over 16 in respect of remission, and submits that the
differences of treatment are disproportionate to the aims sought to be
achieved, for the following reasons:
1. the age at which an offender is sentenced is a matter of
chance;
2. the applicant has at all times since his conviction been
subject to the same penal measures and penal regime as those aged 16
or over;
3. an offender aged 16 or over who received the same sentence as
the applicant on the same day for the same offence would have been
granted unconditional release three years earlier than the applicant;
4. the possibility of earlier conditional release cannot be
equated with lack of remission;
5. the difference in regime between Section 206 offenders held in
"List D" schools and those held in penal institutions make them
completely different in character so as to justify different rights
under Article 5 (art. 5) ;
6. the Government suggests that the nature of the applicant's
detention was based on the need for continuous assessment. If so, the
situation is analogous to that described by the Court in the Van
Droogenbroek case (Eur. Court H.R. Van Droogenbroek judgment of
24.6.82, Series A no. 50) i.e. "monitoring the development of the
offender's personality and behaviour in order to adapt his situation
to favourable or unfavourable changes ... ".
In that case the Court held that the nature of the detention was
material for determining whether the Convention requires judicial
review of the sentence at regular intervals under Article 5 para. 4
(art. 5-4) and that such type of detention did require judicial
review. The applicant submits therefore if absence of remission is
justified on the ground that this enabled his personality changes to
be monitored, then he should have been able to have his detention
reviewed by a court at regular intervals. No such review is available
in Scotland.
THE LAW
1. Article 7 (art. 7) in conjunction with Article 14 (art. 14)
The applicant complains that the practical effect of Scottish
legislation in relation to child offenders amounts to imposing a
heavier penalty than that applicable at the time when the offence was
committed.
It is true that Article 7 (art. 7) guarantees to everyone charged with
a criminal offence that no heavier penalty should be imposed than the
one applicable at the time the offence was committed.
However, it is clear that the relevant legislation in force at the
date of commission of the offence by the applicant authorised the
length of sentence which he received and the non-availability of
remission.
It follows that this part of the application is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (art. 27-2) of the Convention.
2. Article 5 (art. 5) in conjunction with Article 14 (art. 14)
The applicant complains that he has suffered discrimination in the
enjoyment of his right to liberty, since children in England and
Wales, and adults in both jurisdictions are entitled to remission.
Article 5 (art. 5) of the Convention provides that:
"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 14 (art. 14) of the Convention provides that:
"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."
The case-law of the Commission shows that complaints concerning the
length of sentence passed after due process of law by a judge in
possession of the facts do not generally fall within the scope of the
Convention (Application Nos. 5871/72, Dec. 30.9.74, D.R. 1 p. 54,
7057/73, Dec. 13.5.76, D.R. 6 p. 127 and 8224/78, Dec. 5.12.78,
D.R. 18 p. 100).
However, where a settled sentencing policy appears to affect
individuals in a discriminatory fashion, the Commission is of the view
that this may raise issues under Article 5 (art. 5) read in
conjunction with Article 14 (art. 14).
a. Discrimination based on age
The Commission recalls its constant case-law to the effect that age
may constitute a "status" under Article 14 (art. 14), e.g. X. v. the United
Kingdom, Application No. 7215/75, Dec. 12.10.1978, D.R. 19 p. 66 and
DUDGEON v. the United Kingdom, Application No. 7525/76,
Dec. 3.3..1978, D.R. 11 p. 117.
However, it is clear that not every difference in treatment in respect
of one of the rights and freedoms contained in the Convention is
forbidden by Article 14 (art. 14). The Commission must first consider
whether the difference has an objective and reasonable justification
taking into consideration the aim and effect of the measure in
question, having regard to the principles which normally prevail in
democratic societies and second, whether there is a reasonable
relationship of proportionality between the means employed and the
aims sought to be realised.
The penal law of a State Party obviously cannot be expected to treat
child and adult offenders in the same way. The absence of remission
for child offenders sentenced under Section 206 must therefore be
looked at in the particular context of sentencing such persons to
detention. The Commission accepts that persons sentenced at such an
early age may change greatly in the course of their sentence and that
flexibility is an important prerequisite in the rules governing their
detention. The Government states that it seeks to achieve this
flexibility under this legislation by allowing the Secretary of State
to decide the type of institution to which an offender may be sent,
and by permitting release on licence at all stages of sentence, where
suitable. The Commission recalls that in this case the applicant was
considered for parole on a yearly basis from 1980-83 and that in
March 1984, the Secretary of State accepted the recommendation of the
Parole Board that he be released on licence in March 1985 after
completing satisfactorily six months in an open institution and six
months "training for freedom". The fact that the applicant did not
benefit from earlier release on licence does not, in the Commission's
view, detract from the distinctive nature of this regime of detention
which is geared to deal more flexibly with child offenders.
The Commission also recalls that it has not been made out whether in
fact the applicant would have benefited from being sentenced above the
age of 16, even with remission applying to such sentence. The judge
in sentencing him made it clear that if the applicant had been older
his sentence would have been considerably heavier.
On examination of the complaint as it has been submitted therefore,
the Commission considers that any difference in treatment finds
objective and reasonable justification in the different considerations
which apply in the sentencing of children and in the respondent
Government's policy to maintain flexibility in dealing with the
detention of child offenders. The absence of remission in this scheme
of detention is not such as to make the difference disproportionate.
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).
b. Discrimination based on geographical location
The applicant also complains that he is subject to discriminatory
treatment in that children sentenced in England are entitled to
remission, whereas those sentenced in Scotland are not so entitled.
The Commission recalls however that Article 14 (art. 14) of the
Convention protects the enjoyment of rights and freedoms of the
Convention from 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".
The applicant's complaint concerns the differences in the penal
legislation of two regional jurisdictions within the United Kingdom.
The Commission finds that any difference in treatment concerning
release on remission which results from these regional differences is
not related in any way to the personal status of the applicant. The
Commission accordingly concludes that the discrimination complained of
in this part of the application does not fail within any of the
grounds specified in Article 14 (art. 14) of the Convention.
It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)