RYAN v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 32875/96

                      by John RYAN

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, the following members being present:

           MM    M.P. PELLONPÄÄ, President

                 N. BRATZA

                 E. BUSUTTIL

                 A. WEITZEL

           Mrs   J. LIDDY

           MM    L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 M. VILA AMIGÓ

           Mrs   M. HION

           Mr    R. NICOLINI

           Mrs   M.F. BUQUICCHIO, Secretary to the 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 24 July 1996 by

John RYAN against the United Kingdom and registered on 5 September 1996

under file No. 32875/96;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     13 August 1997 and the observations in reply submitted by the

     applicant on 6 and 10 October 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1964 and currently in

HM Prison Full Sutton, York. He is represented before the Commission

by Ms K. Akester, a solicitor working for "Justice" in London. The

facts as submitted by the parties may be summarised as follows.

A.   The particular circumstances of the case

     On 14 November 1984, the applicant aged 20 was convicted of

murder in respect of an incident in which the applicant went with his

uncles to commit robbery at a scrap metal yard during which the owner

was killed by one of his co-defendants. He was sentenced to custody for

life pursuant to section 8 of the Criminal Justice Act 1982.

     Following conviction, the trial judge recommended that the

applicant serve a tariff (period corresponding to deterrence and

retribution) of 12 years. The trial judge's report as later quoted by

the Secretary of State stated, inter alia,:

     "Ryan was very young and much under the influence of Joyce.

     However he knew the gun was loaded and that it would be used if

     Joyce deemed it necessary."

     The Lord Chief Justice agreed with the judge's recommendation.

The Secretary of State imposed a tariff of 20 years on the applicant

having regard to his policy statement of 30 November 1983 which stated

that "murderers by firearm in the course of a robbery can normally

expect to serve at least 20 years."

     Following a judgment in the House of Lords of 24 June 1993, the

applicant received by letter of 28 March 1994 from the Tariff Unit

information concerning the substance of the judicial recommendations

on tariff and the decision of the Secretary of State concerning the

tariff set at 20 years. The applicant was informed that the Secretary

of State was prepared to consider any written representations made by

the applicant in connection with tariff.

     By letter dated 15 December 1995, the applicant's solicitor made

written representations, pointing out that the applicant was aged 18

at the time of the offence and was convicted on the basis of joint

enterprise, not having fired the firearm himself and that a 66%

increase in the judicial view of tariff was in itself surprising.

     By letter dated 8 November 1996, the applicant was informed by

the Lifer Group that the Secretary of State had decided to set the

tariff at 16 years.  In his statement of reasons for setting a tariff

higher than that recommended by the judiciary, it was stated, inter

alia:

     "The Secretary of State notes that you were convicted in 1984 of

     the murder of a 54 year old man and sentenced to custody for

     life.  You went with your co-defendants to commit a robbery at

     a scrap metal yard.  Armed with a starting pistol, you entered

     the premises with one of the co-defendants who was carrying a

     loaded sawn-off shotgun.  You knocked the manager to the ground

     and held him at bay with an air pistol, during which period your

     co-defendant sought out the owner and shot and killed him.

     The Secretary of State has taken into account your age at the

     time.  He accepts that you played a lesser part in the murder

     than your co-defendant who killed the victim.  He also accepts

     that you had come under the influence of this man (who was your

     uncle) and whom the trial judge described as ruthless and as

     having a dreadful record.  In setting your tariff, the Secretary

     of State has disregarded your previous convictions.

     The Secretary of State does not accept that a tariff of 12 years,

     as recommended by the judiciary is sufficient to meet the

     requirements of retribution and deterrence in your case.  He

     attaches weight to the fact that you willingly took part in a

     robbery knowing that a loaded sawn-off shotgun was being carried

     and would be used if necessary, and to the fact that you carried

     a starting pistol.  He has had regard to the fact that you used

     violence during the course of the robbery."

B.   Relevant domestic law and practice

     Types of sentence for murder

     Under English law there are three forms of sentence for convicted

murderers:

     (1) An offender over the age of 21 is sentenced to life

     imprisonment. Section 1(1) of the Murder (Abolition of Death

     Penalty) Act 1965 states:

           "No person shall suffer death for murder, and a

           person convicted of murder shall [except in the

           case of (2) and (3) below] be sentenced to

           imprisonment for life".

