Legal summary
September 2025
Yalahow v. the United Kingdom (dec.) - 42341/21
Decision 2.9.2025 [Section II]
Article 5
Article 5-4
Review of lawfulness of detention
Recall of prisoner released on licence while serving a fixed-term determinate sentence: inadmissible
Facts – In 2017 and 2018 respectively the applicant was convicted of two criminal offences receiving an initial determinate sentence of two years and three months followed by a further determinate sentence of one year and six months. On 31 May 2019, halfway through those fixed-term determinate sentences, and in accordance with the applicable statutory scheme, the applicant was released from prison on licence. On 31 July 2019 that licence was revoked by the Secretary of State due to behavioural concerns. A decision was taken to recall the applicant to prison and on 2 August 2019 he was returned to custody. Although the applicant’s case was referred to the Parole Board on two occasions, they declined to direct his re-release.
On 29 March 2021 after the expiry of his determinate sentences the applicant was released from imprisonment and his liability to be subject to a licence expired on the same day.
Law – Article 5 § 4:
(1) Relevant case-law – In Ganusauskas v. Lithuania (dec.), where a prisoner had been rearrested following the quashing of an order for his conditional release on the basis that the order should not have been made, the Court rejected that applicant’s complaint under Article 5 § 4 as manifestly ill-founded. The Court noted that Article 5 § 4 only applied to proceedings in which the lawfulness of detention was challenged and that the necessary supervision of the lawfulness of detention “after conviction by a competent court” had been incorporated at the outset in the applicant’s original trial and the appeal procedures against the conviction and sentence. In Brown v. the United Kingdom (dec.), the Court also rejected as manifestly ill-founded the complaint under Article Article 5 § 4 of a prisoner who had been released on licence at the two-thirds point of his sentence, but had been later recalled to prison for breach of his licence conditions. The Court recalled that where an applicant had been convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention was incorporated in the trial and appeal procedures. No new issues of lawfulness concerning the basis of the applicant’s detention had arisen on recall and no right to a fresh review of the lawfulness of his detention had arisen for the purposes of Article 5 § 4.
In contrast, in Etute v. Luxembourg the Court found that Article 5 § 4 had been applicable following the revocation of a prisoner’s conditional release. The Court again recalled that in the case of detention following a “conviction by a competent court” the review required by Article 5 § 4 was incorporated into the judgment and that provision did not require a separate review of the lawfulness of the detention. However, it noted that when new questions about the lawfulness of detention arose after the judgment, Article 5 § 4 applied again and required judicial review. The Court therefore had to determine whether new questions of legality had arisen in relation to the applicant’s re‑incarceration and his subsequent detention in the execution of his sentence and, to that end, examine the course of events from the initial conviction to the revocation of his licence and the repercussions which the various measures had had on his situation. In concluding that Article 5 § 4 had been applicable the Court considered it relevant that the decision to release the applicant on parole had constituted an interruption in the execution of the sentence imposed on him, the time spent on parole had not been counted against the length of the sentence; and that his re-incarceration had depended on a new decision, namely that of the revocation of the conditional release.
(2) Application of the principles developed in the case-law to the facts of the case – The Court’s conclusion in Brown was entirely consistent with its earlier decision in Ganusauskas. While the Court was not formally bound to follow any of its previous judgments, it was in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Therefore, in light of Etute, the Court had to determine whether it should now depart from Ganusauskas and Brown.
In that regard, it was noteworthy that in Etute the Court had not referred to either Ganusauskas or Brown, even though those decisions – and their potential incompatibility with Etute – had been discussed at some length by Judges Pinto de Albuquerque and Kūris in their Concurring Opinions. The Court had therefore been aware of its previous case-law and if it had intended to depart from it, it should have provided good reasons for doing so. Alternatively, if it had considered that the resolution of the Article 5 § 4 question might have had a result inconsistent with its previous case-law, it should have relinquished jurisdiction to the Grand Chamber. The fact that the Court did neither meant that – notwithstanding the views expressed in the Concurring Opinions – it could not be taken to have departed from its previous case-law, or to have intended its conclusions to be inconsistent with that case-law. The Court further noted that the conclusions in Etute had not been followed in any subsequent cases and therefore, had not been applied outside the specific facts of that case.
In the absence of reference in Etute to Ganusauskas or Brown, it was not clear why the Court had considered that on the specific facts of that case new issues of lawfulness had arisen following the applicant’s re-incarceration, and that Article 5 § 4 had been applicable. Insofar as it had relied on the fact that Mr Etute’s re-incarceration had depended on a new decision – the revocation of the conditional release – that had also been true of the applicant in Brown. However, the Court had also considered it relevant that the decision to release a prisoner in Luxembourg on parole had constituted an interruption in the execution of the sentence imposed on him, and the time spent on parole had not been counted against the length of the sentence. It was clear that the position in the United Kingdom – following the recall of both Mr Brown and the applicant – was entirely different from that in Luxembourg. When a determinate sentence prisoner was released on licence in the United Kingdom, that release was itself part of the execution of the sentence, meaning that time spent on conditional release continued to represent the penalty for his offending and therefore counted against the sentence. As there was no room for the sentence to be extended beyond that final end date, the decision to release the prisoner did not interrupt the execution of his sentence.
Both the present case and Brown were clearly distinguishable from Etute on that basis. Such a distinction was consistent with Weeks v. the United Kingdom, in which the Court had held that Article 5 § 4 had been applicable following the recall to prison of a prisoner serving an indeterminate sentence of life imprisonment. The Court had observed, that, unlike the case of a person sentenced to life imprisonment because of the gravity of the offence committed, the grounds relied on by the sentencing judges for deciding that the length of the deprivation of Mr. Weeks’ liberty should be subject to the discretion of the executive for the rest of his life – those grounds being social protection and rehabilitation – had been by their nature susceptible of change with the passage of time. Accordingly, there was clear precedent for distinguishing, in the context of Article 5 § 4, between sentences – such as determinate sentences – where the end date of the sentence was fixed with reference to the gravity of the offence and sentences – such as certain indeterminate sentences – where the end date was not fixed and where the grounds relied on by the sentencing judge were by their nature susceptible of change with the passage of time. The present case had undoubtedly fallen into the former category, as the end date of the applicant’s sentence had been fixed and the entirety of the sentence, whether served in prison or on licence, had represented the penalty for his offending. In contrast, in Etute the end date of the fixed sentence had ceased to be ascertainable as soon as it had been interrupted by the prisoner’s conditional release.
In light of the foregoing, the Court found no good reason to depart from its decision in Brown, where the applicant had been serving the same sentence in the same legal jurisdiction as the applicant. It therefore concluded that Article 5 § 4 did not apply following the applicant’s recall to prison as no new issues of lawfulness had arisen concerning the basis of his detention.
Conclusion: inadmissible (incompatible ratione materiae).
(See Weeks v. the United Kingdom, 9787/82, 2 March 1987; Ganusauskas v. Lithuania (dec.), 47922/99, 7 September 1999; Brown v. the United Kingdom (dec.), 968/04, 26 October 2004; Etute v. Luxembourg, 18233/16, 30 January 2018, Legal Summary)
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This summary by the Registry does not bind the Court.
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