CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 août 1994

.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. 23156/94                       by Richard O'HARA                       against Ireland        The European Commission of Human Rights (First Chamber) sitting in private on 31 August 1994, the following members being present:              MM.    A. WEITZEL President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs. M.F. BUQUICCHIO, Secretary to the Chamber,        Having regard to the application introduced on 12 October 1993 by Richard O'HARA against Ireland and registered on 3 January 1994 under file No. 23156/94.        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 facts of the present case, as submitted by the applicant, may be summarised as follows.   A.    Particular circumstances of the case        The applicant is a British citizen born in Belfast, Northern Ireland in 1953 and is currently serving a sentence of life imprisonment in Arbour Hill Prison, Dublin.        In or about 1982, the applicant was convicted of the murder of a young girl. He was sentenced by an Irish court, pursuant to section 2 of the Criminal Justice Act 1964 ("the 1964 Act"), to a term of life imprisonment.        In May 1990, the applicant's case was reviewed by the Sentence Review Group. It decided not to recommend release, transfer to an open prison or transfer to another prison closer to Northern Ireland as requested by the applicant. A further review was held in May 1992. By letter dated 8 December 1992, the applicant was informed that the Sentence Review Group declined to make a definitive recommendation to the Minister for Justice in his case at that time, but that they proposed to review his case again towards the end of 1995.        By letter dated 16 June 1993, the Minister for Justice, in response to an inquiry by a Member of Parliament of the United Kingdom on behalf of the applicant, confirmed that no distinction was made between the treatment of cases on grounds of nationality, each case being reviewed on its merits under the applicable criteria (see below at B (b) "The Sentence Review Group"). He pointed out that the average sentence served by life prisoners was 11 not 8 years as stated by the applicant.        The applicant wrote to the Legal Aid Board as he wished to take judicial review proceedings in respect of the reviews conducted by and the decisions of the Sentence Review Group. By letter dated 6 September 1993 the Legal Aid Board confirmed that he "would be unlikely to obtain legal aid through this source" in respect of the judicial review proceedings proposed because they related to a criminal matter. That letter confirmed that the Legal Aid Board provided services in accordance with the scheme of civil legal aid.   B.    Relevant domestic law and practice   (a)   The Applicant's Sentence        It is only in cases of murder, capital murder and treason that an Irish court is, by statute, bound to impose a specific custodial sentence. In all of these cases the sentence is life imprisonment.        The applicant was sentenced under section 2 of the 1964 Act which reads as follows:        "A person who but for this Act would be liable to suffer death      shall be liable to penal servitude for life."        The words "shall be liable" in this section are interpreted, under Irish law, to mean "shall". "Penal servitude" was introduced as a substitution for deportation to convict settlements over a century ago, but today there is no difference in treatment between those serving terms of imprisonment and those serving terms of imprisonment with penal servitude (The Irish Law Reform Commission Report on Sentencing, dated March 1993).   (b)   The Sentence Review Group        The Sentence Review Group is a non-statutory body established in 1989 to advise the Minister for Justice in relation to the administration of long term sentences.        All long term prisoners who have completed 7 years of their sentence may apply to have their case reviewed by the Sentence Review Group. Where the Sentence Review Group declines to recommend release, a date is set for further review within the following 3 years.        In considering whether to recommend temporary release, or other concessions, the Sentence Review Group has to have regard to the interests of the public as a whole and to the interests of the prisoner. The Sentence Review Group therefore applies the following long established criteria:        1. Would a release constitute a threat to the community?        2. Is it reasonable to grant temporary release at this particular      stage in view of the nature of the crime committed and the      offender's previous criminal record?        3. Does the offender merit temporary release having regard to his      behaviour while in prison?        4. Are there any compassionate grounds which warrant special      consideration?     COMPLAINTS   1.    The applicant complains that he has not been released though he has served over 11 years in prison. He complains about the lack of a parole board with the power to order release and in this respect claims that there is no meaningful difference between mandatory and discretionary life sentences.   2.    The applicant next complains in relation to the reviews conducted by and the decisions of the Sentencing Review Group in respect of his requests for release, transfer to an open prison or transfer to another prison closer to Northern Ireland. He considers that he is being discriminated against by the Sentence Review Group because of his nationality. The applicant also complains about the lack of legal representation before the Sentence Review Group and the delay of seven months between the date of his last review, and he being informed of the decision, which has resulted in his next review date being pushed back by seven months. Finally in this regard, the applicant also complains about a refusal by the Legal Aid Board of legal aid for his proposed judicial review proceedings.   