     (2) An offender under the age of 21 is sentenced to custody for

     life unless the offender falls within (3) below. Section 8(1) of

     the Criminal Justice Act 1982 states:

           "Where a person under the age of 21 is convicted

           of murder or any other offence the sentence for

           which is fixed by law as imprisonment for life,

           the court shall sentence him to custody for life

           unless he is liable to the detained under

           section 53(1) of the Children and Young Persons

           Act 1993 (detention of persons under 18

           convicted of murder)".

     (3) An offender aged between 10 and 18 (at the date of the

     offence) is sentenced to detention during Her Majesty's pleasure.

     Section 53(1) of the Children and Young Person's Act 1933 (as

     amended) states:

                  "Punishment of certain grave crimes

           A person convicted of an offence under the age

           of eighteen years at the time the offence was

           committed shall not, if he is convicted of

           murder, be sentenced to imprisonment for life,

           nor shall sentence of death be pronounced on or

           recorded against any such person; but in lieu

           thereof the court shall (notwithstanding

           anything in this or any other Act) sentence him

           to be detained during Her Majesty's pleasure,

           and if so sentenced he shall be liable to be

           detained in such place and under such conditions

           as the Secretary of State may direct."

     Prior to the 1982 Act, young adult murders were sentenced to

imprisonment for life with other adults pursuant to section 1(1) of the

Murder (Abolition of Death Penalty) Act 1965. Besides introducing the

sentence of custody for life, the 1982 Act also introduced

modifications in the custodial sentences generally applying to

offenders between the ages of 17 and 21. The detention centre order was

introduced to cater for custodial sentences of four months or less,

while youth custody applied to longer custodial sentences. The White

Paper setting out the legislative intent behind Part I of the 1982 Act

stated, inter alia:

     "The Government's approach is based on the belief that

     special efforts should be made to provide young people with

     the training and education they need at a crucial period of

     their life when they are trying to find their identity as

     adults. This is particularly important for young offenders

     who may be at a turning point which decides whether they

     will become recidivists or responsible citizens. There is

     a need for separate facilities for young adults in custody

     and the Government considers that, except for those serving

     shorter sentences, the regime should be modelled on the

     best of the borstal system, providing a range of education,

     work, and social training which is designed to cope with

     the normal demands of modern society without reverting to

     crime."

     Release on licence

     Persons sentenced to mandatory life imprisonment for murder and

discretionary life imprisonment, custody for life and those detained

during Her Majesty's pleasure have a "tariff" set in relation to the

period of imprisonment they should serve in order to satisfy the

requirements of retribution and deterrence. After the expiry of the

tariff, the prisoner becomes eligible for release on licence.

Applicable provisions and practice in respect of the fixing of the

tariff and release on licence have been subject to change in recent

years, in particular, following the coming into force on 1 October 1992

of the Criminal Justice Act 1991.

     Under the relevant provisions of the Criminal Justice Act 1967

the regime applying to the release of discretionary life prisoners and

prisoners sentenced for offences of murder was the same. Section 61(1)

of the 1967 Act (as amended) provided inter alia that:

     "The Secretary of State may, if recommended to do so by the

     Parole Board, release on licence a person serving a

     sentence of imprisonment for life or custody for life or a

     person detained under section 53 of the Children and Young

     Persons Act 1933 (young offenders convicted of grave

     crimes), but shall not do so in the case of a person

     sentenced to imprisonment for life or custody for life or

     to detention during Her Majesty's pleasure or for life

     except after consultation with the Lord Chief Justice of

     England and the trial judge if available."

     The 1991 Act instituted changes to the regime applicable to the

release of discretionary life prisoners following the decision of the

European Court of Human Rights in the case of Thynne, Wilson and

Gunnell v. the United Kingdom (judgment of 25 October 1990,

Series A no. 190-A).

     Pursuant to section 34 of the 1991 Act, after the tariff has

expired a discretionary life prisoner may require the Secretary of

State to refer his case to the Parole Board which has the power to

order his release if it is satisfied that it is no longer necessary for

the protection of the public that the prisoner should be confined.

Pursuant to the Parole Board Rules 1992 which came into force on

1 October 1992, a prisoner is entitled to an oral hearing, to

disclosure of all evidence before the Parole Board and to legal

representation. He is also entitled to call witnesses on his behalf and

to cross-examine those who have written reports about him.

     The regime applicable to prisoners sentenced for offences of

murder has, however, been preserved within section 35 (in part II) of

the 1991 Act.  Section 35 of the 1991 Act provides insofar as relevant:

     "(2) If recommended to do so by the Board, the Secretary of State

     may, after consultation with the Lord Chief Justice together with

     the trial judge if available, release on licence a life prisoner

     who is not a discretionary life prisoner."

