CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 juillet 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 17143/90                       by Eric OLDHAM                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 2 July 1992, the following members being present:              MM.    F. ERMACORA, Acting President of the First Chamber                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            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 4 July 1990 by Eric OLDHAM against the United Kingdom and registered on 9 September 1990 under file No. 17143/90;         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 1948 and is currently serving a sentence of life imprisonment in H. M. Prison Nottingham.         The facts of this case as submitted by the parties may be summarised as follows.         In 1970 the applicant was sentenced to life imprisonment for manslaughter.   The Court accepted that the applicant had suffered brain damage at birth.   The applicant did not appeal against his conviction or sentence.         In 1974 the applicant underwent brain surgery to remove the damaged section of his brain.   In 1981 he was released on life licence. In 1982 the applicant married for a second time.   The applicant and his second wife are now divorced.         In 1983 the applicant's licence was revoked after he was convicted of handling a stolen credit card.   In 1984 the applicant was, once again, released on life licence.   In December 1985 the applicant had an argument with his wife.   As a result of the differences between himself and his wife, the applicant went to live in a probation hostel. Five days after this and upon recommendation of an officer of the probation service who considered the applicant's wife to be "afraid of him", the Home Secretary revoked the applicant's licence under Section 62 (2) of the Criminal Justice Act 1967.   The probation service recommended that the applicant be recalled to prison and he was recalled on 16 December 1985, making written representations to the Secretary of State about one week later.   The Parole Board confirmed the revocation of the applicant's licence on 2 May 1986.         On 27 October 1989 the applicant was notified that the Home Secretary had decided, upon the recommendation of the Parole Board and in consultation with the Judiciary, that, subject to the applicant's continued good conduct and to the satisfactory completion of a period of six months in open conditions and nine months in a pre-release employment scheme, the applicant should be released on life licence.         On 23 November 1989 the applicant was transferred to Leyhill Open Prison.   He began working at the local branch of NACRO (the National Association for the Care and Resettlement of Offenders).   On 6 December 1989 the applicant was notified that his provisional release date was 22 February 1991.         On 23 March 1990 the applicant failed to return to Leyhill at the correct time.   A taxi driver had taken him to Bristol Prison instead of to a bus stop from where the applicant and other prisoners were to be picked up and taken to Leyhill.   The applicant was received into Bristol Prison and remained there for five weeks.   At the end of this period the applicant was informed that the Home Secretary had decided that he should spend an additional nine months at Leyhill and consequently that his provisional release date had been put back to 25 October 1991.   On 8 May 1990 the applicant resumed his work at NACRO. On 9 May 1990 the applicant failed to return to Leyhill.   On 10 May 1990 the applicant was received into Bristol Prison.         On 25 June 1990 the applicant was notified that the Home Secretary had decided to cancel the applicant's provisional release date.   In addition, the applicant was informed that he was to be transferred to a Category C establishment (he had previously been a Category D prisoner).   The applicant was furthermore informed that he was to receive a review in September 1991.         The applicant petitioned the Secretary of State for the purpose of asking for his recall to be considered by a body other than the Parole Board.   This petition was refused.   The applicant then petitioned the Court of Appeal for the purpose of seeking leave to appeal out of time.   This petition was also refused.     COMPLAINTS         The applicant complains that his rights under Article 5 para. 4 of the Convention have been violated by virtue of the fact that he is unable to have his continued detention reviewed by an independent body capable of ordering his release.   He further complains that his rights under Article 5 para. 5 of the Convention have been violated on the ground that he was not given an enforceable right to compensation under United Kingdom law in respect of the violation of Article 5 para. 4 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 July 1990 and registered on 9 September 1990.         On 2 September 1991, the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the applicant's complaint under Article 5 para. 4 of the Convention. The Commission declared the remainder of the application inadmissible.         The Government's observations were submitted on 20 November 1991.     THE LAW         The applicant, who is serving a discretionary life sentence, complains of the absence of any procedure under domestic law by which he can have reviewed by a court the continued lawfulness of his detention.   He invokes Article 5 para. 4 and para. 5 (Art. 5-4, 5-5) of the Convention, which provide :              "(4) 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.              (5) Everyone who has been the victim of arrest or detention            in contravention of the provisions of this article shall            have an enforceable right to compensation."         The Government have made no objection to admissibility.           The Commission recalls that in the Thynne, Wilson and Gunnell cases (Eur. Court H.R., judgments of 25 October 1990, Series A no. 190A) the Court held that the applicants who were serving discretionary life sentences were entitled under Article 5 para. 4 (Art. 5-4) of the Convention to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court.   The Court found that neither judicial review nor the review by the Parole Board satisfied these requirements. The Court also found, in the case of Wilson, a violation of Article 5 para. 5 (Art. 5-5) in that there was no enforceable right to compensation under the law of the United Kingdom in these circumstances.         Consequently, the Commission considers that the application raises complex issues of law and fact under the Convention, the determination of which should depend on the merits.   It must therefore be declared admissible, no other ground for declaring it inadmissible having been established.           For these reasons, the Commission unanimously           DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,       without prejudging the merits of the case.       Secretary to the First Chamber    Acting President of the First Chamber              (M. de SALVIA)                       (F. ERMACORA)