3.    The applicant also complains that the refusals by the Sentence Review Group of his requests for a transfer to a prison closer to Northern Ireland have impacted unacceptably on his private life (visits from friends in Northern Ireland), on his family life (visits from family in Northern Ireland), and on his ability to have further christian fellowship.   THE LAW   1.    The applicant complains that there is no parole board with the power to order his release and that, in this regard, there is no difference between mandatory and discretionary life sentences.        The Commission notes that the applicant has not raised this claim under any particular Article of the Convention but the Commission considers that this complaint falls to be examined under Article 5 para. 4 (Art. 5-4) of the Convention which 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 Commission recalls that where a person is deprived of his liberty pursuant to a conviction by a competent court, the supervision required by Article 5 para. 4 (Art. 5-4) of the Convention is incorporated in the decision made by the court at the close of the judicial proceedings, unless the grounds justifying his deprivation of liberty are susceptible of change with the passage of time. In the latter circumstances the possibility of recourse to a body satisfying the requirements of Article 5 para. 4 (Art. 5-4) of the Convention is required (Eur. Court H.R., Weeks judgment of 2 March 1987, Series A no. 114, and Thynne, Wilson and Gunnell judgment of 25 October 1990, Series A no. 190-A).        The Commission further recalls that in the Weeks and Thynne, Wilson and Gunnell cases discretionary life sentences, as they had developed in the United Kingdom, were found to attract the protection of Article 5 para. 4 (Art. 5-4) of the Convention because the grounds relied on by judges in the United Kingdom in passing those discretionary life sentences were, by their nature, susceptible of change with the passage of time. This was specifically contrasted with the position in relation to mandatory life sentences, the latter being considered essentially punitive in nature because of the gravity of the offence (Weeks judgment, loc. cit. pp. 28-29, para. 58, and Thynne, Wilson and Gunnell judgment, loc. cit. p. 29 para. 74).        The Commission also recalls that, in confirming subsequently the above reasoning, the Court gave the following description of the mandatory life sentence (Eur. Court H.R., Wynne judgment of 18 July 1994 Series A no. 294-A, para. 35):        "However, the fact remains that the mandatory sentence belongs      to a different category from the discretionary sentence in the      sense that it is imposed automatically as the punishment for the      offence of murder irrespective of considerations pertaining to      the dangerousness of the offender."        In the present case, the applicant was found guilty of murder, and received the required life sentence pursuant to Section 2 of the 1964 Act. The Commission finds that it is clear that the Irish legislature ensured through section 2 of the 1964 Act that serious offences, previously attracting the death penalty, required life sentences. Thus those life sentences (and the imposition of them) are punitive in nature and based on the gravity of the offence of murder.        The Commission therefore concludes that, in this case, the initial imposition by the court of the life sentence on the applicant incorporated and satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the Convention and that his complaint in this respect is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant next complains in relation to the reviews conducted by and the decisions of the Sentence Review Group. In particular he complains about being discriminated against on grounds of nationality, the lack of legal representation before the Sentence Review Group, the delay in communicating the second decision to him and about a refusal of legal aid to allow him to take judicial review proceedings.        Given the above finding that the applicant's initial sentencing incorporated and satisfied the requirements of Article 5 para. 4 (Art. 5-4) of the Convention, the Commission considers that the complaints in relation to a lack of legal representation, delay and a refusal of legal aid for judicial review, fail to disclose any violation of the provisions of the Convention. Furthermore, the complaint in relation to the applicant being discriminated against on grounds of nationality is unsubstantiated.        Consequently, the Commission concludes that this complaint is, as a whole, manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant also complains that the refusals to transfer him to a prison closer to Northern Ireland have unacceptably impacted on his private life, his family life and on his ability to have further christian fellowship.        The Commission notes that it is not required to decide whether or not the facts alleged by the applicant, in respect of this complaint, disclose any appearance of a violation of the provisions of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        In the present case the Commission notes that the applicant did not bring a constitutional action in the domestic courts in respect of this complaint and has not, therefore, exhausted all domestic remedies available to him under Irish law (No. 15141/89, Dec. 15.2.90, D.R. 64 p. 203). Moreover, an examination of the case as submitted by the applicant does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.        It follows that this complaint is inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber        President of the First Chamber        (M.F. BUQUICCHIO)                         (A. WEITZEL)