     Section 43(2) of the 1991 Act provides as follows:

     "(2)... applies to persons

     serving -

     (a)   sentences of detention during Her Majesty's pleasure

           or for life under section 53 of the 1933 Act; or

     (b)   sentences of custody for life under section 8 of the

           1982 Act,

     as it applies to persons serving sentences of imprisonment

     for life."

     The index for determining whether re-detention is justified is

that of dangerousness, meaning a consideration of whether the offence

constitutes an unacceptable risk of physical danger to the life or limb

of the public (see R v. Secretary of State for the Home Department, ex.

parte Prem Singh, unreported, transcript pp. 26F-27B; and Eur. Court

HR, Singh v. the United Kingdom judgment of 21 February 1996, at

para. 39).

     Further developments occurred in relation to persons convicted

of murder between the ages of 10 and 18 and detained during

Her Majesty's pleasure. In light of the judgments of the European Court

of Rights in the cases of Singh v. the United Kingdom and Hussain v.

the United Kingdom  (Eur. Court HR, Singh v. the United Kingdom of

21 February 1996, Reports 1996-I, p. 280; and Eur. Court HR, Hussain

v. the United Kingdom judgment of 21 February 1996, Reports 1996-I,

p. 252), the Secretary of State announced, on the 23 July 1996, the

introduction of interim measures taking effect from 1 August 1996 which

changed the procedure under which the cases of prisoners detained

during Her Majesty's pleasure were reviewed by the Parole Board.

      Pursuant to these measures the review is now in the form of an

oral hearing at which the prisoners are entitled to legal

representation and to examine and cross-examine witnesses. Prisoners

will also normally receive full disclosure of all material relevant to

the question of whether they should be released prior to the hearing.

Section 28 of the Crime (Sentences) Act 1997 now provides that once an

offender serving a sentence of detention during Her Majesty's pleasure

for murder has served the tariff period set by the Secretary of State,

the Parole Board decides whether it is safe to release that offender

on licence.

COMPLAINTS

     The applicant submits that his detention is based on a special

form of sentence devised for those between 18 and 21 years and is

distinguishable from mandatory life sentences for those over 21. By

1982, it was clear that the detention of any person between 18-21 was

not for life and that the sentence was not intended to order lifelong

custody as a punishment. The legislature's express selection in 1982

of a special form of sentence for this age group reflects this position

and the recognition of the need for sentences on those under 21 to

contain a substantial rehabilitative element and not to be wholly

punitive. In light of these considerations, he submits that the fixing

of his punitive tariff should attract Article 5 para. 4 safeguards. In

this respect he complains that:

- the decision was taken by the executive rather than the judiciary

- the decision was taken without affording him an oral hearing and an

opportunity to put his case in person as to what the length of tariff

should be.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 24 July 1996 and registered on

5 September 1996.

     On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

13 August 1997. The applicant replied on 6 and 10 October 1997.

     On 16 September 1997 the Commission granted the applicant legal

aid.

THE LAW

1.   The applicant complains about the fixing of his punitive tariff,

and in particular, that the decision was taken by the executive rather

than the judiciary and without affording him an oral hearing and an

opportunity to put his case in person as to what the length of tariff

should be. These complaints have been examined under Articles 5 para. 4

and Article 6 para. 1 (Art. 5-4, 6-1) of the Convention.

i.   Article 5 para. 4 (Art. 5-4) of the Convention

     Article 5 para. 4 (Art. 5-4) provides:

     "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 Government submit that for the purposes of Article 5 para. 4

(Art. 5-4) the sentence of custody for life for a young adult murderer

is to be equated with the mandatory life sentence for an adult

murderer. The sentence of custody for life is, like a mandatory life

sentence, essentially punitive in nature and imposed because of the

grave nature of the offence of murder. The sentence expressly imposes

custody (not detention) for life (not for an indefinite period) as does

a mandatory life sentence. It is not a sentence which may be imposed

on the basis of the assessment of the offender's character and mental

state and of his/her resulting dangerousness to society, which requires

that any developments in the offender's personality and attitude as

he/she grows older must be taken into account. The sentence is imposed

automatically by the judge as a punishment for the offence of murder

in all cases where persons between the ages of 18 and 21 convicted of

murder regardless of their mental state or dangerousness. The only

explanation for this is that Parliament thought that such a grave crime

deserves to be punished by the loss of liberty for life.

     The Government explain, moreover, that the sentence imposed on

a murderer aged between 18 and 21 years is custody for life (not

mandatory life imprisonment) as a reflection of the place where the

sentence is served until the age of 21.  Prior to 1982, offenders aged

18 to 21 were imprisoned in an adult prison. From 1982, they were

normally kept in detention centres until young offender institutions

were established in 1988. Other than the place in which the sentence

of custody for life is served until the age of 21, there is no

distinction, either in law or in practice, between the treatment after

the sentence of those between the ages of 18-21 and those over the age

of 21. The change introduced in 1982 in the description of the sentence

was simply to reflect the fact that, after 1982, they were not

"imprisoned".

     Alternatively, the Government submit, if the applicant's case is

that, as a matter of domestic law, the proper interpretation of the

sentence of custody for life is that it is not a mandatory life

imprisonment entitling the Secretary of State to set a tariff period,

then the applicant has a domestic remedy by way of judicial review as

in R v. Secretary of State for the Home Department ex parte Thompson

and Venables (1997 3 WLR 23).

     Moreover, if contrary to their submissions, the sentence of

custody for life is more closely analogous to a detention during

Her Majesty's pleasure, the Government would accept that, in accordance

with the Court's judgments in Thynne, Gunnell and Wilson v. the United

Kingdom and Abed Hussain and Prem Singh v. United Kingdom (Eur. Court

HR, judgments op. cit.), the applicant is entitled, after the expiry

of his tariff, to have the issue of his release into the community on

licence determined by a judicial body such as the Parole Board.

However, the Government would still not accept that Article 5 para. 4

(Art. 5-4) prohibits the Secretary of State from deciding on the

appropriate tariff period. Since the purpose of the sentence is at

least partly punitive, young adult offenders sentenced to determinate

periods of custody must also serve a tariff period. The punitive period

is not subject to change over time by reason of developments in the

mental stability or dangerousness of the offender, but depends on the

facts and circumstances of the offence and the offender as at the date

when the offence was committed. Therefore, in relation to the tariff,

Article 5 para. 4 (Art. 5-4) is satisfied by the original trial and

sentence.

     The applicant submits that under domestic law there are three

distinct custodial sentences for offenders convicted of murder.

Parliament has differentiated between the three age-groups in a way

that reflects the differences in the maturity of each. For adult

murderers between the ages of 18 and 21 it has created an offence of

custody for life where there is a clear and substantial rehabilitative

element in the sentence. For children between the ages of 10 and 18 it

has created a sentence, detention during Her Majesty's pleasure, which

expressly emphasises its indeterminacy in order that punitive

considerations should not thwart the object of securing the welfare and

rehabilitation of the offender.

     While the sentence of custody for life is not identical to a

sentence of detention during Her Majesty's pleasure, the applicant

contends that is not identical to the sentence of mandatory life

imprisonment either. The imposition of a "life" custody is not

determinative of the issue whether the sentence is imposed as a wholly

punitive sanction of loss of liberty for life. Similarly, the automatic

imposition by the judge of the sentence of custody for life in all

cases where persons between the ages of 18 and 21 are convicted of

murder, does not mean that the sentence was imposed because of the

gravity of the offence. As in the case of offenders who are sentenced

to detention at Her Majesty's pleasure, offenders who are sentenced to

custody for life are also young, not yet fully matured and can also be

considered as potentially dangerous by reason of the offence they have

committed. The sentence of custody for life is not, therefore, imposed

solely because of the gravity of the offence but is also based on

considerations such as the offender's young age, immaturity and danger

to society.

     Further, the applicant submits that, the explanation given by the

Government that the sentence imposed on a murderer aged between 18-21

is custody for life because of the place where the sentence is served

until the age of 21, ignores the rationale for the creation of the

sentence, this being, not simply to separate young adults from older

adults but to create a custodial sentence with a preventative and

rehabilitative object.

     The applicant maintains his complaint that the fixing of his

punitive tariff by the Secretary of State, a member of the Executive,

rather than the judiciary is not compatible with the requirements of

Article 5 para. 4 (Art. 5-4) of the Convention and in particular, that

he was denied an oral hearing and an opportunity to put his case in

person as to what the length of tariff should be.

     In response to the Government's submission that if the sentence

of custody for life is not analogous to a mandatory life imprisonment

the applicant has a domestic remedy by way of a judicial review, the

applicant submits that the issues which are raised under the Convention

cannot be resolved in the domestic courts since the statutory framework

which places the power to determine issues of release within the

discretion of the Secretary of State (rather than an independent and

impartial tribunal) cannot be challenged.

     The Commission recalls that the Government has submitted that the

applicant has a domestic remedy in respect of any allegations under

domestic law that the Secretary of State is not entitled to set a

tariff period or concerning the correct classification of the type of

detention. It observes that the Government has not expressly invoked

Article 26 (Art. 26) of the Convention in this respect. However, having

regard to its conclusions below, it finds it unnecessary to determine

whether or not the applicant has complied with the requirements of

Article 26 (Art. 26) of the Convention as regards exhaustion of

domestic remedies.

     The Commission notes that the central issue in the present case

is whether a sentence to custody for life, given its nature and

purpose, is to be considered as analogous to an indeterminate type of

sentence governed predominantly by considerations of risk or factors

relating to the personality or youth of the offender or rather to a

mandatory sentence of life imprisonment.

     The Commission recalls that in the Wynne case the Court

distinguished a mandatory life sentence for murder from a discretionary

life sentence on the basis that it has an essentially punitive

character and is imposed automatically because of the inherent gravity

of the offence (Eur. Court HR, judgment of 18 July 1994, Series A

no. 294, p. 14, para. 35) Consequently, the Court found that as regards

mandatory life sentences applying to adults over the age of 21, the

guarantees of Article 5 para. 4 (Art. 5-4) were satisfied by the

original trial and appeal proceedings and that accordingly Article 5

para. 4 (Art. 5-4) conferred no additional right to challenge the

lawfulness of continued detention or re-detention following revocation

of the life licence (see Wynne v. the United Kingdom, op. cit., p. 15,

para. 36).

     The Commission further recalls that in the cases of Prem Singh

and Abed Hussain v. the United Kingdom, the Court held that a sentence

of detention during Her Majesty's pleasure for convicted young persons

(between the ages of 10 and 18) could only be justified by

considerations which centred on an assessment of the young offender's

character and mental state and of his or her resulting danger to

society, which had to take into account any developments in the young

offender's personality and attitude as he or she grew older (Eur. Court

HR, judgments of 21 February 1996, Reports 1996-I, pp. 252 and 280).

The Court considered that the sentence was imposed because of the

presence of factors which were susceptible to change over time, namely,

the mental instability and dangerousness of the offender. Accordingly,

it held that prisoners serving a detention during Her Majesty's

pleasure were entitled to take proceedings at reasonable intervals to

have the lawfulness of their detention decided by a court where the

tariff period of their sentence has expired (see eg. Eur. Court HR,

Abed Hussain v. the United Kingdom, op. cit., p. 269, para. 54).

     The Commission finds that custody for life is similar to a

mandatory life imprisonment for murder in that, like the latter, it has

an essentially punitive character and is imposed because of the

inherent gravity of the offence. The Commission is unable to agree with

the applicant's submission that the sentence of custody for life, as

in the case of detention during Her Majesty's pleasure, is based on

considerations such as the offender's immaturity and danger to society

which effectively suggest the existence of factors which may change

over time thereby requiring periodic judicial review of the lawfulness

of the continued  detention. It is not readily apparent that any

striking or significant changes will occur in the personality and

mental capacities of 18 to 21 years olds as may be the case with 10 to

18 year olds. Nor are there any characteristics in the statutory

provisions, or in the origins of the sentence of custody for life, or

in the applicable practice relating to the sentence, which can be

identified as pertaining to an indeterminate term of detention with a

preventative and rehabilitative purpose. The changes in the type of

custodial sentences applicable to all young adult offenders introduced

by the 1982 Act may have been motivated in a general sense by

considerations of rehabilitation and prevention but the Commission does

not find any indication that the legislature intended thereby to alter

for young adult murderers what had hitherto been a primarily punitive

sentence based on the gravity of the offence.

     Accordingly, the Commission considers that the guarantee of

Article 5 para. 4 (Art. 5-4) was satisfied by the original trial and

confers no additional right for the applicant to challenge the

lawfulness of his continued detention subject to a "tariff" period

fixed by the Secretary of State.

     It follows that the applicant's complaints under Article 5

para. 4 (Art. 5-4) as to the tariff-fixing procedures must be rejected

as manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

ii.  Article 6 para. 1 (Art. 6-1) of the Convention

     Article 6 para. 1 (Art. 6-1) provides in its first sentence:

     "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 Government argue that if, as submitted above, the sentence

of custody for life is analogous to a mandatory life sentence,

Article 6 para. 1 (Art. 6-1) is satisfied by the original trial and

sentence, since the criminal charge against the applicant was

determined at the trial and the applicant was sentenced to custody for

life as punishment for the grave offence of murder.  The legality of

his continued detention is a matter governed by Article 5 para. 4

(Art. 5-4) which recognises that the setting of the tariff is part of

an administrative regime by which the severity of the punishment of

custody for life (or the mandatory life sentence for an adult) is

mitigated by consideration being given to release on licence at an

earlier stage than the prisoner has any legal right to demand. As the

Court emphasised in its judgment in Wynne v. the United Kingdom, the

administrative arrangements for setting a tariff, and thereafter

considering the safety and acceptability of release, fall well within

the scope of the punishment imposed at the original trial (Eur. Court

HR, judgment of 18 July 1994, op. cit.).

     Even if (contrary to the submissions of the Government) the

sentence of custody for life is more closely analogous to a sentence

of detention during Her Majesty's pleasure than to a mandatory life

sentence, the Government submit that the setting of the tariff still

does not involve any breach of Article 6 para. 1 (Art. 6-1) since the

setting of the tariff does not determine any criminal charge against

the applicant.

     The applicant submits that the procedure for fixing the tariff

involves the determination of a criminal charge to which Article 6

para. 1 (Art. 6-1) of the Convention. He contends that the tariff

setting exercise effectively determines the punishment following from

a finding of guilt and has a punitive purpose. It therefore should

attract the guarantees of Article 6 (Art. 6) as regards the necessity

for an impartial and independent tribunal which provides for the proper

and fair participation of the defendant.

     The Commission recalls that Article 6 para. 1 (Art. 6-1) applies

to the sentencing part of the determination of a criminal charge.

However, the Commission notes that, where life imprisonment is imposed

in respect of murder, the sentencing is carried out by the trial judge

after the accused has been convicted. Life imprisonment for murder is

a mandatory sentence automatically imposed by law with regard to the

severity of the offence irrespective of considerations of the

dangerousness of the offender (Eur. Court HR, Wynne v. the United

Kingdom of 18 July 1994, op. cit., p. 14, para. 35). It is in a

distinct category from discretionary life sentences and sentences of

detention during Her Majesty's pleasure which are indeterminate and

whose character and purpose are identifiably different, being justified

primarily by considerations of the offenders' character, mental state

or age and their resulting dangerousness, which factors may change over

time (eg. Eur. Court HR, Thynne, Wilson and Gunnell v. the United

Kingdom judgment of 25 October 1990, Series A no. 190-A, p. 30, para.

76 and Hussain v. the United Kingdom judgment of 21 February 1996, op.

cit., p. 269, paras. 53-4).  The tariff-fixing procedure in respect of

mandatory life prisoners therefore must be regarded as an

administrative procedure governing the implementation of the sentence

and not as part of the determination of the sentence itself.

     The Commission has found above in the context of Article 5

para. 4 (Art. 5-4) of the Convention that sentences of custody for life

are mandatory sentences rather than indeterminate sentences based on

factors of prevention or the offender's youth or personality.

Consequently, the Commission finds that Article 6 para. 1 (Art. 6-1)

does not apply to the fixing of the applicant's tariff. It follows that

this complaint 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.   The applicant also submits, in the alternative, that to impose

on young adults a mandatory life sentence would constitute an inhuman

punishment in violation of Article 3 (Art. 3) of the Convention, which

provides:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Commission recalls that there is no incompatibility with the

Convention in the imposition of a life sentence as a security or

retributive measure in a particular case or in a decision to keep a

recidivist or habitual offender at the disposal of the Government

(Weeks v. the United Kingdom, Comm. Report 7.12.84, para. 72, Eur.

Court HR, Series A no. 114, p. 43). While in the cases concerning

detention during Her Majesty's pleasure, the Court commented that a

sentence pursuant to which young persons forfeited their liberty for

the rest of their lives might raise issues under Article 3 (Art. 3) of

the Convention (see eg. Eur. Court HR, Hussain judgment, op. cit., p.

269, para. 53), the Commission considers that these remarks apply to

sentences of life imprisonment imposed on children under the age of 18

to whom special considerations apply. It does not find that the

imposition of a mandatory sentence of life imprisonment in respect of

the offence of murder committed by young adults between the ages of 18

and 21 discloses treatment or punishment prohibited by Article 3

(Art. 3) of the Convention.

     It follows that this complaint must also 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, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                            M.P. PELLONPÄÄ

     Secretary                                  President

to the First Chamber                      of the First Chamber

 

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